But he should seek it anyway.
President Obama’s “strategy” for fighting the Islamic State — announced in his speech last night — is coming under fire from conservatives for lacking legal authority. I worry that they are allowing their short-term political opposition to Obama and his foreign policy to overcome the longer-term interest in preserving the powers of the presidency.
Meanwhile, President Obama could easily seek congressional approval, but he is squandering the executive’s powers so he can pursue a half-hearted, lower-intensity, regulatory approach to the tough business of war.
Good legal authority is no guarantee for good policy, of course. Just because the speed limit is 65 m.p.h. doesn’t mean everyone should drive as fast as 65 all the time, no matter the conditions. And, personally, I find the speech that President Obama delivered last night to lack any overall strategy. His policies — air strikes, coalition military support, and aid — are tactics designed to contain the Islamic State, but they are not a strategy for defeating the jihadist group and pacifying the region.
That said, President Obama does have a few legal grounds for attacks on the Islamic State.
To begin with, under Article II, Section 2 of the Constitution, the president is commander-in-chief of the armed forces. He is also vested with all of the executive power of the federal government. This has long been understood to allow the president to initiate military hostilities to protect the national security of the United States. Almost no one questions the president’s authority to respond to sudden attacks on the United States, and most people agree that this includes strikes that anticipate an attack (such as striking the Japanese fleet on its way to Pearl Harbor). This power should also allow the president to attack countries and terrorist groups to prevent them from harming the U.S., even if not with an imminent attack. (My former Justice Department colleague Robert Delahunty and I wrote a law-review article after the 9/11 attacks laying out the historical precedent for this view of presidential authority.)
I make the case for this in my new book, Point of Attack: Preventive War, International Law, and Global Welfare, but if you don’t believe me, believe Congress. In its 2001 Authorization for Use of Military Force (AUMF), passed with overwhelming support one week after the 9/11 attacks, Congress declared: “The President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.”
Even Congress recognized the president’s traditional authority to use force to prevent future attacks on the United States — and there seems to be no doubt that the Islamic State seeks to carry out such attacks.
The 2001 AUMF states:
The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
The 2001 AUMF would apply to the Islamic State if the group is linked to al-Qaeda or other groups/nations/organizations/persons involved with the 9/11 attacks. At one point, it appears, the head of the Islamic State took an oath of allegiance to al-Qaeda, but reports now claim that the former has broken with the latter. Because the AUMF’s application depends on this crucial question, the Obama administration — if it seeks to rely on the 2001 authorization — should present evidence to Congress and the American people proving the link.
Even if the 2001 AUMF did not apply, however, the Authorization for Use of Military Force in Iraq, passed by Congress in October 2002, provides more direct legal support. It states:
The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to—
(1) defend the national security of the United States against the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council resolutions regarding Iraq.
Despite the fact that the Obama administration was seeking the 2002 AUMF’s repeal last spring (another sign of how it erred in judging the threat from the Islamic State), this law authorizes U.S. military involvement in Iraq. Notice that it does not state that the authority is limited to overthrowing Saddam Hussein. It gives authority to the president to prevent national-security threats emanating from Iraq. The current such threat is that the Islamic State is developing a terrorist state with control over a large swath of Iraq, from which U.S. military and intelligence analysts believe the jihadist group will carry out attacks on the U.S. and its allies.
Furthermore, the relevant U.N. Security Council resolutions committed the U.S. to the reconstruction of Iraq, its territorial integrity, and political independence, and authorized states to prevent Iraq from threatening the region’s peace and stability. While President Obama may wish that mission were completed, the rise of the Islamic State shows clearly that it is not. Air strikes on the Islamic State and military aid to friendly Iraqi forces fall within the actions authorized by the text of the AUMF. (Interested parties can find a discussion of the U.N. resolutions in a short piece of mine in the American Journal of International Law.)
So despite our misgivings about President Obama’s policies, he has the legal authority to carry them out. As a matter of constitutional policy, I think it would make good political sense for President Obama to seek congressional support. After American setbacks handling recent conflicts in Ukraine, Libya, and Syria, our enemies and allies may have reason to doubt President Obama’s resolve. While he may not need an authorization for use of force as a constitutional matter, securing one would convey to the enemy, the Islamic State, and our shaky allies that the United States is unified and that Congress is willing to invest political capital in the long term to see the job through. Congress’s vote to approve the 2001 and 2002 AUMFs played a similar role. Even though, as one of President Bush’s legal advisers, I didn’t think he needed authorization from the legislature, we all agreed that seeking congressional support would send an important political message at home and abroad.
Liberals, it should be emphasized, who were screaming for President Bush’s impeachment for his allegedly illegal policies as commander-in-chief are largely remaining silent now. They were similarly quiet during President Clinton’s attack on Serbia in 1999–2000. A generous person would hope that liberals have finally learned their lesson about the president’s war powers, but after watching liberals twist and turn on the Constitution since the Vietnam War, we can only expect them to challenge wars run by Republicans while remaining mum when Democratic presidents go to war.
Conservatives in Congress could respond not only by voting to authorize hostilities against the Islamic State, whether in Iraq or Syria, but by voting for a large defense-spending increase well beyond what is necessary for the intervention. That would show that they understand the Islamic State is only a symptom of a greater American retreat around the world. While they cannot force the commander-in-chief to use the army, navy, and air force with determination and leadership, they can prepare the groundwork for a renewed American presence in the world under the next president.
— John Yoo is a law professor at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute. He is the author of Point of Attack: Preventive War, International Law, and Global Welfare, to be published next month by Oxford University Press.