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Published by The Lawfare Institute
A few days ago I discussed why President Obama is shying away from seeking congressional authorization to use force against The Islamic State (IS, or ISIS, or ISIL). But as the aims and scope of U.S. military involvement against IS expand on a daily basis, the case for the President getting Congress formally on board continues to grow. That case, as I see it, is as follows. * One of the main reasons the President had a hard time convincing Congress to support the use of force in Syria last summer was that it was relatively difficult to explain the national interest in using such force. Not so with the use of force against IS. Many have described IS in recent weeks as an enormous threat to U.S. national security. Secretary of Defense Hagel said yesterday that IS is “an imminent threat to every interest we have,” a terrorist group that is “as sophisticated and well-funded as any group that we have seen,” a threat “beyond anything that we've seen.” He implied that IS presents a greater threat to the United States than did al Qaeda before 9/11. In this circumstance it should not take strenuous leadership or a great deal of political capital to get Congress on board. * Several stories this morning, picking up on hints in General Dempsey’s statements yesterday, suggest that the United States will eventually need to use force in Syria, including Special Operations Forces on the ground, to defeat IS. Such an expansion of the conflict by itself would enhance the case for congressional authorization. The deployment of unilateral force in Syria would be especially hard for the President to explain in light of his eloquent speech a year ago on why congressional authorization was necessary, as a prudential matter, for the deployment of force in Syria in response to Assad’s use of chemical weapons. The use of force in Syria against IS would be broader and take longer than the pinprick strikes planned for Syria last year, and would likely require many Special Operations Forces on the ground in Syria. The question thus becomes: Why does the President think he needs congressional authorization for limited humanitarian force in Syria but not for longer-term and more dangerous uses of force in Syria in the national defense, force that entails broader strategic consequences and almost certainly a greater threat to U.S. troops? That is a tricky question to answer, I think. (The answer cannot be that the President has independent constitutional power to use force now in Syria in self-defense, for he claimed independent constitutional power to use force in Syria last year as well. The question is: Why was it prudent to seek congressional support last year but not now?) * The President must eventually educate the nation about why the United States is going to be deploying significant treasure and possibly some blood in Iraq and probably Syria to defeat IS. As noted above, the case in theory is not hard to make. But a mere speech from the Oval Office will not do the trick if the President wants the nation to understand the stakes and risks, and wants to get the American People truly behind the effort. Only an extended and informed and serous national debate can do that, and such a debate can only occur if the President asks for Congress’s support. Raising the stakes in this way goes very much against the grain of White House efforts in recent years to suggest that the threat is diminishing, that the war against Islamists is winding down, and the like. It will be especially hard for the White House since the President has wanted to put Iraq behind him and to avoid military involvement in Syria. But events have now overtaken the White House’s wishful thinking (and indeed, were likely exacerbated by it). The President would be wise to acknowledge this reality and prepare the nation. * Congressional authorization to use force will give the President’s military and related actions against IS enormous political legitimacy, and will significantly spread the political risk when things go badly, as they invariably will. Congressional authorization will not stop some members of Congress from carping from the sidelines. But it will force every member of Congress to take a stand, and it will diminish the rate and significance of carping down the road. Congressional authorization will also protect the President politically to some degree should IS succeed in a strike on the U.S. homeland (as many are now warning is possible). For it will demonstrate in a high-profile manner that the President understood the stakes beforehand and did everything he could to prepare the nation for the threat and address it. Recall that the most serious charge against the Bush administration after 9/11 was that it failed to take seriously enough al Qaeda’s threat signals. President Obama has already been accused of this with respect to IS, and anything he can do now to show how seriously he is taking the threat will help him later when things go badly. And again, there is simply no better way to signal the seriousness of the threat than through solicitation of congressional support. * Winning congressional authorization – which again, should not be too hard – will be a political win for the President, and a counterpoint to the many recent suggestions that he is incapable of leadership on important issues. * Finally, I should emphasize that the case above is a prudential one. It is about why seeking congressional authorization is politically prudent and the right thing to do even if not legally required. For what it is worth, the President is on firm legal ground in deploying force unilaterally against IS, without congressional authorization, for the self-defense of the nation. There has been no published legal opinion on the use of force against IS, but a good summary of the authorities that the administration is relying on can be found in this once-much-criticized opinion by John Yoo, written on September 25, 2001. That opinion garnered many precedents to conclude that “the Constitution vests the President with the power to strike terrorist groups or organizations that cannot be demonstrably linked to the September 11 incidents, but that, nonetheless, pose a similar threat to the security of the United States and the lives of its people, whether at home or overseas.” This is precisely the logic of the current and planned use of force against IS. The President can rely on the logic and precedents in Yoo’s opinion for quite a while. But domestic legal authority is not now what matters. What matters is domestic legitimacy, and for that the President needs, and should want, Congress’s support. UPDATE: Several readers write to note that another reason to seek congressional authorization now is to avoid the implications of the War Powers Resolution later. The WPR requires the administration to get approval from Congress 60 (or 90) days after "hostilities" in Iraq begin – i.e. October or November. The administration might argue that it is not engaged in “hostilities” within the meaning of the WPR, as it did in connection with the Libya bombings. But that claim was unpersuasive (my arguments why are here and here, but many others reached the same conclusion). Moreover, most of the criteria in the administration’s fullest articulation of why the WPR did not apply in Libya might cut the other way in Iraq and Syria – namely, the mission is not limited, the exposure of our armed forces might not be limited, the risk of escalation is probably not limited, and the military means deployed might not be limited. So the administration’s already-flimsy rationale for circumventing the WPR in Libya will be even harder to assert in Iraq/Syria.
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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