Ius Gentium

University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues


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Authorization to Use Military Force Against ISIL: What the President Wants and Why it Doesn’t Matter

Matt Matechik

What did President Obama “ask” Congress?

On February 11, 2015 President Obama formally approached Congress and implicitly sought their approval to use American military force against the Islamic State of Iraq and the Levant (ISIL). Specifically, the President submitted a draft joint resolution Authorization to Use Military Force (AUMF) and encouraged Congress in a formal letter to pass it.[i]

If passed in its current draft form (highly unlikely), the AUMF would grant the President Congressional approval to use American military forces against ISIL “and associated persons or forces” for a period of up to three years. The draft does not impose any geographic restrictions. Therefore, the President would be authorized to conduct military operations against ISIL in Iraq, Syria, Libya (where ISIL appears to have gained a foothold[ii]) and absolutely anywhere else in the world he deems “necessary and appropriate.”[iii] (NOTE: The AUMF only gives the President the domestic legal authority to enter into either Iraq, Syria, Libya, or other states. This blog will not deal with the international authority the President has to do so.)

Although the draft AUMF would not limit the location of military operations, it does purport to limit their scope. The draft prohibits activity that rises to the level of “enduring offensive ground combat operations.”[iv] The administration claims that this phrase prohibits large-scale long-term military campaigns such as those recently conducted by the United States in Afghanistan and Iraq. However, the stipulation would not prohibit the use of ground forces for less involved purposes such as rescue operations and pursuit of ISIL leadership. Additionally, the AUMF would allow “the use of U.S. forces in situations where ground combat operations are not expected or intended, such as intelligence collection and sharing, missions to enable kinetic strikes, or… other forms of… assistance to partner forces.[v]

This draft language, even with the limitation, is actually very broad, despite what some members of Congress are claiming. The draft intentionally uses open-ended phrasing that President Obama could potentially cite in committing American forces to ground combat.

AUMF ISIS Blog

Why did the President reach out to Congress?

President Obama approached Congress as part of his “commitment to working with Congress… to authoriz[e] the continued use of military force to degrade and defeat ISIL.” The President urged Congress to “join [him] in supporting our Nation’s security… which would show the world we are united in our resolve to counter the threat posed by ISIL.”[vi]

Did the President really “ask” Congress for anything?

No! The language of President Obama’s letter to Congress is extremely precise. A careful reading reveals that the President is not actually asking Congress for anything at all. To the contrary, the letter explicitly states that he already has all the authority he needs.[vii] The President is simply inviting Congress to provide their stamp of approval for military action that he is already undertaking and presumably will continue to undertake with or without Congress.

President Obama’s posture is not surprising. Historically, the sitting President, no matter his party, and Congress have performed a delicate dance around the subject of who controls the use of American military force abroad. The tension between the executive and legislative branches stems from the Constitution, which confers upon the President unspecified powers commensurate with the title “Commander in Chief” while endowing Congress with numerous specific war powers including, but not limited to, the power to “declare war” and “organize, fund, and maintain the nation’s armed forces.”[viii]

What about the War Powers Resolution?

This “dance” took on its modern form in 1973 when Congress passed the War Powers Resolution (WPR) to “to insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.”[ix] The WPR, at least on paper, requires the President to involve Congress at various points before, during, and after his decision to use force. One of its most controversial provisions requires the President to terminate military action within sixty days of its initiation unless Congress has declared war, extended the sixty-day period, is physically unable to meet, or provided statutory authorization.[x]

In practice, the WPR has done little to prevent the President from unilaterally committing American forces to foreign theatres. The sitting President, no matter his party, typically finds some way to circumvent the WPR’s purpose of involving Congress while still purporting to be consistent with the WPR. The President usually claims he already has all the authority he needs by virtue of his title as Commander in Chief and/or he interprets a statute in a particular way to find the Congressional approval he needs.

AUMF ISIS Blog 2

Sixty Days?! Haven’t we been fighting ISIL for months?!

