Is a U.S. Airstrike in Iraq Legal?

For a White House that claims to hold the rule of law above all else, it’s an important question. But Obama’s inconsistent foreign policy makes it a tough one to answer.

AT SEA - MARCH 21: Two U.S. Marines F/A-18 Hornets launch from the flight deck of the USS Constellation as part of Operation Iraqi Freedom March 21, 2003 in the Persian Gulf. War planes from the Constellation began the 'Shock and Awe' phase with heavy bombing from the air as U.S. and coalition forces use military force against Saddam Hussein to disarm him of weapons of mass destruction. 
National Journal
James Oliphant
June 17, 2014, 10:50 a.m.

As the White House grapples with mil­it­ary op­tions for in­ter­ven­ing in Ir­aq to pro­tect Bagh­dad from Sunni ter­ror­ists, it’s also ex­amin­ing how an air­strike can be jus­ti­fied un­der U.S. law.

It’s not a ques­tion without sig­ni­fic­ance, es­pe­cially for an ad­min­is­tra­tion that likes to say it holds the rule of law above all else (even as it ad­opts elast­ic in­ter­pret­a­tions to suit its ends).

In­deed, des­pite the U.S. mil­it­ary op­er­at­ing freely in Ir­aq for eight years dur­ing its oc­cu­pa­tion, a po­ten­tial strike against forces of the Is­lam­ic State of Ir­aq and Syr­ia and its al­lies presents a tough­er call than it ap­pears.

For one thing, the ad­min­is­tra­tion has in no un­cer­tain terms re­peatedly de­clared the con­flict in Ir­aq to be over — and in 2011, the United States ef­fect­ively pulled out of the coun­try after an agree­ment to leave a more ro­bust U.S. pres­ence couldn’t be reached with the Ir­aqi gov­ern­ment. That means the White House may no longer be able to seek leg­al cov­er by in­vok­ing the 2002 law passed by Con­gress that au­thor­ized the Ir­aq in­va­sion.

“It’s a bad ar­gu­ment,” said Bobby Ches­ney, an ex­pert on na­tion­al se­cur­ity law at the Uni­versity of Texas. “Ob­vi­ously, the con­text was for ac­tion against the gov­ern­ment of Ir­aq.”

Ches­ney con­ceded that the law was used for years af­ter­ward to jus­ti­fy con­tin­ued U.S. op­er­a­tions in the coun­try after Sad­dam Hus­sein’s re­gime fell, but, he said, “We’ve been out for years. To go in there and at­tack IS­IS — it’s really a fresh fight.”

Moreover, the ad­min­is­tra­tion has come out in fa­vor of re­peal­ing the Ir­aq Au­thor­iz­a­tion of Mil­it­ary Force — and Obama re­it­er­ated last week that he hasn’t changed his mind. That makes as­sert­ing it now, at best, in­con­veni­ent and at worst, highly hy­po­crit­ic­al.

The White House could in­stead in­voke the broad­er 2001 AUMF that au­thor­ized U.S. ac­tion against al-Qaida in the wake of the 9/11 at­tacks. The main prob­lem with that? Al-Qaida lead­er Ay­man al-Za­wahiri has de­nounced IS­IS for its con­duct in Syr­ia, where it has clashed with an al-Qaida backed group.

In ad­di­tion, Ches­ney noted, the 9/11 AUMF was in­ten­ded to war­rant pree­mpt­ive ac­tion against threats to the United States — and there has been little evid­ence that IS­IS has Amer­ica on its mind. The best thing for the ad­min­is­tra­tion’s leg­al po­s­i­tion, he joked, is if al-Za­wahiri is­sues a press re­lease prais­ing IS­IS and hint­ing at re­con­cili­ation.

Part of the prob­lem is that the Obama White House has con­tinu­ally res­isted sug­ges­tions to have Con­gress re­write the 9/11 AUMF to em­brace a lar­ger swath of ter­ror­ist groups, in­clud­ing ones like IS­IS, be­cause of con­cerns over en­dors­ing a per­petu­al, open-ended war on ter­ror­ism.

