A day after President Obama told the American public he was preparing to bomb targets inside the sovereign state of Syria and that he did not need congressional approval to do so, critics are lashing out against what Bruce Ackerman, a professor of law and political science at Yale University, described as "imperial hubris" on Friday.
In his scathing op-ed in the New York Times, Ackerman writes:
President Obama's declaration of war against the terrorist group known as the Islamic State in Iraq and Syria marks a decisive break in the American constitutional tradition. Nothing attempted by his predecessor, George W. Bush, remotely compares in imperial hubris.
Mr. Bush gained explicit congressional consent for his invasions of Afghanistan and Iraq. In contrast, the Obama administration has not even published a legal opinion attempting to justify the president’s assertion of unilateral war-making authority. This is because no serious opinion can be written.
This became clear when White House officials briefed reporters before Mr. Obama’s speech to the nation on Wednesday evening. They said a war against ISIS was justified by Congress’s authorization of force against Al Qaeda after the Sept. 11, 2001, attacks, and that no new approval was needed.
But the 2001 authorization for the use of military force does not apply here. That resolution — scaled back from what Mr. Bush initially wanted — extended only to nations and organizations that “planned, authorized, committed or aided” the 9/11 attacks.
And Ackerman's not alone.
Robert Chesney, a professor at the University of Texas School of Law, told the Daily Beast this week that Obama's claim of authority to bomb ISIS targets in Syria was "on its face" an "implausible argument."
"The 2001 AUMF requires a nexus to al Qaeda or associated forces of al Qaeda fighting the United States," explained Chesney, but "since ISIS broke up with al Qaeda it’s hard to make" the case that authority granted by the AUMF still applies.
And as The Nation magazine's Zoë Carpenter reports:
The White House’s dismissal of the need for congressional approval is also in conflict with positions Obama himself expressed as a presidential candidate. “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation,” Obama declared to The Boston Globe in 2008.
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The situation in Iraq and Syria does not appear to meet that standard. Obama acknowledged on Wednesday that “[w]e have not yet detected specific plotting against our homeland.” Meanwhile, intelligence sources say that the threat from ISIS has been grossly exaggerated. “It’s hard to imagine a better indication of the ability of elected officials and TV talking heads to spin the public into a panic, with claims that the nation is honeycombed with sleeper cells, that operatives are streaming across the border into Texas or that the group will soon be spraying Ebola virus on mass transit systems—all on the basis of no corroborated information,” former State Department counterterrorism adviser Daniel Benjamin told The New York Times.
According to Ackerman, the president has put himself in a perilous position.
"The president seems grimly determined to practice what Mr. Bush’s lawyers only preached," the Yale professor concludes in his op-ed. "He is acting on the proposition that the president, in his capacity as commander in chief, has unilateral authority to declare war. In taking this step, Mr. Obama is not only betraying the electoral majorities who twice voted him into office on his promise to end Bush-era abuses of executive authority. He is also betraying the Constitution he swore to uphold."
And Carpenter says that in addition to defying Congress and his constitutional obligations, Obama should also be worried about the implications for his new strategy under international law. She writes:
It’s worth noting that the legality of an extended cross-border campaign isn’t only a question of the separation of powers. As Eli Lake noted at The Daily Beast, the White House has not explained the basis for the strikes under international law.
While the administration’s current attempt to circumnavigate Congress is hypocritical as well as potentially illegal, it’s also consistent with the way Obama has exercised US military power before. As Spencer Ackerman notes, he’s extended drone strikes across the Middle East and North Africa; initiated a seven-month air campaign in Libya without congressional approval; prolonged the war in Afghanistan; and, in recent months, ordered more than 1,000 troops back into Iraq. Promises of no boots on the ground notwithstanding, Obama’s war footprint is large, and expanding.