Ilya Somin of the Volokh Conspiracy has suggested that if NATO invokes Article V’s collective self-defense language against ISIS as a result of the terrible Paris attacks over the weekend, President Obama’s ongoing use of military force against ISIS could be “legalized” as a matter of U.S. constitutional law. Here is Ilya:
Article 5 provides a much stronger justification for the war against ISIS than the previous extremely dubious rationalizations presented by the Obama administration. But it cannot retroactively legalize the President’s previous illegal actions, or the similarly unconstitutional war against Libya in 2011.
I agree with Ilya that the Obama Administration’s current domestic legal justification for the war against the Islamic State is sketchy at best. But I am not sure I agree with him that Article V should be read as a “pre-authorization” for the President to use military force without going back to Congress for a specific authorization.
Here is the full text of Article V:
The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.
Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security .
I agree that the horrible Paris attacks would constitute an “armed attack” on a member of NATO “in Europe or North America.” But I don’t think Article V requires the other NATO members to provide military assistance. Rather, “if such an armed attack occurs,” a NATO member “will assist the Party so attacked [France]…by taking forthwith…such action as it deems necessary, including the use of armed force.” (emphasis added).
I read this language as requiring the U.S (for instance) to assist the attacked party (France), and that this assistance could “include the use of armed force.” But I don’t think it has to.
Moreover, Article IX of the North Atlantic Treaty states that “[t]his Treaty shall be ratified and its provisions carried out by the Parties in accordance with their respective constitutional processes.” (emphasis added). I read this as requiring Parties to carry out provisions like Article V “in accordance with their respective constitutional processes.” If you are someone who believes that Congress must authorize the use of force by the President in most cases, than this language would mean that the President has to go back to Congress. This might actually happen. Republican presidential candidate Jeb Bush actually called for a “declaration of war on ISiS” today.
Of course, if you believe (as I do) that the President has independent constitutional authority to use military force without Congress in most circumstances, than all Article XI does not limit the President much.
In any event, I don’t think it makes sense to read the NATO Treaty as saying much at all about domestic allocation of war powers. The main legal purpose of Article V was (is) to allow NATO countries to act consistently with the U.N. Charter’s limitations on the use of force (such as they are). Invoking Article V should allow the U.S. to use armed force to assist France consistently with the UN Charter. That might have mattered if the U.S. and France weren’t already using military force against ISIS in Syria in ways somewhat inconsistently with the UN Charter. But they have been bombing for months already, so I am not sure it is even worth invoking Article V at this point.