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09/11/2014

The President Does Not Need Further Authorization from Congress to Attack the Islamic State
Michael Ramsey

In an earlier post, I pointed out the challenges to arguing that the President needed Congress' approval to attack the Islamic State (IS).  Further reflection and some further events have convinced me that the answer is in fact fairly clear: no further authorization is needed.

To begin, I'll assume (a) that a conflict with a quasi-state entity such as IS is a war, (b) that the actions the President intends to take amount to war in the constitutional sense, and (c) under the original meaning of the declare war clause Congress must authorize all presidential initiations of war.  (I'm not sure either (a) or (b) is true, but assuming them simplifies the discussion.  For my argument on (c), see The Constitution's Text in Foreign Affairs, Chs. 11 & 12, and Textualism and War Powers, 68 U. Chi. L. Rev. 1543.)

The President can make two arguments, both independently persuasive.  First, Congress has authorized the use of military force against the threat posed by Iraq (the 2002 AUMF).  Under that authorization, President Bush not only ousted Saddam Hussein but also fought the Sunni insurgency that arose in western Iraq after a post-Saddam government was installed in Baghdad.  President Obama continued the latter conflict until he withdrew U.S. forces in 2011.  The IS is a direct descendant of the Sunni insurgent forces previously engaged by the U.S. in western Iraq -- indeed, it appears that it's really the same force, under a new name and a new leader (after prior leaders were killed by the U.S. and its Iraqi allies).  This detailed article traces the evolution of the group.  (Yes, its Wikipedia.  Students, don't do this on your research papers).  It states directly: "ISIS is the successor to … al-Qaeda in Iraq (AQI)—formed by Abu Musab Al Zarqawi ... which took part in the Iraqi insurgency against American-led forces and their Iraqi allies following the 2003 invasion of Iraq."

As a result, the 2002 AUMF covers the existing and contemplated conflict with IS (assuming it covered Bush's war against the Sunni insurgents in 2007-08, which I think everyone agrees it did).  If Obama had not withdrawn U.S. forces in 2011, it would be obvious that the current conflict is a continuation of the old (authorized) one.  But I do not see how what turned out to be a temporary U.S. disengagement terminated the 2002 authorization.  Surely a President can withdraw temporarily from a conflict without losing his authorization to reengage if he thinks (in the language of the AUMF) it is "necessary and appropriate" in order to "defend the national security of the United States against the continuing threat posed by Iraq".  Of course it would be different if the President had withdrawn at the direction of Congress (as was the case of Nixon in Vietnam), but that is not the case here.

Second, in my view of the Constitution's original meaning, the President does not need authorization to respond to a declaration of war against the United States.  The constitutional limit is only on war initiation and does not extend to wars begun by the other side.  Hamilton made this point strongly in connection with the U.S. engagement with Tripoli in 1801: "[W]hen a foreign nation declares or openly and avowedly makes war upon the United States, they are then by the very fact already at war, and any declaration on the part of Congress is nugatory; it is at least unnecessary."  (see 69 U. Chi. L. Rev. 1629 & n. 319).  Note: this argument depends on the additional proposition that the President, in responding to an enemy's declaration, can not only defend against attacks but also take the offensive.  That was Hamilton's view, and I agree.  See this article (93 Cornell L. Rev. 169).

In my earlier post I raised the question whether IS had declared (by word or deed) war on the United States, but I equivocated on the answer.  Now I think it's more clear, based on the intervening beheading of U.S. journalists and IS's accompanying statements.  IS appears to regard itself as at war with the United States and to intend the beheadings as acts of war.  Moreover, the President's executive foreign affairs power gives him authority to judge the status of the U.S.-IS relationship; if he reasonably thinks their actions amount to a declaration of war, that judgment seems sufficient.

As a final point, does this analysis change if the President attacks IS in Syria?  I think not.  Attacking in Syria is part of the conflict in Iraq, since IS is using Syria as a base to attack Iraq.  So whether the President has Congress' authorization from the 2002 AUMF or is acting on his own, he is entitled to extend the war as needed to encompass the enemy's bases. 

It would be different if, in attacking IS in Syria, the President initiated a conflict with the Syrian government.  That, I think, would require Congress' approval as the start of war with a new enemy.  But IS is itself at war with the Syrian government, and its bases -- though geographically in Syria -- are not in areas controlled by the Syrian government.  An attack on IS in Syria would not have as its goal any coercion of the Syrian government (indeed, it might be welcomed by Syria, although I do not think overt or tacit approval by the Syrian government is required).

In sum, I am persuaded that the President does not need further congressional approval to attack IS (in Iraq or Syria), both because such attacks are authorized under the 2003 AUMF and because the President has independent authority to respond to IS's declaration of war against the U.S.

FURTHER NOTE:  Josh Blackman comments on the issue here, strongly suggesting that congressional authorization is needed.  He also notes that the adminstration is (apparently) claiming authorization under the post 9/11 2001 AUMF (authorizing the use of military force against the perpetrators of the 9/11 attacks and those that supported them).  See this post from Ben Wittes at Lawfare.  I agree with Blackman, Wittes and Robert Chesney that this argument is weak.  As Ben Wittes puts it,  

I have always supported the administration in taking a broad view of what it means to be an “associated force” under the AUMF. But “associated” does not mean “not associated” or “repudiated by” or “broken with” or even “used to be associated with.”

It's significant that the adminstration appears to be backing away from an Article II independent power to conduct the IS operation.  Even though I think in this particular case there is a good argument for Article II power, hesitancy to deploy it undermines the broader views of Article II authority that are, in my view, inconsistent with the original design.