Obama, Iraq, and the Coming War-Powers Fight With Congress

WASHINGTON, DC - NOVEMBER 13: U.S. President Barack Obama delivers speaks at the 2013 Tribal Nations Conference held at the Department of Interior Building on November 13, 2013 in Washington, DC. Obama meet with leaders of 566 Native American tribes earlier in the day at teh White House.
National Journal
Aug. 25, 2014, 6:29 a.m.

As the United States mil­it­ary’s in­ter­ven­tion in Ir­aq in­tens­i­fies, so does the de­bate between le­gis­lat­ive- and ex­ec­ut­ive-branch of­fi­cials about Pres­id­ent Obama’s mus­cu­lar use of war powers.

In the past 10 weeks, Obama has au­thor­ized the first U.S. com­bat op­er­a­tions in Ir­aq since the war ended in 2011, and sent in roughly 1,000 U.S. troops.

The U.S. op­er­a­tion in Ir­aq is likely to ex­tend bey­ond the 60-day lim­it un­der the War Powers Res­ol­u­tion that trig­gers con­gres­sion­al ap­prov­al, mean­ing Obama may need a dif­fer­ent au­thor­ity to con­tin­ue the fight. The pres­id­ent has used the sweep­ing 2001 Au­thor­iz­a­tion of the Use of Mil­it­ary Force, or AUMF, to fight ter­ror­ist groups across the globe, but many ar­gue it was primar­ily in­ten­ded to au­thor­ize com­bat op­er­a­tions in Afgh­anistan, which of­fi­cially end in Decem­ber. The latest Ir­aq in­ter­ven­tion rep­res­ents what may be Con­gress’s last, best op­por­tun­ity to rein in the dra­mat­ic ex­pan­sion of the com­mand­er in chief’s au­thor­ity to wage war that has oc­curred in the last 13 years.

The irony is that Obama just one year ago de­clared he would cut back the very au­thor­ity his aides are now re­con­sid­er­ing. He pledged to chart a new path for­ward when he laid out his vis­ion for a new com­pre­hens­ive na­tion­al se­cur­ity strategy to guide U.S. for­eign policy.

“The AUMF is now nearly 12 years old,” Obama said at Na­tion­al De­fense Uni­versity in May 2013. “Un­less we dis­cip­line our think­ing, our defin­i­tions, our ac­tions, we may be drawn in­to more wars we don’t need to fight, or con­tin­ue to grant pres­id­ents un­bound powers more suited for tra­di­tion­al armed con­flicts between na­tion states. So I look for­ward to en­ga­ging Con­gress and the Amer­ic­an people in ef­forts to re­fine, and ul­ti­mately re­peal, the AUMF’s man­date.”

Today, gone is the talk of curb­ing un­bound pres­id­en­tial powers to wage war. As the clock ticks, and Obama ex­tends air at­tacks on the Is­lam­ic State in Ir­aq and Syr­ia, ad­min­is­tra­tion of­fi­cials ar­gue that the com­mand­er in chief is op­er­at­ing with­in his au­thor­ity.

“We com­ply with the War Powers Act and in­formed Con­gress on how many people we have,” De­fense Sec­ret­ary Chuck Hagel said Thursday. “This is not about mis­sion creep.”

But Obama’s team quietly is con­sid­er­ing wheth­er they can use the ori­gin­al AUMF to shore up the pres­id­ent’s au­thor­ity to con­duct the grow­ing U.S. mil­it­ary op­er­a­tion in Ir­aq.

“The pres­id­ent has the au­thor­ity to take these ac­tions,” Na­tion­al Se­cur­ity Coun­cil spokes­wo­man Caitlin Hay­den told De­fense One on Aug. 15. Obama has kept Con­gress in­formed, she said. If the Ir­aq op­er­a­tion con­tin­ues past Oct. 7, however, Hay­den de­murred, “It would be spec­u­lat­ive to dis­cuss how the 60-day pro­vi­sion in the War Powers Res­ol­u­tion would ap­ply to these two spe­cif­ic and lim­ited U.S. mil­it­ary op­er­a­tions.”

But, Hay­den said, “We are re­view­ing the ap­plic­ab­il­ity of the 2001 AUMF to this situ­ation, which would be in ad­di­tion to the pres­id­ent’s con­sti­tu­tion­al au­thor­ity as noted in the War Powers Res­ol­u­tion re­port.”

