The Corner

U.S. Bombing Campaign in Syria and Iraq: Strategic and Legal Ramifications

I’m temporary between road trips, so some quick thoughts on the newly launched U.S. bombing campaign against jihadists in Syria and Iraq.

1. As significant as the strikes on IS/ISIS are the attacks against al-Qaeda franchises that have not broken away from original al-Qaeda. I’ve been arguing for a few weeks (e.g., here) that IS/ISIS is not even half of the equation — that al-Qaeda is also more powerful than it was prior to 9/11/01. Shortly after that, we got congressional testimony from Obama’s national-security team and other administration statements to the effect that al-Qaeda could be a more imminent threat to attack the US (even if IS/ISIS is currently the more powerful of the two networks in Iraq/Syria). 

2. If the administration is accurately stating that the al-Qaeda threat is imminent, the strategic importance of hitting al-Qaeda targets is obvious. But it is also worth considering the significant legal considerations.

The administration has been arguing that military action against IS/ISIS does not require congressional approval because it is covered by the 2001 authorization for the use of military force (AUMF) that applied to the 9/11 attacks and the 2002 AUMF that applied to Iraq. This argument may technically be correct (John Yoo makes a strong case for it, here and here), but it is debatable. IS/ISIS did not exist as such in 2001–02. It is, however, an al-Qaeda spin-off and the 2001 AUMF has been broadly construed to include other al-Qaeda franchises that exist now but did not on 9/11. The Iraq AUMF has also been very broadly construed . . . not to mention that the franchise IS/ISIS grew out of is al-Qaeda in Iraq (also known as AQI and AQIM — as in al-Qaeda in Mesopotamia).

But now, let’s add the al-Qaeda franchises into the mix (notwithstanding that they are in an on-again, off-again intramural jihad with IS/ISIS). There is no question that they are covered by the existing military force authorizations as those have been construed for the past 13 years (as I have long contended, this interpretation is a strained reading of the text, which has long needed overhauling). Equally significantly, consider the repeated recent statements by executive branch officials that the al-Qaeda franchises in Syria/Iraq pose “an imminent threat” to the United States. It is a longstanding doctrine, affirmed by the Supreme Court since the Civil War, that when there is an imminent threat the president has not only the authority but the duty to respond with any necessary force — it is an inherent power of the presidency under Article II of the Constitution and does not require a congressional green light.

The irony here is rich. President Obama has argued that the two AUMF resolutions should be significantly modified or repealed. He has also resisted Bush/Cheney-esque rationales based on the president’s unilateral Article II powers (although I’d note that the Bush/Cheney legend here is overstated by the Left: President Bush sought and obtained congressional authorization for military operations both after 9/11 and before toppling Saddam). Yet, here is Obama once again avoiding Congress in ordering military action and, to do so, having to rely on the AUMF resolutions and Article II of the Constitution.

3. This is not to let Congress off the hook. It is certainly true that the president did not ask for a declaration of war or its functional equivalent, an authorization of military force. But nothing in the Constitution requires Congress to be asked. Congress could have unilaterally voted to use force against IS/ISIS and al-Qaeda in Syria/Iraq. With midterms approaching and with the Middle East a disaster, congressional leaders opted not to subject members to a debate and vote that would have made them accountable. Not exactly profiles in courage. 

4. There are real problems with this operation, as we’ve observed repeatedly (see, e.g., here, here, here, and here). The jihadists cannot be defeated from the air even if they can be degraded, and our leadership of attacks against them is going to cause our enemies to put aside their internal squabbling and unite against us. We are already seeing this in statements by prominent Muslim Brotherhood figures against the U.S. offensive and in moves by IS/ISIS and al-Qaeda leaders to try to patch up their differences.

Nevertheless, the most disturbing problem is the administration’s entreaties (increasingly overt) to Iran and portrayal of the mullahs as a potential ally and stabilizing influence. IS/ISIS and al-Qaeda would not exist as they do today without Iran’s key conspiratorial role in their anti-American jihad. If we are going to deal seriously with the jihadist organizations, we have to see the cold reality that their state sponsors are our enemies, not our friends. Taking a hard line on Iran would also strangle its client, the Assad regime.

Instead, what I fear we are doing is degrading the Sunni jihadists for the benefit of the Shiite jihadists. (See, e.g., Bill Roggio’s Long War Journal report on how Hezbollah is benefiting from the U.S. air campaign in Iraq.) Worse, in our futile quest to make the incorrigibly anti-American Iranian regime a friend, we will make concessions to the mullahs’ nuclear ambitions — concessions that Obama has been too willing to make all along. The president now calculates, no doubt, that he can cover these concessions as the price necessary to bring Iran into the anti-jihadist fold. Kind of like cutting a deal with the Godfather to go after the button men.

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