As U.S. military operations against the Islamic State approach the one-year mark, the White House has failed to give Congress and the public a comprehensive written analysis setting out the legal powers that President Barack Obama is using to put U.S. personnel in harm’s way in Iraq and Syria.
The absence of an in-depth legal rationale takes on greater urgency with Obama’s decision this week to dispatch up to an additional 450 U.S. military trainers and other personnel to Iraq and to establish a second training site for Iraqi forces in war-ravaged Anbar province, most of which is under Islamic State control.
The only document the White House has provided to a few key lawmakers comprises four pages of what are essentially talking points, described by those who’ve read them as shallow and based on disputed assertions of presidential authority.
“It’s very thin,” Rep. Adam Schiff of California, the senior Democrat on the House Intelligence Committee, said of the document.
Schiff contended that without a new congressional resolution that specifically confirms the president’s power to intervene militarily against the Islamic State in Iraq and Syria, Obama is overseeing a dangerous expansion of presidential war-making powers.
“This is opening the door to future presidents making war without any reliance on congressional authorization,” said Schiff. He added that Congress also is to blame because it has failed to pass a new resolution expressly authorizing the deployment of U.S. military trainers, advisers and security units to Iraq and the use of U.S.-led airstrikes that have been staged against the Islamic State in Iraq since August and in Syria since September.
The absence of a public legal analysis – replete with court rulings and historical precedents – constrains public debate on the growing U.S. military role in the tumultuous Middle East nearly four years after Obama pulled U.S. combat troops out of Iraq, and has hampered congressional efforts to forge a new resolution on the Islamic State, also known as ISIL or ISIS.
“The burden is on the administration to come forward and ensure that its legal basis is justified and appropriate,” said Raha Wala, senior counsel for Human Rights First, a nonprofit New York-based advocacy group. “In any democracy, we can’t operate with secret law.”
More significantly, by not setting out its legal case in public documents, Obama may be trying to preserve his flexibility to authorize new operations against the Islamic State or other extremist groups elsewhere, unfettered by constraints that could be imposed by Congress.
In his secretive and expansive view of presidential powers, some experts see Obama following the lead of his predecessor, George W. Bush.
The administration’s only public articulation of its legal position has come in speeches, letters and the four-page document provided to key lawmakers – titled “Legal Basis for U.S. Military Operations in Syria” – that was drafted around the same time of the first U.S. airstrikes on the Islamic State in Syria. By contrast, a secret 2010 Justice Department opinion – released by the administration under court order – that authorized the targeted killing of American leaders of al Qaida runs 31 pages and cites extensive examples of domestic and international laws and U.S. court decisions in setting down a comprehensive framework for such operations.
When it comes to Syria and Iraq, the administration “has clearly articulated our legal authorities in numerous public venues including White House press briefings, congressional testimonies and other forums,” said a White House official who is knowledgeable of the issue but wasn’t authorized to speak publicly as a matter of practice.
The president’s legal team “engaged with lawyers from key departments and agencies in discussions about the underlying authorities for those actions,” said the White House official.
“It defies common sense to believe that the president has taken this type of action based on a four-page set of bullet points and not a full legal analysis by either the Office of Legal Counsel or the White House counsel,” said Chris Anders, senior legislative counsel for the American Civil Liberties Union. “This is too important of a decision to be made without that kind of legal advice.”
Initially, the administration argued that Obama could authorize military operations under Article Two of the Constitution, which designates him as the commander in chief of the U.S. armed forces.
But under fire from Congress, the administration adopted as its main arguments for Obama’s authority the 2001 congressional resolution that authorized the use of force against al Qaida and “associated forces” and the 2002 resolution approving the invasion of Iraq and the overthrow of the late dictator Saddam Hussein.
The 2001 resolution “authorized the use of force against ISIL beginning in at least 2004, when ISIL, then known as al Qaida in Iraq, pledged its allegiance to (the late Osama) bin Laden,” says the four-page document. “The recent split between ISIL and al Qaida’s current leadership does not remove ISIL from coverage.”