It’s a not­able shift from the ad­min­is­tra­tion’s po­s­i­tion that Obama would work with Con­gress to ul­ti­mately sun­set the AUMF al­to­geth­er. The ad­min­is­tra­tion con­tin­ues to sup­port the re­peal of the 2002 AUMF that au­thor­ized the Ir­aq War of 2003-2011.

The pres­id­ent has few good op­tions to face the un­pre­ced­en­ted, ur­gent threat the Is­lam­ic State group poses. In po­ten­tially at­tempt­ing to lever­age the Bush’s ad­min­is­tra­tion’s leg­al frame­work, Obama could be com­mit­ting U.S. forces to an­oth­er open-ended in­ter­ven­tion in Ir­aq, con­tinu­ing the pre­ced­ent set by his pre­de­cessor and lock­ing in his suc­cessor.

Haunted by Votes to Start War and Prom­ises to End It

As Is­lam­ic State fight­ers in the past six months stead­ily over­ran cit­ies fa­mil­i­ar from the Ir­aq War””Fal­lu­jah, Mo­sul””White House and con­gres­sion­al of­fi­cials grew in­creas­ingly wary of the U.S. be­ing pulled in­to an­oth­er lim­it­less war like the one many of them voted for more than a dec­ade ago.

The 2001 AUMF that Con­gress passed in the fear­ful days fol­low­ing the Sept. 11 at­tacks has been called the most far-reach­ing, open-ended ex­pan­sion of the ex­ec­ut­ive’s powers in U.S. his­tory. Though the AUMF’s mere 60 words made no men­tion of al-Qaida or Afgh­anistan, they provided Pres­id­ent George W. Bush the stat­utory au­thor­ity for the war in Afgh­anistan and on “ter­ror,” and the leg­al un­der­pin­nings for al­most any use of U.S. mil­it­ary force to fight ter­ror­ism any­where across the globe for the past 13 years.

John Bellinger, who served as leg­al ad­viser to the Na­tion­al Se­cur­ity Coun­cil and the State De­part­ment un­der Bush, was in the White House on 9/11 and later rep­res­en­ted the ad­min­is­tra­tion be­fore the 9/11 Com­mis­sion and helped cre­ate the dir­ect­or of na­tion­al in­tel­li­gence. He de­scribed the AUMF as “ex­tremely ex­pans­ive.”

“An enorm­ous amount of coun­terter­ror­ism ac­tions””drones, de­ten­tion, Guantanamo, the war in Afgh­anistan, the PSP [Pres­id­ent’s Sur­veil­lance Pro­gram]””all hung on those 60 words,” Bellinger told De­fense One on Thursday.

Neither the 2001 nor the 2002 AUMF in­cludes any ex­pir­a­tion date, mean­ing both are still in ef­fect, though both state they can’t su­per­sede any re­quire­ment of the War Powers Res­ol­u­tion.

In the af­ter­math of Vi­et­nam in 1973, Con­gress passed the War Powers Res­ol­u­tion over Pres­id­ent Nix­on’s veto. The res­ol­u­tion stip­u­lates that the pres­id­ent can only send troops in­to hos­til­it­ies or im­min­ent hos­til­it­ies for 60 days without Con­gress de­clar­ing war or provid­ing a spe­cif­ic au­thor­ity to do so. That time can be ex­ten­ded for 30 days to al­low for with­draw­al, but only for a max­im­um of 90 days.

Like sev­er­al pres­id­ents be­fore him, Obama’s com­pli­ance with the War Powers Res­ol­u­tion has been in­con­sist­ent. In 2011, White House of­fi­cials ar­gued the U.S. mil­it­ary’s in­ter­ven­tion in Libya did not amount to hos­til­it­ies and thus didn’t re­quire au­thor­iz­a­tion from Con­gress un­der the War Powers Act. When con­sid­er­ing air strikes against Syr­ia last year, Obama said he could act without con­gres­sion­al ap­prov­al be­cause the situ­ation rep­res­en­ted a po­ten­tial threat to the U.S., but he also sent Con­gress a War Powers Res­ol­u­tion re­port and said law­makers should de­cide. They nev­er did.

“Obama has been all over the map with re­spect to his uses of force, and when he has or hasn’t got­ten con­gres­sion­al au­thor­iz­a­tion,” Bellinger said.

