President Obama is a fundamentally ineffective commander-in-chief. Nevertheless, under Article II, Section 2 of the U.S. Constitution, he is America’s sole commander-in-chief. But today, facing a looming U.S. Special Operations deployment to Syria, commentators are claiming that the president is exceeding his constitutional authority. The Atlantic’s Conor Friedersdorf offers a good example: “Without Congressional permission, public debate, or any attempt to rally the American public’s support, President Obama has ordered U.S. ground troops to a war zone, his most flagrantly unconstitutional war-making since he unlawfully helped to overthrow Muammar al-Qaddafi.”
Friedersdorf is wrong, and must be called out as such. First however, let me offer a caveat. I do not believe that a president is granted absolute military authority under the Constitution. As I argued during the 2011 U.S operation against Libya’s Qaddafi, under the War Powers Resolution, Congress must approve any combat operations ongoing after 60 days.
Still, such a reading of the law does not preclude the president from acting against the Islamic State (ISIS) without congressional authorization. For a start, consider the tradition of U.S. jurisprudence on executive power and U.S. military power. More specifically, consider the fact that the Supreme Court has been consistently reluctant to challenge presidential applications of U.S. military power. It’s clear that the judiciary has been unwilling to chill presidential authority as commander-in-chief. The judiciary’s likely intent has been to ensure that presidents are willing and able to use force in moments of national danger — even in uncertain situations.
Such deference to executive power also explains why the long-term covert use by presidents of U.S. military and intelligence forces (the CIA, etc.) has been tolerated. Just think about the Stuxnet cyber-virus that ripped apart Iran’s nuclear centrifuges. That was a hostile act, but one that all three branches of government have either directly or indirectly endorsed (by either authorizing the virus or allowing its continuation). After all, top Democrats and Republicans in Congress would have been briefed on the plan by the Obama administration under so-called “gang of eight” oversight rules. In addition, there was no demand for Benghazi-style inquiries after reporting on Stuxnet was leaked into the public domain.
#share#Yet there’s also a specific authority for President Obama’s action against the Islamic State: the 2001 Authorization for Use of Military Force (AUMF), which followed the September 11 attacks. Section 2.A authorizes the president “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.” [emphasis added]
The highlighted language is most relevant to military action against ISIS. Ultimately, the 2001 AUMF authorized military action — specifically compliant with the War Powers Resolution — to defeat U.S. adversaries aligned with al-Qaeda and to safeguard national security. From my perspective, ISIS manifestly falls under this orbit: It is the successor to Abu-Musab al-Zarqawi’s al-Qaeda in Iraq (AQI) organization. And just as Mr. Zarqawi cultivated long-term operational and logistical links with al-Qaeda core (Bin Laden’s group) in Afghanistan, today’s ISIS leadership, operations officers, and ideologically vested objectives all serve the enduring mission of transnational Salafi Jihadism, the mission that led to 9/11.
#related#Regardless, it’s not just the Islamic State identity that justifies Obama’s action, it’s the fact that ISIS retains a proven determination to attack the United States and our allies. Let me reemphasize this: The United States is not a side participant to ISIS threats; we’re a direct target. This threat is foreordained when ISIS threatens America’s closest allies in Europe and across the world.
The flowing reality thus becomes clear: President Obama has both the authority and the responsibility to confront the Islamic State with American military power. While his current counter-ISIS strategy is woefully inadequate, U.S. military strategy is at his sole discretion. Correspondingly, we can only hope our special operators will deliver some outsize strategic effect.