Yes! The present scenario illustrates the WPR’s questionable influence. President Obama initiated a sustained air campaign against ISIL targets in Syria on September 22, 2015.[xi] Since that time there has been no declaration of war, no extension of the sixty-day period, and no problems with Congress meeting. Under the WPR, President Obama therefore has two choices: obtain Congressional statutory approval for the military action sixty days after initiation or terminate the mission. And yet, only now, 142 days later, far past the sixty-day deadline, is the President seeking statutory authorization and, as noted above, he is not truly even asking for it.[xii]

It should be noted that President Obama’s apparent disregard for the WPR is not unique to his administration. President George H.W. Bush ordered thousands of American servicemen to Somalia during December 1992 without explicit approval from Congress. He “found” statutory approval for the military deployment by broadly interpreting a statute that supported a US humanitarian mission in Somalia. President Bill Clinton ordered over 20,000 American troops to invade Haiti during September 1994 without explicit approval from Congress. His primary argument for nixing Congress was that the operation did not rise to the level of “war” requiring a declaration and therefore Congress need not be involved. These are only a few examples of many.

What happens now?

War (at least the political kind)! Congress must debate the draft AUMF and then either pass it as written, pass it with changes, or pass no AUMF at all. Ultimately, whatever Congress decides will not matter. If they pass any AUMF, the granted authority will be largely for symbolic purposes only. If they do not pass an AUMF, it is all but certain that President Obama will continue to commit American forces to the fight anyway. For the President, it’s a win-win. He will either by a wartime Commander-in-Chief enjoying the support of Congress as he battles America’s enemies abroad or he will be the President who was willing to stand up to the evil that is ISIL when Congress seemingly refused.

AUMF ISIS Blog 3

The political game surrounding the draft AUMF is likely to continue for some time. Politicians will squabble and legal scholars will debate the legal powers of he executive and legislative branches. Meanwhile, the United States is already at war with ISIL, regardless of who formally signs off on it, and will be for the foreseeable future.

Matthew Matechik is an Evening J.D. student at the University of Baltimore School of Law (Class of 2016). He currently works full-time for the U.S. Federal Government as a Counterterrorism Analyst. He has a Bachelors of Arts (Magna Cum Laude, 2008) from Florida State University. All views in this blog post are Matthew’s own views and do not represent that of the U.S. Government. 

[i] http://www.whitehouse.gov/the-press-office/2015/02/11/letter-president-authorization-use-united-states-armed-forces-connection

[ii] http://www.telegraph.co.uk/news/worldnews/islamic-state/11418966/Islamic-State-planning-to-use-Libya-as-gateway-to-Europe.html

[iii] http://www.whitehouse.gov/sites/default/files/docs/aumf_02112015.pdf

[iv] http://www.whitehouse.gov/sites/default/files/docs/aumf_02112015.pdf

[v] http://www.whitehouse.gov/the-press-office/2015/02/11/letter-president-authorization-use-united-states-armed-forces-connection

[vi] http://www.whitehouse.gov/the-press-office/2015/02/11/letter-president-authorization-use-united-states-armed-forces-connection

[vii] http://www.whitehouse.gov/the-press-office/2015/02/11/letter-president-authorization-use-united-states-armed-forces-connection

[viii]  U.S. Const., art. II, § 2, cl. 1, U.S. Const., art. I, § 8, cls. 1114.

[ix] 50 U.S.C.A. § 1541.

[x] 50 U.S.C.A. § 1544.

[xi] http://www.whitehouse.gov/the-press-office/2014/09/23/statement-president-airstrikes-syria

[xii] President Obama seems to be keeping the 2001 AUMF in his back pocket to claim Congressional authorization even if Congress does not pass an ISIL-specific AUMF. The 2001 AUMF authorized the President to use force against “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 Obama administration suggested as early as September 2014 that they could rely on the 2001 AUMF. See http://www.whitehouse.gov/the-press-office/2014/09/23/background-conference-call-airstrikes-syria. This position is problematic given that ISIL, a new group distinct from al-Qaida, had nothing to do with the September 11 attacks.

