Is it Legal? No.

by Deborah Pearlstein

Let’s start with the Administration’s newly minted theory (h/t Marty Lederman for posting the operative statement) that the statutory 2001 AUMF authorizes the President’s announced campaign to use force against ISIL in Iraq and Syria. The AUMF does not plausibly extend to ISIL.

In addition to the reasons my friends Jens Ohlin, Jen Daskal and others have already highlighted, let me add this: ISIL is not an “associated force” of Al Qaeda by the Administration’s own definition. In May 2013, former State Department Legal Adviser Harold Koh gave a speech at Oxford setting forth the Administration’s definition of what counts as an “associated force” under the AUMF. (Let’s ignore all questions for now about whether this is an accurate importation of the concept of co-belligerency from international law and just accept the Administration’s version as a given.) Koh said: “The U.S. Government has made clear that an ‘associated force’ must be (1) an organized, armed group that (2) has actually entered the fight alongside al Qaeda against the United States, thereby becoming (3) a co-belligerent with al Qaeda in its hostilities against America.” Is ISIL organized? Surely. Has it “entered the fight alongside al Qaeda”? Absolutely not. Al Qaeda and ISIL are fighting each other. (See just about everywhere, but e.g., here.) Has it thus become a “co-belligerent with al Qaeda in [al Qaeda’s] hostilities against America”? Please.

So what about the constitutional theory, i.e. that the President has inherent authority under Article II of the Constitution as Commander in Chief to undertake the extended campaign he now contemplates? Here, too, this latest initiative takes the Administration several steps beyond even its own previously announced, already expansive understanding of the President’s constitutional authority – set forth in an Office of Legal Counsel memorandum in 2011 justifying the use of force in Libya without congressional authorization. Under the Obama OLC view, the President’s constitutional power permits him to use force without congressional authorization (1) if its use serves “important national interests,” AND (2) if the use of force doesn’t rise to the level of a “war” (based on the anticipated nature, scope, and duration of the planned operations), such that the power to launch it falls within Congress’ express constitutional power to “declare war.” Let’s set aside the troubling breadth of the first part of that standard (does the need to identify any broad “important national interest” really constrain presidential power?), and the inherent unpredictability of the second part (when was the last time a contemplated use of military force by the United States turned out just how we had “anticipated”). Let’s also assume that the broad standard “important national interests” is met here. At a minimum, the United States has an interest in supporting regional stability and protecting America’s various allies and interests ISIL has threatened.

But the ability to call the current engagement not-war pushes all envelopes. Here, unlike in Libya, the President himself has indicated defeating ISIL will be no short-term matter. Unlike in Libya, there is no pretense that the United States will be providing principally logistical support for an air campaign, with our allies doing the actual bombing. Here, according to the President, we will be leading the way, and we will be, in the administration’s own contemplation, engaged for some time. As for the prospect of not having “boots on the ground,” assurances on that matter already seem belied by the presence already of more than a thousand publicly known U.S. military and other personnel in the country – personnel whose safety has already been invoked to justify the use of escalated force. Call them “advisors” if one must, but they have feet, some of them undoubtedly clad in boots, all of them already on the ground. And more to come. The United States is engaged in an “armed conflict” in international law terms (already a non-international armed conflict in Iraq, and if we undertake bombing in Syria without that country’s consent, an international armed conflict as well). We will be using armed force. Many people will die. In other words, in any constitutional sense, this is war.

All this is before we’ve reached more difficult questions of international law, or questions of the Administration’s intention to comply, sooner or later, with the existing domestic War Powers Act, requiring Congress to authorize, sooner or later, any such prolonged entry of U.S. forces into hostilities. I’ll hope to address those separately. In the meantime, for all the uncertainty and challenge of the threat ISIL poses, the difficulty of the policy decisions that must have been involved here, the politics of the impending elections, the complexity of some legal questions in this field – this legal question is one of the easy ones. As a matter of law, the President needs additional authority from Congress. Asserting he has it already is wrong.

http://opiniojuris.org/2014/09/11/legal/

11 Responses

  1. So? some of his international legal advisers do not serve him well. Harold was wrong about not being at “war” in Libya — so?
    Under the United States Constitution, the President has the duty faithfully to execute the Laws, which include international law. Such a duty provides a competence to use military force in self-defense and collective self-defense that is/are permissible under treaty-based and customary international law. We are currently directly participating in an international armed conflict in Iraq with the consent of the Iraqi government and under the mantel of collective self-defense (whether Obama’s international legal advisers know it).
    This authority was recognized by Congress as being constitutionally based in the preamble to the AUMF. In any event, the President can engage in collective self-defense — http://ssrn.com/abstract=2061835
    And, as addressed above, the War Powers Resolution does not obviate this authority.

  2. Regarding the claim that because ISIS fights al Qaeda it therefore cannot be considered as having entered the fight alongside al Qaeda against the U.S., how would you answer the following hypothetical? If al Qaeda and ISIS had one bullet, at whom would they aim it?

    I think the claim that they are not aligned against the U.S. because they fight one another invests too much in the word ‘aligned’ and ignores the phrase ‘against the U.S.’ Can not two groups disagree on everything else but one issue and still be considered aligned on that issue? I think that is the correct phrasing of this question, instead of, can not two groups disagree on everything else but one issue and still be considered aligned?

  3. Just wanted to clarify the hypothetical:

    If al Qaeda and ISIS each have only one bullet, who would they shoot?

  4. Sec. Kerry today: the operation involves “many different things that one doesn’t think of normally in [the] context of war…. If somebody wants to think about it as a war with ISIL, they can do so.”
    Remarkable!
    Of course the U.S. is involved in a war!
    The U.S. is involved in an international armed conflict and fighting against ISIL with the consent of the Iraqi government as part of a collective self-determination process, and it is an international armed conflict because U.S. military personnel are engaged in armed conflict (e.g., killing and destroying military targets with missiles and bombs). U.S. military personnel MUST be engaged in an international armed conflict in order to have “combatant” status and “combatant immunity” for lawful acts of war under the laws of war and in order to have pow status if captured. They do and would.
    Let’s drop this nonsense about the U.S. not being involved in a “war”!

  5. ooooppps, as part of a collective self-defense process (self-determination and self-determination assistance, if not also collective self-defense, would be more relevant with respect to the Free Syrian Army).

  6. p.s. I note that there is a significant difference between declaring war and launching it in terms of the allocation of constitutional power. By the way, Bush was at “war” with “terror” but Obama declared that we are at “war” with al Qaeda (even though a declaration of war is an exclusive congressional power in view of consistent U.S. cases regarding a “declaration” as such).
    p.s.p.s. I wonder whether there is any person who is trained in international law who will go on record and state that the U.S. is not engaged in a “war” or “armed conflict” now in Iraq.

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  3. […] School of Law’s Deborah Pearlstein, also writing in Opinio Juris, agreed that the AUMF “does not plausibly extend to ISIL.” Harvard University’s […]

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