President Obama could still use ground troops in Iraq and Syria to fight the Islamic State and the next president could extend the war beyond the three-year limit no matter what Congress passes, lawmakers’ research arm said this week in a legal brief that undercuts many of the key restrictions that Capitol Hill is demanding.
The difficulty, according to the Congressional Research Service, is that Mr. Obama’s proposal for a new authorization for the use of military force would leave in place a 2001 war resolution authorizing the fight against al Qaeda. The president already has been using the 2001 resolution to justify six months of airstrikes and other combat operations against Islamic State fighters.
“The plain language of the draft AUMF states that the authorization expires three years after the date of enactment, unless reauthorized. However the draft AUMF does not require the termination of hostilities upon expiration,” Congressional Research Service staffer Michael John Garcia wrote in a legal memo to lawmakers. “Arguably the executive could still point to other sources of authority — including the 2001 AUMF and the president’s independent constitutional authority — as providing a legal basis for continuing hostilities against the Islamic State.”
Mr. Garcia said that also holds true for ground troops, which are allowed under the 2001 resolution, even though Mr. Obama generally would prohibit them in his request to fight the Islamic State.
Some members of Congress have argued that Mr. Obama is in violation of the law by citing the 2001 authorization to go after the Islamic State. The administration, however, has said the terrorist army is a successor of al Qaeda offshoots, so the earlier war resolution covers this incarnation.
By that interpretation, the new resolution arguably would give Mr. Obama more, not fewer, powers to wage war by allowing him to go after what Mr. Garcia labeled “some persons or groups on account of their affiliation with the Islamic State that could not be targeted under the 2001 AUMF.”
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Secretary of State John F. Kerry will be on Capitol Hill Tuesday and Wednesday to defend Mr. Obama’s proposed budget for the State Department, and the push for war powers is likely to dominate the conversation.
Since August, Mr. Obama has had U.S. troops committed to a campaign including airstrikes on targets in Iraq and Syria, and to American troops providing logistics and intelligence advice to Iraqi forces.
The president claims authority under the 2001 authorization of war against al Qaeda and the Taliban, under the 2002 authorization that initiated the war in Iraq and under his inherent powers as commander in chief established in the Constitution.
For months, Mr. Obama said he would welcome congressional action to back him up but refused to send a specific request. Republican leaders insisted that it was his duty to make the request. The president complied this month.
His draft would prohibit “enduring offensive ground combat operations” and would sunset after three years, but it contains no geographic limits on where the U.S. could strike and it allows attacks against people “associated” with the Islamic State.
In a letter accompanying the draft, the president said he wants “to refine, and ultimately repeal, the 2001 AUMF.” But he gave no time frame and said only that he wanted the debate on his proposal to be a model for showing that the two sides could cooperate.
As with much of the rest of the war on terrorism, the legal situation is messy. Adding another authorization doesn’t necessarily clear it up.
“The problem is that when the Obama AUMF expires, the courts (if they believe that Congress must authorize hostilities, which they’ve never found before) will try to interpret its provisions in harmony with the 2001 AUMF,” John Yoo, a law professor at the University of California, Berkeley, who was a key legal adviser to the Bush administration during formation of the war on terrorism, said in an email.
“The courts might conclude that the three year sunset might also apply to any powers that overlap between the two laws. The courts would reasonably ask why Congress passed the Obama AUMF if it thought the 2001 AUMF were already sufficient,” Mr. Yoo said.
Military analysts said it’s not clear that a resolution authorizing force could legally dictate whether Mr. Obama may or may not commit ground troops anyway. Those analysts said it was more a political dance between Mr. Obama and lawmakers in Congress.
“It’s hard to imagine any practical impact that this language would have in terms of what it would prevent the president from doing — this president or the next president, also putting aside the argument the president has made that the AUMF is nice but ultimately he has the ability to operate without it and doesn’t require it in order to wage the campaign against the Islamic State under his Article II authorities as commander in chief,” Vance Serchuk of the Center for a New American Security, told reporters on a conference call last week hosted by the Foreign Policy Initiative.
Lou Fisher, a scholar in residence at the Constitution Project, said Congress is paying the price for not challenging Mr. Obama more on the air-based war in Libya in 2011, without any specific powers granted from Capitol Hill. In that instance, the White House argued that the operations, which included strikes at targets, didn’t amount to war.
Mr. Fisher, a former Congressional Research Service senior specialist on the separation of powers, advised Congress to discard Mr. Obama’s request and set the wars on better legal footing.
“I hope they have enough confidence that they can throw this away and start anew,” Mr. Fisher said. “Some people would say that’s not treating the president with respect. Well, you don’t have to. They don’t treat you with respect.”
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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