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The Drones are Coming, the Drones are Coming…

Matthew Matechik 

A man drives his beat up old Toyota truck down a dirt road meandering through sparse terrain. Unbeknownst to him, his every move is being watched. For a brief, almost imperceptibly, short moment he hears a loud noise. A flash! And just like that, the man is instantly dead. His body is disintegrated amidst the rubble that was his truck. A missile fired from an unseen unmanned aerial vehicle (UAV or “drone”) has eliminated its target with ruthless efficiency. The strike is the successful culmination of countless hours spent finding the man, confirming his identity, confirming his affiliation, analyzing his movements, considering the legality of a strike, and finally identifying an opportunity that minimizes non-combatant casualties.

predator-firing-missile4

This scene or something like it has played out numerous times during America’s post 9/11 “War on Terror.” Drones target terrorist combatants in places like Afghanistan, Pakistan, Somalia, and Yemen (where just last week an American drone strike reportedly killed senior al-Qaida in the Arabian Peninsula (AQAP) leader Harith bin Ghazi al-Nadhari[i]).

The drone program has been effective. According to some unconfirmed reports, drone strikes have killed as many as 2,000 combatant terrorists in Pakistan alone and the frequency of strikes has increased dramatically since President Obama entered office.[ii]  The drone has become a proven weapon in the ongoing fight against global terrorism. The US government has asserted that the strikes are legal under international law because they are carried out in self-defense against persons who present a continuing imminent threat and are affiliated with al-Qaida and associated forces with which the US is at war. The US further asserts that the strikes are in accordance with the Geneva Convention because the drone’s advanced technology, most notably its precision, minimizes civilian casualties and collateral damage.[iii]

The UN has criticized the US position as being based on too broad a definition of “imminence,” which must exist in order for self-defense to be legally justified.[iv] The UN critique exposes a potential problem the US has created by setting this precedent. Other nations, perhaps as many as 87 of them, are quickly building or already have their own drone fleets.[v] What will happen when these nations’ drone technology catches up to that of the US? What if those nations are hostile toward the US or its allies? Will they rely on the US understanding of self-defense to likewise justify anonymous killings of persons located outside their territory?

chinese-drones

Consider the Chinese, whose drone capabilities are rapidly catching up to those of the United States.[vi] China could easily apply the American legal argument to justify killing someone they claimed to be a Uighur separatist located in Kazakhstan, for example. What about an ethnic Uighur who happens to be a United States citizen? Could China use the American self-defense argument to justify killing this American? It would appear so as long as China deemed the American to be associated with a fighting force that China is engaged in armed conflict with. Take the logic a few steps further and it quickly becomes clear that any country could feasibly kill persons located abroad using drones by stretching the self-defense argument to suit the needs of the day.

The hypotheticals above are not far fetched. The drones are coming. The drones are coming and currently there is no formalized body of international law to regulate them beyond the general laws of war. We have the American precedent to go on but not much else.

russian-drones-omg

An international treaty governing the use of combat drones could alleviate concerns of widespread death from above. The drones do not represent the first time that technology has evolved faster than international law. At one time for example, the US was the only nation with nuclear weapons. As other nations gained the same technology, the nuclear-armed nations were able to form international treaties to regulate their use. Even enemies came to the table in the interest of humanity. So far the regulations have, thankfully, worked, at least in the sense that humans have not wiped themselves off the Earth yet. Perhaps a similar spirit of cooperation can inspire international regulation of drone warfare, although success could be difficult to come by given the high number of nations with drones.

The drones are coming. When they do, where will the battlefield be? Who will be targeted in self-defense? Can international law find a way to regulate the situation before it gets out of control? Time will tell. In the meantime, keep your eye on the sky. The drones are coming.

Matthew Matechik is an Evening J.D. student at the University of Baltimore School of Law (Class of 2016). He currently works full-time for the U.S. Federal Government as a Counterterrorism Analyst. He has a Bachelors of Arts (Magna Cum Laude, 2008) from Florida State University. All views in this blog post are Matthew’s own views and do not represent that of the U.S. Government. 

