As Congress prepares to authorize President Barack Obama to equip and arm Syrian rebels to fight the Islamic State militant group — with a final Senate vote likely Thursday afternoon — some members of Congress and legal experts are raising questions about the president’s legal authority to wage a long-term battle against the Islamic State militant group.
The Obama administration has cited the 2001 authorization of military force to fight the Taliban in Afghanistan and the terrorist network al-Qaeda — passed by Congress in the days after the 9/11 attacks — as justification. Defense Secretary Chuck Hagel during a hearing Wednesday on Capitol Hill even cited the 2003 authorization of force to invade Iraq.
But prominent members of Congress — and of the president’s own party — disagree.
For example, Sen. Tim Kaine, D-Va., a personal friend of Obama’s who served as his chairman of the Democratic National Committee, has been outspoken in demanding that the president seek some limited congressional authority.
“If Congress isn’t willing to do the hard work — to debate and vote on an authorization — we should not be asking our service members to go into harm’s way,” Kaine said in a statement introducing authorization language in the Senate. His proposal would authorize airstrikes against IS for one year and bar the use of ground troops. “With airstrikes going on, it would be a good time to do this sooner rather than later.”
Sen. Rand Paul, R-Ky., who comes from the more libertarian, non-interventionist wing of his party, told Secretary of State John Kerry at a hearing Wednesday that he thinks President Obama is violating the constitution by acting without a vote from Congress.
“Let’s be honest, politics are engaged here,” Paul said, alluding to the fact that several Democrats would rather not have a war vote during an election year. “People don’t want to have a vote before the election. They’re afraid of this vote. People are petrified not of the enemy, but petrified of the electorate. That’s why we’re not having this vote.”
Sen. Robert Menendez, D-N.J., chairman of the Foreign Relations committee, said Wednesday that his committee would draft a new authorization to use military force specific to IS in the coming days.
David Schanzer, a professor at Duke University and director of the Triangle Center of Terrorism and Homeland Security, said the question is whether the current conflict falls within the 2001 or 2002 authorizations for then-president George W. Bush to use force against al-Qaida and Iraq, respectively.
If it doesn’t, he said, then there is a constitutional question as to whether President Obama has the authority to attack the Islamic State without more specific and current authorization from Congress.
“I think it’s a stretch to say that [the Islamic State] is linked to al-Qaida in such a way to say that Congress back in 2001 authorized the president to use force to defeat it,” Schanzer said. “The further away we get and the more steps in logic you need to make to get from the language of the AUMF [authorization for use of military force], which talks about organizations that attacked us on 9/11, to [the Islamic State], the weaker the argument is.”
Marty Lederman, a constitutional law professor at Georgetown University, who served as a deputy assistant attorney general in the Obama Department of Justice, argued that the president could be within his authority to act.
“It is difficult to assess whether the reading of the 2001 AUMF to cover [the Islamic State] is valid, since it depends upon certain factual conclusions that the administration has not yet explained in detail — in particular, on the notion that [the Islamic State] adhered to al-Qaeda’s mission of attacking the United States even after its split from al-Qaeda,” he told the NewsHour in an email. “The argument is not, however, as patently implausible as many observers appear to assume and, perhaps more importantly, it is a much more constrained argument than the interpretations of the Constitution or the War Powers Act that many had anticipated — arguments that would have had a much more expansive impact on executive authority than the 2001 AUMF theory has.”
But with Congress on its way out the door for a final month of campaigning, any debate or vote on an authorization is unlikely to take place before the midterm elections.
Rep. Adam Schiff, D-Ca., has introduced his own authorization language in the House.
“These are precisely the circumstances in which Congress must be called upon to exercise its Constitutional authority to ‘declare war’ by voting on an authorization to use force,” Schiff said in a statement to the NewsHour. “While there is increasing interest in doing so among members on both sides of the aisle, it looks likely that we will not have the opportunity to do so until the lame duck session weeks from now.”
House Minority Leader Nancy Pelosi and fellow Democrat and Californian Sen. Barbara Boxer, however, both say they believe President Obama has the authority he needs to fight the Islamic State already.
But Pelosi cautioned that she and other fellow Democrats would not support American ground troops being committed.
“I will not vote for combat troops to be engaged in war,” Pelosi told reporters Wednesday. “The sentiment of our caucus has been that we are not supporting combat troops in how we solve this problem.”