When Obama did even­tu­ally au­thor­ize air­strikes in Ir­aq on Aug. 7, he ac­know­ledged the roots of his reti­cence were tied to his op­pos­i­tion to the Ir­aq War. “I ran for this of­fice in part to end our war in Ir­aq and wel­come our troops home, and that’s what we’ve done,” he said. “As com­mand­er in chief, I will not al­low the United States to be dragged in­to fight­ing an­oth­er war in Ir­aq.”

“United in Our Re­solve”

Ten weeks after the Is­lam­ic State’s push in­to north­ern Ir­aq, Obama has now sent Con­gress four War Powers Res­ol­u­tion let­ters re­gard­ing Ir­aq””po­ten­tially the most con­cen­trated peri­od of pres­id­en­tial war-powers re­port­ing in U.S. his­tory, ac­cord­ing to Bellinger. On Wed­nes­day, Pentagon of­fi­cials ac­know­ledged they were con­sid­er­ing send­ing up to 300 ad­di­tion­al U.S. troops to shore up se­cur­ity in Bagh­dad, which could push the U.S. pres­ence bey­ond 1,000.

White House spokes­man Josh Earn­est said that seni­or mem­bers of Obama’s na­tion­al se­cur­ity team reached con­gres­sion­al lead­er­ship and mem­bers of key com­mit­tees in ad­vance of Obama’s Aug. 7 an­nounce­ment that he had au­thor­ized air­strikes. Earn­est noted that mem­bers of both parties backed the pres­id­ent’s de­cision.

But after ini­tially ex­press­ing wide­spread sup­port for the air­strikes””of which a ma­jor­ity of Amer­ic­ans ap­prove””as the U.S. in­volve­ment in Ir­aq has deepened, a grow­ing group of law­makers from both parties have called for Obama to come be­fore Con­gress for au­thor­iz­a­tion.

“We may not have de­clared it a war, but when we’re drop­ping bombs and they’re ap­par­ently be­head­ing our cit­izens it cer­tainly looks like war,” said Rep. Adam Schiff, D-Cal­if., rank­ing mem­ber of the House In­tel­li­gence Com­mit­tee, on Tues­day. But on Thursday, he cau­tioned, “We shouldn’t al­low this hor­rible act to pro­voke us in­to do­ing things that are coun­ter­pro­duct­ive.”¦ There’s noth­ing IS­IS would like more than hav­ing us re­in­tro­duce ground troops in­to Ir­aq.” Schiff said law­makers need to push for au­thor­iz­a­tion for the use of mil­it­ary force in Ir­aq and can’t “ab­dic­ate our re­spons­ib­il­ity here.”

“We are find­ing out the au­thor­iz­a­tions in place are pretty tenu­ous,” Sen. Ron John­son, R-Wis., said last week, re­fer­ring to a meet­ing between Obama and mem­bers of the Sen­ate For­eign Re­la­tions and Armed Ser­vices Com­mit­tees to dis­cuss the situ­ation in Ir­aq. “He is go­ing to need au­thor­ity to deal with this new asym­met­ric threat.”

Sen. Tim Kaine, D-Va., told The New York Times that at the meet­ing, Obama re­spon­ded to calls for con­gres­sion­al au­thor­iz­a­tion. “Guys, you can’t have it both ways here,” Obama said, ac­cord­ing to Kaine. ” ‘You can’t be duck­ing and dodging and hid­ing un­der the table when it comes time to vote, and then com­plain about the pres­id­ent not com­ing to you’ for au­thor­iz­a­tion.”

Mem­bers of Con­gress feel last week’s air­strike cam­paign near Mo­sul “changes the de­bate,” said one Sen­ate aide, call­ing the ad­min­is­tra­tion’s ar­gu­ment that pro­tect­ing the dam pro­tec­ted U.S. cit­izens “a stretch.”

“You’re gonna look sen­at­ors in the eye and say, ‘We took air strikes at Mo­sul Dam in or­der to pro­tect per­son­nel in Bagh­dad?’ ” the aide said. “If it’s about IS­IS dir­ectly threat­en­ing U.S. per­son­nel and fa­cil­it­ies, the pres­id­ent’s Art­icle 2 au­thor­it­ies stand. Once you’re un­der­tak­ing kin­et­ic ac­tion not ex­pli­citly tied to U.S. per­son­nel and fa­cil­it­ies, you need to un­der­stand the leg­al basis for do­ing those strikes.”