[i] http://www.cnn.com/2015/02/05/world/yemen-violence/index.html

[ii] This number is an estimate. Casualty estimates vary wildly. Official reports are not available. http://www.washingtonpost.com/world/national-security/drone-strikes-killing-more-civilians-than-us-admits-human-rights-groups-say/2013/10/21/a99cbe78-3a81-11e3-b7ba-503fb5822c3e_story.html

[iii] http://www.npr.org/templates/story/story.php?storyId=125206000; http://jurist.org/forum/2013/10/jordan-paust-drones-justification.php

[iv] http://www.globalresearch.ca/drone-warfare-findings-of-u-n-reports-on-extrajudicial-and-arbitrary-executions/5355601

[v] http://www.washingtontimes.com/news/2013/nov/10/skys-the-limit-for-wide-wild-world-of-drones/?page=all

[vi] http://rt.com/news/china-stealth-drone-flight-127/


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Eliminating the IS Threat – Why a U.S. Led Coalition Was the Only Way It Would Work

Lindsay Stallings

The Islamic State (IS), also known by the acronyms ISIS (Islamic State of Iraq and Syria) or ISIL (Islamic State of Iraq and the Levant), has been growing in their power and their influence around the Arab world. However, while they are creating a daily panic in Syria and Iraq, they are causing great concern for the rest of the world.  IS is largely autonomous. They have stolen, robbed, or bartered for their money, weapons, and even slaves. The international concern for IS’ activities stems not only from their humanitarian violations against those in Syria and Iraq; but more, the fear that comes from their sheer power. It is for this reason that President Obama, who had once had been so adverse to relying on the 2001 and 2002 AUMFs, felt it necessary to rely on these very legal instruments to bolster his arguments for air strikes against IS. In doing so, he has made his smartest and most mature foreign policy decision of his Presidency – taking charge and leading a coalition of states in eliminating the IS threat.

