President Obama appears to have strong bipartisan support in Congress to carry out airstrikes in Syria and Iraq. He also made his case for aggressive action in a speech to the United Nations on Wednesday. Most Western and Middle Eastern nations seem to be supporting military action, which the president describes as a counterterrorism strategy, not a war.
Yet legal scholars as well as critics of the administration say the White House lacks a legal justification for the strikes inside Syria. The administration counters that its actions against the group that calls itself the Islamic State are covered by the Authorization for Use of Military Force that was passed in 2001 in the wake of the attacks of Sept. 11.
And in a letter to Congress released shortly after remarks Tuesday, Obama said he was acting “pursuant to my constitutional and statutory authority as Commander in Chief (including the authority to carry out Public Law 107-40) and as Chief Executive, as well as my constitutional and statutory authority to conduct the foreign relations of the United States.”
He said his letter was “part of efforts to keep the Congress fully informed, consistent with the War Powers Resolution.”
Obama is likely to seek formal congressional approval for the strikes in Syria. He could additionally seek legal justification for the U.S. actions from the U.N. Security Council, but is unlikely to get it because of opposition to the strikes from Russia, a veto-wielding member of the body.
But the U.S. has previously acted without U.N. Security Council approval. In 1999, the U.S. and its allies in NATO bombed Serbia despite not having approval from the body. A year earlier, the U.S. struck al-Qaida targets in Afghanistan and Sudan, also without the Security Council’s blessing.
“Airstrikes in Syria cannot be justified under international law: They lack a lawful basis in consent, self-defense or [U.N.] Security Council authorization,” said Mary Ellen O’Connell, a professor of international law at the University of Notre Dame. “Even with a lawful basis, where is the showing that airstrikes have a chance of success? The U.S. aim is to remove the Assad government and ISIS — contradictory aims. The U.S. history of unlawful airstrikes against terrorism suspects is a dozen years of failure.”
Under the U.N. Charter, the violation of a country’s territorial integrity without the country’s or the U.N. Security Council’s express approval is forbidden.
Syrian President Bashar Assad, meanwhile, said this week that he supported “any international anti-terrorism effort.” That’s according to The Associated Press, which quoted the state news agency SANA.
Writing in Time, Jack Goldsmith, a professor at Harvard Law School, says that the problem with the Obama administration’s “approach is that its premise is unconvincing.”
Goldsmith points out that the 2001 law authorized the use of force against al-Qaida and its associates. But the Islamic State and al-Qaida are, in fact, at odds.
“The president’s gambit is, at bottom, presidential unilateralism masquerading as implausible statutory interpretation,” he adds.
That’s a view shared by Bruce Ackerman, a professor of law and political science at Yale, who said in The New York Times that Obama, by “acting on the proposition that the president, in his capacity as commander in chief, has unilateral authority to declare war … is not only betraying the electoral majorities who twice voted him into office on his promise to end Bush-era abuses of executive authority. He is also betraying the Constitution he swore to uphold.”
The White House has maintained that though it does not need congressional approval for its actions, it will coordinate closely with lawmakers.
“I have the authority to address the threat,” Obama said earlier this month. “But I believe we are strongest as a nation when the president and Congress work together. So I welcome congressional support for this effort in order to show the world that Americans are united in confronting this danger.”
A senior administration official told The New York Times that, in the words of the newspaper, “new approval was unnecessary as a legal matter because ISIS still qualifies as an affiliate of Al Qaeda for purposes of the authorization.”
Here’s more from the Times:
“Instead, the official said, in its earlier incarnation as Al Qaeda in Iraq, the group fought the United States until the withdrawal of American forces from Iraq after 2011, and the split did not alter its appetite for fighting the Iraqi government and the United States — including by beheading two American journalists last month.
“Moreover, the official said, Osama bin Laden made the group an official wing of Al Qaeda, and ISIS is trying to position itself as Bin Laden’s true heir. For those reasons, the official said, the administration contends that Congress could not have intended for an event like the leadership split to abrogate the authorization to act against ISIS.”
Congress has not been entirely mum. Both the House and Senate leadership have said they back the administration’s action. And before lawmakers left Washington, they approved Obama’s plan to train and arm moderate Syrian rebels.
They did not, however, approve funds for the airstrikes against the group that calls itself the Islamic State.
As NPR’s David Welna reported at the time, “What Congress essentially said was, ‘We’ll get to that later, after the November elections.’ ” He added that this ” ‘kick the can down the road’ funding strategy got buy-in from both sides of the aisle.”
“The longer that the hostilities with ISIS go on, the more widespread they become,” Steve Vladeck, a law professor at American University, told NPR’s Carrie Johnson, “the less this looks like scattershot incidents of self-defense and the more it looks like the kind of war-making that historically and constitutionally usually requires at least some buy-in from Congress.”