“Cer­tainly ex­ec­ut­ive-branch law­yers be­lieve the pres­id­ent also has con­sti­tu­tion­al au­thor­ity to use force to pro­tect U.S. na­tion­al se­cur­ity more gen­er­ally, which would go bey­ond just an im­me­di­ate threat,” Bellinger said, “but the farther the pres­id­ent moves from us­ing force to pro­tect the coun­try, to a threat against Amer­ic­an in­terests, and more to pro­tect­ing oth­er people or oth­er coun­tries, the more push­back that he’s gonna get from Con­gress.”

The ad­min­is­tra­tion’s very con­sid­er­a­tion of the AUMF’s ap­plic­a­tion for the latest op­er­a­tion in Ir­aq in­dic­ates that it be­lieves it is already stretch­ing the lim­its of the pres­id­ent’s powers, which are cer­tain to be tested fur­ther if the mis­sion is ex­pan­ded to the long-term strategy Pentagon of­fi­cials have deemed ne­ces­sary to de­feat­ing IS­IS.

At a May Sen­ate For­eign Re­la­tions Com­mit­tee hear­ing on the Ir­aq and Afgh­anistan AUMFs, Steph­en Pre­ston, the top law­yer for the De­fense De­part­ment, de­fen­ded the con­tin­ued use of the 2001 AUMF””but made no men­tion of IS­IS or Ir­aq.

“The ex­ec­ut­ive branch in­ter­prets the AUMF to au­thor­ize the use of force against al-Qaida, the Taliban, and as­so­ci­ated forces,” Pre­ston said. The concept of an “as­so­ci­ated force”“”a term also ex­cluded from the AUMF”””is based on the well-es­tab­lished concept of co-bel­li­ger­ency in the laws of war.” But he also said, cit­ing guid­ance Obama laid out in his Na­tion­al De­fense Uni­versity speech, that in or­der for the U.S. to take “leth­al coun­terter­ror­ism ac­tion bey­ond the Afghan theat­er” a tar­get has to threaten Amer­ic­ans.

Coun­terter­ror­ism czar Mat­thew Olsen said last month that the space across Syr­ia and Ir­aq is now the epi­cen­ter for re­cruit­ing, train­ing, and plan­ning for dir­ect at­tacks on West­ern tar­gets. And on Thursday, Hagel and Chair­man of the Joint Chiefs of Staff Gen. Mar­tin De­mp­sey un­equi­voc­ally stated that IS­IS poses a threat to the U.S. “[IS­IS] is as soph­ist­ic­ated and well-fun­ded as any group that we have seen,” Hagel said. “They’re bey­ond just a ter­ror­ist group.”

But Bellinger be­lieves that ad­min­is­tra­tion law­yers can­not “in good con­science” con­clude that the Is­lam­ic State is an as­so­ci­ated force with al-Qaida. “Four­teen years later the U.S. is now fa­cing threats from people who … really are not as­so­ci­ated with those who car­ried out the 9/11 at­tacks,” the one re­stric­tion of the AUMF, he said. “The pres­id­ent needs to have the au­thor­ity to pro­tect the coun­try against those groups.”

An aide to House Armed Ser­vices Com­mit­tee Chair­man Buck McK­eon, R-Cal­if., told De­fense One that the Na­tion­al Se­cur­ity Coun­cil it­self is deeply di­vided on con­tinu­ing to ap­ply the AUMF. “Even we agree it is be­ing in­creas­ingly strained, and as you wind down op­er­a­tions in Afgh­anistan you have to look at how you are go­ing to design the AUMF go­ing for­ward. But we don’t ne­ces­sar­ily agree with some in the White House seem to want to do, which is to wind it down,” the aide said. “But there is a clear need to cer­tainly re­fine it “¦ if for no oth­er reas­on than they are strug­gling to find a way to bring IS­IS un­der the um­brella, un­der the AUMF, to jus­ti­fy broad­er ac­tions.”

If in­ter­agency leg­al teams de­term­ine that the 2001 AUMF ap­plies to the fight against the Is­lam­ic State, it would simply be a mat­ter of send­ing a memor­andum to Con­gress, the Sen­ate aide said. Op­er­a­tions could then con­tin­ue in Ir­aq with “blanket leg­al cov­er,” and without a vote. If the ad­min­is­tra­tion de­cides to form­ally ex­pand the mis­sion in Ir­aq in­to a broad­er cam­paign against the Is­lam­ic State, Obama would al­most cer­tainly need to seek new au­thor­iz­a­tion. If the ad­min­is­tra­tion doesn’t get sep­ar­ate au­thor­iz­a­tion, the 60-day lim­it should hit right at Con­gress’s most vul­ner­able, and busiest, time.