The ques­tion of leg­al au­thor­ity for mil­it­ary ac­tion is an is­sue that has dogged this ad­min­is­tra­tion time and again. And Obama has done him­self no fa­vors with seem­ingly in­con­sist­ent ap­proaches to­ward the civil wars in Libya and Syr­ia that al­low crit­ics to charge that his for­eign policy lacks co­her­ence.

In Libya, the White House reasoned that the pres­id­ent had all the con­sti­tu­tion­al au­thor­ity he needed to mar­shal U.S. mil­it­ary as­sets to help bring down the Qad­dafi re­gime. But last year, when it came to re­spond­ing to the use of chem­ic­al weapons in Syr­ia, Obama ul­ti­mately punted and sought con­gres­sion­al ap­prov­al from Con­gress for a strike that nev­er came.

While it’s al­most cer­tain the White House won’t let leg­al obstacles stand in the way of any stra­tegic de­cision to at­tack the Sunni in­sur­gents bear­ing down on Bagh­dad, this is an ad­min­is­tra­tion that has reas­on to be sens­it­ive to cries of ex­ec­ut­ive over­reach. It was just weeks ago, after all, that Obama was ac­cused of by­passing fed­er­al law by fail­ing to no­ti­fy Con­gress in ad­vance of the pris­on­er ex­change that re­trieved Army Sgt. Bowe Ber­g­dahl from the Taliban in Afgh­anistan.

Still, Obama may end up do­ing what Re­pub­lic­ans like least, fall­ing back on ex­ec­ut­ive au­thor­ity in­her­ent in the Con­sti­tu­tion to jus­ti­fy uni­lat­er­al mil­it­ary ac­tion, as he did in Libya in 2011. In that case, he had the back­ing of a United Na­tions res­ol­u­tion and sup­port from NATO. Even so, mem­bers of Con­gress howled after the ad­min­is­tra­tion re­fused to seek au­thor­iz­a­tion in line with the 1973 War Powers Act.

White House law­yers as­ser­ted then that the lim­ited role played by U.S. forces in Libya meant the act’s re­quire­ments wer­en’t triggered. “U.S. op­er­a­tions do not in­volve sus­tained fight­ing or act­ive ex­changes of fire with hos­tile forces, nor do they in­volve U.S. ground troops,” it reasoned in a memo to Con­gress. It’s en­tirely pos­sible the same ra­tionale will be ap­plied to an Ir­aqi air­strike.

So far, the White House is check­ing the boxes. Monday even­ing, as called for by the War Powers Act, it no­ti­fied Con­gress of the de­ploy­ment of al­most 300 troops to help pro­tect U.S. per­son­nel in Ir­aq. But it seems un­likely Obama will seek any sort of form­al ap­prov­al from law­makers be­fore en­ga­ging IS­IS — even though, at present, the ad­min­is­tra­tion ap­pears to be pur­su­ing dip­lo­mat­ic solu­tions to the crisis.

“When he spoke on the South Lawn last week, the pres­id­ent made clear we will con­sult closely with Con­gress on Ir­aq as we make de­term­in­a­tions about ap­pro­pri­ate ac­tion,” said Caitlin Hay­den, a spokes­wo­man for the Na­tion­al Se­cur­ity Coun­cil. “He has not made a de­cision to un­der­take mil­it­ary ac­tion at this stage, so I’m not go­ing to get ahead of the pro­cess and dis­cuss what leg­al au­thor­it­ies might go along with any hy­po­thet­ic­al mil­it­ary ac­tion.”

The Syr­ia ex­per­i­ence may have con­vinced the ad­min­is­tra­tion to fall back on the same leg­al ra­tionale used in Libya — that this would be only a slight flex­ing of U.S. mil­it­ary muscle. Re­pub­lic­ans who right now are call­ing for an ag­gress­ive re­sponse likely will get on board.

But bey­ond that, should things es­cal­ate on the ground, the con­ver­sa­tion be­gins to the get trick­i­er. And the echoes of the Ir­aq War de­bate in Wash­ing­ton 12 years ago will stir anew.

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