Obama's Speech Reminded Americans That the War with ISIS Is Still Illegal

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Obama's Speech Reminded Americans That the War with ISIS Is Still Illegal

No matter the merits of the case for destroying Isis, the fact remains that it’s unconstitutional for the president to go to war without congressional approval

President Barack Obama delivers his State of the Union speech before a joint session of Congress at the U.S. Capitol February 12, 2013 in Washington, DC. (Photo: Alex Wong/Getty)

If you listened closely during Barack Obama’s speech to the nation on Sunday night, you would have heard him reference the fact that the US war against Isis – which is well over a year old at this point – is illegal and unconstitutional.

He didn’t phrase it like that of course, but he did remind Americans that Congress has not authorized any military action against Isis despite the fact that we have been dropping bombs on multiple countries in an effort to stop Isis since August of 2014, and despite the fact that such military action is required by both the law and the US constitution.

Here’s what Obama did say about the subject on Sunday:

Finally, if Congress believes, as I do, that we are at war with Isil, it should go ahead and vote to authorize the continued use of military force against these terrorists.

For over a year, I have ordered our military to take thousands of air strikes against Isil targets. I think it’s time for Congress to vote to demonstrate that the American people are united and committed to this fight.

He framed congressional authorization of the war against Isis as a solidarity or symbolic issue – like the US Congress would be showing the American public unity or something – but it’s much more consequential than his deceptive wording allows. According to Article I, section eight of the US constitution, only Congress has the power to declare war, not the executive branch, and under the War Powers Act passed after the Vietnam war, Congress must authorize war 90 days after any combat missions begin.

For the past year and four months, the administration has been pretending that the 2001 Authorization for Military Force (AUMF), which made it legal to wage war against those who perpetrated the 9/11 attacks, somehow makes it OK to wage a indefinite, worldwide war against Isis. But Isis did not exist in 2001, and has been enemies with al-Qaida (the group that committed 9/11) for years. Still, the 2001 AUMF is being used to fight Isis in Iraq and Syria, despite the fact that al-Qaida was almost exclusively operational in Afghanistan when Congress first authorized military action.

It makes no logical sense to claim that the authorization to engage in military action against al-Qaida in Afghanistan in 2001 applies to Isis in Syria in 2015, yet that is supposed argument to which the White House lawyers are clinging.

The theory that the ongoing military action against Isis is illegal – no matter what you think the merits of fighting the terrorist organization are – isn’t just my opinion: it’s the opinion of legal scholars across the political spectrum. Even the former head of the Office of Legal Counsel under the Bush administration Jack Goldsmith has questioned Obama’s unprecedented claims to executive authority. Yet in the past year, the illegality of the military strikes in Syria and Iraq has been routinely ignored by almost all members of Congress, save a select few.

What the president said in his speech on Sunday is nothing new: he has been half-heartedly calling on Congress to authorize the war since January. But the White House has put forth no language of their own for a bill that would satisfy their requirements, and the administration has made clear they don’t think they really need legislation anyways. Their position is, essentially: legal authority would be nice, but we can just pretend we already have it.

It’s hard to figure out who is more to blame here: the administration, which has foisted an extremely dubious legal theory on the American public; or Congress, which has been so terrified of doing its job and casting a vote for or against this war that they have continually done everything in their power to pretend that they don’t have to.

Sure, writing a resolution to authorize military force against Isis would be fraught: given the war-hungry atmosphere and just how many Republicans (and some Democrats) would want to write it as broadly as possible and leave it in effect for an unlimited amount of time while calling anything less surrendering to the terrorists, a new AUMF could end up giving the administration – or future administrations – more power to wage a broader war, rather than less.

But any decision – or indecision– could have significant consequences beyond 2016: Republican frontrunner Donald Trump has boasted he would “bomb the shit out of Isis” and, disturbingly, said the US military should kill their families as well. Ted Cruz bragged he would “carpet bomb” the Middle East. And, if you take away the rhetorical flourishes, it’s hard to tell how Hillary Clinton’s policy on Isis is any less hawkish than the Republicans.

The editors of Just Security put together a detailed outline of what a limited authorization against Isis could look like. It includes a demand that the authorization be geographically- and time-limited; remain in keeping with international law; force the administration to delineate objectives and report its progress in meeting those objectives; and be limited to Isis.

Unfortunately, it’s probably much too rational for this Congress to pass; it seems hardly worth hoping that this administration, or any administration, accept legislative limits on its power to wage war if it won’t accept constitutional ones. But at least they could admit that there are some.

Trevor Timm

Trevor Timm

Trevor Timm is a co-founder and the executive director of the Freedom of the Press Foundation. He is a writer, activist, and legal analyst who specializes in free speech and government transparency issues. He writes a weekly column for The Guardian and has also contributed to The Atlantic, Al Jazeera, Foreign Policy, Harvard Law and Policy Review, PBS MediaShift, and Politico. Follow him on Twitter: @TrevorTimm

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