Once Con­gress re­turns from its long sum­mer re­cess, it has only 12 days of work be­fore de­part­ing for Oc­to­ber’s run-up to the midterm elec­tions. On Oct. 7, 60 days after Obama’s an­nounce­ment of air strikes, both cham­bers won’t even be in ses­sion.

Con­gress cur­rently has at least five meas­ures to con­sider that could the curb war-powers au­thor­ity: two to re­peal the 2002 AUMF, in­tro­duced in­de­pend­ently by Sens. Rand Paul, R-Ky., and Sen­ate For­eign Re­la­tions Com­mit­tee Chair­man Robert Men­en­dez, D-N.J.; one to re­peal the 2001 AUMF, from Rep. Bar­bara Lee, D-Cal­if., the only mem­ber of Con­gress to vote against it; and two passed by the House just be­fore the long Au­gust re­cess, in­ten­ded to block Obama from de­ploy­ing or main­tain­ing forces “in a sus­tained com­bat role” in Ir­aq without spe­cif­ic stat­utory au­thor­iz­a­tion.

Sev­er­al of these have been re­ferred to Men­en­dez’s For­eign Re­la­tions Com­mit­tee, which has jur­is­dic­tion to ex­am­ine in­ter­ven­tions abroad. The po­ten­tial for clas­si­fied brief­ings and a pub­lic hear­ing on Ir­aq upon Con­gress’s re­turn in Septem­ber is be­ing dis­cussed between Con­gress and the White House, the aide said, and though there isn’t much time to squeeze either in be­fore the midterms, those would be the first steps to­ward mak­ing de­term­in­a­tions about Obama’s leg­al au­thor­it­ies in Ir­aq.

Bellinger said, “Part of it, I think, is the polit­ics of the situ­ation right now””[Obama] would not want to put it to Con­gress, and par­tic­u­larly con­gres­sion­al Demo­crats, to ask them to vote for the use of force in Ir­aq in an elec­tion year. He already saw what happened with re­spect to Syr­ia, and [IS­IS] is prob­ably a great­er threat to us here, in Ir­aq.”

But the Sen­ate aide said mem­bers of Con­gress, wheth­er call­ing for over­sight or dodging tak­ing a stance, are sens­it­ive to the po­tency of the threat as well. “There are many that would prefer not to take that vote and would be fine with them us­ing the 2001 AUMF. But for cer­tain mem­bers of Con­gress and cer­tain mem­bers of this ad­min­is­tra­tion at this time, that’s a really dif­fi­cult call to make.”

“It gets bey­ond the Middle East and North Africa. It’s about provid­ing them flex­ib­il­ity. For na­tion­al se­cur­ity, to re­peal an AUMF without a new one, giv­en that ter­ror­ism is still a ser­i­ous is­sue, wouldn’t be a prudent course.”

In re­cent days, Obama of­fi­cials’ tone has taken on a new heat, lay­ing the rhet­or­ic­al ground­work for an ex­pan­ded mis­sion in Ir­aq. “We’ve made very clear time and again that if you come after Amer­ic­ans, we’re go­ing to come after you wherever you are. And that’s what’s go­ing to guide our plan­ning in the days to come,” Deputy Na­tion­al Se­cur­ity Coun­sel Ad­viser Ben Rhodes said Fri­day, not­ing the Is­lam­ic State’s roots in al-Qaida sev­er­al times. “So we’re act­ively con­sid­er­ing what’s go­ing to be ne­ces­sary to deal with that threat, and we’re not go­ing to be re­stric­ted by bor­ders.”

“Go­ing for­ward, we would ob­vi­ously have a leg­al jus­ti­fic­a­tion for any ac­tion we take,” he con­tin­ued. “And I do want to be clear””we would con­sult with Con­gress. This is, again, a prob­lem that we have to deal with as a na­tion, and so wheth­er it’s our on­go­ing op­er­a­tions in Ir­aq or ad­di­tion­al steps that may need to be taken against [IS­IS], we would carry those out in very close con­sulta­tion.”

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