In the middle of August of 2014, IS released their first viral video – the beheading of American journalist James Foley, who was beheaded for the sins of the Americans. They have beheaded innocent people, have raped and pillaged villagers, and have terrorized countless populations; and there seems to not be an end in sight. [1] President Obama has admitted that US intelligence on the strength of IS was lacking.[2] Over the past few years of Syrian unrest, IS has been able to use widespread lawlessness to recruit and develop their jihad. The United States, along with five Arab nations and France,[3] began air strikes against IS two weeks ago. From outside reports it seems that strikes are currently being aimed at infrastructure and oil strongholds.[4] Thus far, there is a general avoidance of targeting individuals and more of a focus on materials. This makes it clear that the US and their allies recognize the importance of IS’ resources. It is obviously important to not underestimate the strength of IS’ message, both in the Arab world and globally, but their resources will run out long before their passion for the advancement of the Islamic State and, in reality, the loss of resources will hurt them first.  However, to compound the obvious hole in U.S. intelligence, an IS combatant has publicly stated that IS was prepared for the U.S. airstrikes, claiming they have been ineffective against IS.[5] _77944799_iraq_syria_air_strikes_624_01_10_14_v2 The US made the first move on the airstrikes and did so without the full support of the international community. Should the world and, potentially more importantly, US citizens take notice of this deviation in President Obama’s approach to unrest in the Middle East? In a time when the US is fighting an image battle in the Middle East, this was a bold move, and one that seems to have been made less for political reasons than it was for moral ones. It is worth a great deal of commendation that our administration is willing to take this step. Mind, we are not doing this alone, there are multiple Arab countries fighting for their own borders, along with French, British, Belgium, and Danish support, a total of fifty countries have signed on to support the airstrikes.[6] This support comes in the form of ground support, air support, and of course, political support. But, this all began before President Obama went to the United Nations. Before he was forced to explain why the US thought they could, should, and had the right to get involved. The event to be considered here is why the President of the United States decided to commence air strikes and then, at least two weeks later, plead with the international community for their support and encourage action to be taken against ISIS. During the course of his presidency, President Obama has rarely taken international action without wandering around the world, garnering as much support, either implicit or explicit, as he could. But here, he essentially said, “World, we know what we are going to do to deal with this -what are you going to do?” UN-SECURITY COUNCIL-OBAMA This shows a certain level of foreign relations maturity on the part of POTUS. He and his advisors made a decision that we could not stand by and let ISIS terrorize Iraq, Syria, Christians, Jews, the Yazidi (a Kurdish ethno-religious community who practice Yazidism in Iraq), and threaten to lash out at America, without doing something. The President ran his first campaign on the auspices that the “War On Terror” must end. He ended the war in Iraq, he started to pull out of Afghanistan – and is continuing that effort for all intents and purposes – but the Middle East is still in constant, bubbling, turmoil. And, in the end, the US is the US. The world’s savoir, the moral-driven, freedom to all races and creeds-focused, rescuer of all, right!? But, is that our job? Is that the job of the American Armed Forces to step in and save all of those deemed unable to save themselves? I think that President Obama’s decision to direct airstrikes against IS is indeed his most mature foreign policy move to date. He did not wait for the rest of the world powers to support him, he did not ask permission from anyone aside from Congress[7], and did what was right for the United States and the areas in the Arab world we have taken responsibility for over the last ten years. It would have been sadistic on the part of the U.S. to just sit back and watch as Iraq, a country we essentially decimated over the past decade, to struggle to fight this new radical bastardization of Islam that currently terrorizes them. The US took on this responsibility in 2001. We tried to establish communities and governments that would help the weakened and tired populations of the Arab world. We tried to empower them and build democracy. It has not worked yet and we are, clearly, not done. So, when a new group rises up, a group more terrifying than Al-Qaeda has ever been, we cannot step away. The President put on his ‘I am a world leader’ pants and he worked with those who were suffering the most. He created a coalition of the willing and took responsibility for the role the United States played in allowing this to happen. French When President Obama spoke to the United Nations he did not tell the world that we were doing the right thing for everyone. He made it clear that this was important to the US, and why. He did not tell the United Nations that the US was better than the rest of them for taking action; he actually made clear that the US has struggles too.[8] There are school shootings, race riots, militarizing police forces, renegade shooters targeting law enforcement officers, individuals setting wild fires – the list of domestic struggles the US is facing is not less than that of any other country. And finally, President Obama recognized that by not pretending we were better than every other country, those countries were more willing to listen to our silent pleas for help. The President was begging for other countries to step in, to step up and recognize that the threat from IS is not just against those in the Arab world or just against the US, it is a threat to the general level of safety most citizens of the world feel as they go about their daily lives. The French joined in the airstrike offensive on September 19 with the US and Arab partners.[9] Thus far, France has only acted in Iraq, wary to move into Syria and encourage any more disturbances. However, as of Friday, September 25, they have said they are considering moving into Syria on the tail of a French tourist’s beheading by an Algerian terror organization.[10] Yesterday, the UK carried out its first air strikes in Iraq[11]  after voting last Friday to authorize action in Iraq.[12] No mention was made of the UK going into Syria, which shows that they too are wary of moving into an area where they are not invited. UK Parliament Each country currently involved or considering involvement in this offensive is doing so for country-specific reasons, not based on the perceived duty owed to the international community as a whole. A sense of general duty did not work as well as they hoped ten years ago in Iraq, but maybe this time there will be more successful. Personal involvement, a sense of devotion the protection of oneself, will hopefully deal with this matter with less bureaucracy and more effectiveness. Only when there is an understanding that this is not only a worldwide threat but also a worldwide responsibility can we finally defeat IS.

Lindsay Stallings is third year student at the University of Baltimore School of Law, planning to graduate in May 2015 with a J.D. and concentration in International Law. She graduated from The Ohio State University in June of 2011 with a Bachelors of Science in Political Science with minors in Sociology and International Studies. She has also studied  Spanish and Arabic language and culture extensively. While at The Ohio State University, she was a member of the International Affairs Scholars program, through which she studied abroad in Bulgaria. She was active in the Undergraduate Student Government and was a member of various academic and student life university-level committees.  Her primary interests are international law, national security, and U.S. Military and diplomatic policies. Through her coursework and relationships with our international law faculty she has developed a more focused interest in the policies surrounding international conflict and the capabilities of international courts. Lindsay currently serves as the Careers Director on the International Law Society and is a Staff Editor on the Journal of International Law. Her legal coursework and extracurricular activities have given her the opportunity to mold her passion for cultural studies and problem solving into an exciting international legal career.

[1] Rod Mills, Family anguish over Glasgow schoolgirl turned jihadi (Sep. 4, 2014) http://www.express.co.uk/news/uk/506765/Family-anguish-over-Glasgow-schoolgirl-turned-jihadi; Teenage jihad: 2 Austrian girls stopped en route to join ISIS, (last edited Sep. 10, 2014) http://rt.com/news/186536-austria-schoolgirls-join-isis/.

