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Quick Thoughts on the (Domestic) Legal Basis for Air Strikes in Iraq

Jack Goldsmith
Thursday, August 7, 2014, 2:03 PM
As Wells notes, the Obama administration is contemplating air strikes in Iraq to protect threatened religious minorities there.

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As Wells notes, the Obama administration is contemplating air strikes in Iraq to protect threatened religious minorities there. Setting aside the moral and strategic merits of such strikes, how might they be consistent with domestic law?
The President has three possible legal bases for the strikes.
The first is the 2001 AUMF.  The problem with relying on that statute is that ISIS (or IS) appears to have few if any remaining connections to the “organizations, or persons . . . [who] planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.”  It seems a stretch to say that ISIS is an associate of al Qaeda.  (But see the Corker-Preston exchange here).
The second in the 2002 AUMF, which provides: “The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to . . . defend the national security of the United States against the continuing threat posed by Iraq.”  As I argued a few months ago:
The relatively narrow original purpose of this statute is captured in its preambular language.  But what counts is the operative text of the authorization.  That text gives the President the discretion to determine when the use of the U.S. Armed Forces is necessary and appropriate to defend U.S. national security against the continuing threat posed by Iraq (not the government of Iraq, not Saddam Hussein, but Iraq), and authorizes the President to use those forces in that circumstance.  It is not at all hard to interpret this statute to authorize the President to use force today to defend U.S. national security from the threat posed by the ISIS-induced collapse of Iraq.
(Some (see, e.g. here and here) disagree with my interpretation.)  For the 2002 authorization to work, the President would need to determine that air strikes against ISIS to protect religious minorities in Iraq would further U.S. national security interests; but that should not be hard to do.  The main hurdle to relying on the 2002 authorization is that National Security Advisor Susan Rice has disclaimed its relevance and urged Congress to repeal it.  (For criticism of that position, see here.)
The third basis is the President’s inherent power under Article II.  Given the administration’s distaste for the 2002 AUMF, this is likely the way the President will go.  If the Iraq strikes are conceptualized as pure humanitarian intervention, they would go further than even the Kosovo and Libya precedents, for they would lack both congressional authorization or any plausible U.N. or regional organization support.  But I expect that the administration will emphasize the self-defensive elements of attacking ISIS, bringing an Iraq strike closer to the fold of past Executive branch precedents.  (It will be tricky and interesting to see how the administration explains that it is in U.S. self-defense to attack and degrade ISIS in this context and not in others in Iraq and Syria.  See below.)
The prudent move would be to rely on both statutory and constitutional bases for the Iraqi air strikes. But the larger politics of the 2001 and 2002 AUMFs will likely lead the President to rely on Article II alone.  If I am right, this is an example of how a powerful Islamist threat requires the use of force, and the absence of plausible (or, in the case of the 2002 AUMF, politically palatable) statutory authorization forces the President into reliance on Article II as the basis for force.  Wanting to declare the statutory war against Islamist terrorists over, the administration has long maintained that the residual use of Article II in this context will be exceptional and limited.  Given the large and growing nature of the Islamist threat, not just in Syria and Iraq, but elsewhere, I do not see how the President can protect U.S. national security interests with exceptional and limited uses of force under Article II.  Put more simply, the threat is not limited, and neither can (or will) be our response.  The current crisis in Iraq might be a test of this view, and of whether the Congress and the nation are comfortable with a President using force in its name under the broad, unilaterally determined parameters of self-defense, or whether it wants more formal and defined input and guidance and limitations from the legislature.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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