“Although the threat posed by Saddam Hussein’s regime in Iraq is the focus of the 2002 (resolution), the statute . . . has always been understood to authorize the use of force for additional purposes,” it says.
Those administration assertions, however, only generated more heat.
Critics dismissed the White House’s assertion that the Islamic State is an appendage of al Qaida, pointing to the 2014 rupture between the two extremist organizations and the ongoing battles they’re fighting in Syria. Moreover, they say, the Islamic State didn’t exist in 2001.
Critics also reject the administration’s reliance on the 2002 resolution because Saddam is no longer in power and the situation in Iraq is radically different.
“There’s no question in my mind that the ongoing war against ISIL goes well beyond the existing 2001 and 2002 (resolutions),” said Sen. Tim Kaine, D-Va., who this week introduced with Sen. Jeff Flake, R-Ariz., draft legislation that would authorize the U.S. campaign against the Islamic State.
The White House and the Justice Department have refused to even acknowledge if the president has sought a written legal analysis underpinning his authority. The White House referred McClatchy to the Justice Department, which declined to comment.
The American Civil Liberties Union filed a Freedom of Information Act request with the administration in September seeking any documents related to a legal analysis. So far, no materials have been turned over.
Traditionally, presidents have asked the Justice Department’s elite – but little known – Office of Legal Counsel to provide the authoritative legal advice underpinning their power to authorize military operations in the absence of congressional authorization. Many of those opinions were eventually shared with Congress and made public.
What has emerged with Iraq and Syria instead is an ad hoc legal basis that has shifted with each new development as the Islamic State has continued its onslaught, undeterred by U.S.-led airstrikes that also have struck an al Qaida cell in civil war-wracked Syria dubbed the Khorasan Group.
“Without an ISIL-specific authorization, there is grave doubt about the legal basis for this war and the precedent it might set for future military action without congressional approval,” Kaine said. “But just as important as the legal justification is how we show the more than 3,000 U.S. service members already serving in the fight against ISIL that we support this mission.”
The four-page White House document makes sweeping assertions about presidential authority without supporting legal precedent or in-depth analysis. The claims barely scratch the surface of a long-running conflict between Congress and presidents over war-fighting powers.
The document also glosses over the president’s bald assertion that he does not need congressional approval to order military action, citing only his “constitutional authority to conduct U.S. foreign relations.”
“The military operations taken by the United States against the Islamic State of Iraq and the Levant (ISIL) and Khorasan Group in Syria are consistent with domestic and international law,” the document states.
Some experts call Obama’s shift from his initial claim of constitutional authority to his citation of the 2001 and 2002 resolutions a gimmick to avoid starting the clock of the War Powers Act. The act requires the president to end military operations within 90 days in the absence of congressional authorization or a declaration of war.
Congress, however, has tried unsuccessfully since early this year to reach a consensus on a new resolution approving U.S. military operations specifically against the Islamic State, divided over how much authority to give Obama. A resolution proposed by Obama encountered opposition from Democrats and Republicans.
“Many Democrats want to constrain current and future administrations, many Republicans question the administration’s lack of a coherent strategy, and many on both sides believe the White House already has legal authority to combat ISIS,” said Senate Foreign Relations Committee Chairman Bob Corker, R-Tenn., who has led efforts to forge new legislation.
“The challenge remains that any new AUMF (authorization for the use of military force) must create enough bipartisan consensus to become law and show that our country is united over the need to confront ISIS,” Corker said.
The administration’s secrecy and assertions of presidential power are reminiscent of the Bush administration’s conduct after the Sept. 11, 2001, attacks.
At that time, the Office of Legal Counsel argued in internal memos that Bush possessed “constitutional authority for ordering the use of force against Iraq to protect our national interests.”
The memos remained secret until January 2009, when Bush declassified them as Obama was preparing to take office. Obama would later declassify other Bush-era legal memos while calling for a new era of transparency.
“My administration is committed to creating an unprecedented level of openness in government,” said Obama at the time, pledging “openness will strengthen our democracy.”