[2] Stephen Rex Brown, President Obama admits U.S. ‘underestimated ISIS’ strength – but knocks other superpowers for failure to act (Sep. 28, 2014) http://www.nydailynews.com/news/politics/obama-admits-u-s-underestimated-strength-rise-isis-article-1.1955804.

[3] France Says Carried Out Air Strikes In Iraq September 25 (Sep. 25, 2014) http://www.rferl.org/content/iraq-france/26605701.html.

[4] Scott Neuman, Airstrikes Move to Syria, Target More Than Just ISIS (Sep. 23, 2014) http://www.npr.org/blogs/thetwo-way/2014/09/23/350820165/airstrikes-move-to-syria-target-more-than-just-isis; New airstrikes, new tactic to beat ISIS (Sep. 25, 2014) http://www.cbsnews.com/news/u-s-arab-allies-airstrikes-target-isis-oil-refineries/.

[5] Arwa Damon and Holly Yan, ISIS fighter says U.S. airstikes aren’t effective (Sep. 29, 2014) http://www.cnn.com/2014/09/29/world/meast/isis-fighter-and-defector-interviews/index.html?hpt=hp_t1.

[6] Stephen Castle and Steven Erlanger, Nations Offer Limited Support to Attack on ISIS (Sep. 26, 2014) http://www.nytimes.com/2014/09/27/world/europe/british-parliament-vote-isis-airstrikes.html?_r=2; Michael Pearson, Greg Botelho, and Ben Brumfield, Anti-ISIS coalition grows, but that doesn’t mean victory is near (Sep. 27, 2014) http://www.cnn.com/2014/09/26/world/meast/isis-syria-iraq/index.html.

[7] Lisa Mascaro, Congress mostly approves of airstrikes in Syria so far (Sep. 23, 2014) http://www.latimes.com/nation/politics/politicsnow/la-pn-congress-syria-airstrikes-20140923-story.html (explaining that Congress approved of support of training and equipping moderate Syrian rebels).

[8] Stewart M. Patrick, President Obama’s UN Speech: Defending World Order (Sep. 24, 2014) http://blogs.cfr.org/patrick/2014/09/24/president-obamas-un-speech-defending-world-order/.

[9] France Carried Out Airstrikes, supra note 2.

[10] Id.; France Considers Airstrikes Against ISIS in Syria After Beheading (Sep. 25, 2014)  http://www.nbcnews.com/storyline/isis-terror/france-considers-airstrikes-against-isis-syria-after-beheading-n211221.

[11] Jenny Gross, U.K. Carries Out First Airstrikes in Iraq (Sept. 30, 2014) http://online.wsj.com/articles/u-k-ministry-of-defense-raf-carried-out-its-first-airstrikes-in-iraq-1412097556

[12] Nicholas Winning and Jenny Gross, British Parliament Approves Airstrikes in Iraq Against Islamic State (Sept. 26, 2014) http://online.wsj.com/articles/david-cameron-calls-for-u-k-parliament-to-vote-for-iraq-airstrikes-on-islamic-state-1411725035


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Justification for Attacking IS – Is it Legal?

Clark Smith

In the wake of the President’s address to the nation on forthcoming US-led action against the Islamic State (IS) in Iraq and Syria, foreign officials abroad and legal scholars at home are lambasting the President for his presumed lack of legal justification.  In a primetime speech on September 10, the President laid out his strategy to “degrade and ultimately destroy” IS.  In short, his four-part strategy includes: continued air strikes against IS targets, though now expanding to Syria; increased support to forces fighting IS, in the form of additional US uniformed trainers and advisors in Iraq and providing of arms, equipment, and coordination for training to forces inside Syria; continued counterterrorism efforts aimed at denying IS necessary logistics and support by working with international partners to cut off funding, stem the inflow of foreign fighters, and countering IS propaganda; and further humanitarian assistance to those displaced by IS.  Although the President claims bipartisan support, he also claims “the authority to address the threat from ISIL.”  It is the airstrikes planned for Syria-based IS targets and the President’s presumed basis for authority to attack IS more broadly that concerns legal experts.

Iraq map locator

Both Syria and its ally Russia assert that any US airstrikes against targets in Syria would be in violation of international law.  A Syrian government spokesman warned that “any action [against IS] without the consent of the Syrian government would be an attack on Syria.”  And despite ongoing Russian involvement in the Ukraine, a Russian spokesman warned that any US action in Syria absent “an appropriate decision of the UN Security Council, [] would become an act of aggression, a crude violation of the norms of international law.”  Article 2(4) of the UN Charter would certainly seem to support Russia’s assertion of the Syrian position.  And with Russia’s position on the Security Council, a Security Council decision supporting the US strategy is all but impossible.  But, a Security Council decision condemning, or even prohibiting, the forthcoming US action in Syria is equally impossible.  Just as international law has been ineffective in curbing Russian aggression in the Ukraine, so too will it be ineffective in facilitating the efforts of any of the US’s detractors in dismantling IS.  Even if legitimate international law concerns did exist regarding the US strategy for addressing the IS threat, the US interests do, and should, outweigh those concerns (I make this argument here in my law article, on page 192).

Mapping the Syrian Conflict

More concerning to legal scholars, at least from a domestic perspective, is the President’s claim that he already has “the authority to address the threat from ISIL.”  Presumably, the President is referring to the Authorization for Use of Military Force (AUMF) passed by Congress in 2001 in response to the 9/11 attacks.  The key language of that AUMF indicates…

“…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.”

Since being passed for combat operations in Afghanistan, the AUMF has also provided the legal basis for attacks against al Qaeda, and affiliates, in Pakistan, Yemen, and Somalia.  Just last year Pentagon legal experts defended broad authority under the AUMF when testifying at a Senate Armed Services Committee hearing.  According to the Pentagon legal experts, “the broad interpretation of the AUMF [] gives them the flexibility to deal with the changing threat in a lawful, effective manner.”  Members of the Committee disagreed with the broad authorization assessment, yet no specific solutions were suggested.  Just weeks after that Senate Committee hearing, the President called for a repeal of the AUMF referring to it as the “perpetual war” law.  What he did not call for, however, was a deadline by which to repeal it.  Probably not a calculated risk, but not addressing the “perpetual war” law was a good move in hind-sight.

Obama IS Announcement

In recent months, the Commander in Chief appeared to be relying on his Article II powers to prosecute the limited campaign against IS targets in Northern Iraq.  This was evidenced by the multiple War Powers Resolution letters sent to Congress keeping them informed.  Relying on this authority for the limited strikes and in light of several AUMFs being considered, if not avoided, in Congress in the run up to the President’s speech, it was no doubt quite a surprise when the President claimed he already had the necessary authority to prosecute a sustained campaign against IS.  Experts question why the President did not insist first on Congressional support, but the President has been down that road only a year earlier when Congressional support for action against Assad’s Syrian regime for their use of chemical weapons on their own citizens was clearly, and embarrassingly, unobtainable.

The President’s justification for waging sustained conflict against IS, reliance on the 2001 AUMF, is a stretch indeed.  But it is plausible.  According to the language of the AUMF, the President determines those persons or organizations that participated in the 9/11 attacks.  That was clearly al Qaeda.  Since that time, the President has retained authority to use that AUMF to attack al Qaeda affiliates in South Asia, the Arabian Peninsula, and Africa.  The stretch, albeit a plausible one, is identifying IS as an al Qaeda affiliate or at least something that was at one time an affiliate of al Qaeda.  IS was born of al Qaeda in Iraq and only recently did Ayman Zawahiri disavow IS.  This same organization, regardless of name, attacked US forces in Iraq during the Iraqi war and continues to carry on the legacy of the former al Qaeda leader, Osama bin Laden.

In the end, the point may be moot if the President can get the Congressional authorization he very much wants, but is very reluctant to ask for.

Clark Smith is a third-year law student pursuing a concentration in International Law. He has undergraduate and graduate degrees in Political Science and International Relations. In addition to being a Student Fellow, he is the Submissions Editor for the Journal of International Law. His previous experience includes work in both security and policy and his previous overseas postings include Western Europe, the Balkans, the Middle East, and South Asia. His professional interests include international development.