Has Obama’s Expansion of War Powers Set a Dangerous Precedent?

Source: Saul Loeb/AFP/Getty Images

Source: Saul Loeb/AFP/Getty Images

Three days after the 9/11, Congress passed a piece of legislation known as the Authorization for the Use of Military Force, or AUMF. That document granted the president the authority to use all “necessary and appropriate force” against all those whom he determined “planned, authorized, committed or aided” the terrorist attacks, or who harbored those responsible. This measure, which essentially streamlined how America went to war, passed with overwhelming support from both the House of Representatives and the Senate. In the 13 years that separate that moment from the sixth year of Barack Obama’s presidency, U.S. troops have been withdrawn from Iraq, the White House has prepared for troops to leave Afghanistan, and the United States has become mired in another Middle Eastern conflict with ISIL. That so much has changed in the United States’ military involvement in the region, it may be surprising that one feature remains the same: The Authorization for the Use of Military Force is still a key document.

The Obama administration’s continued use of the AUMF as the basis for military action has prompted bipartisan criticism. And Republicans in particular have taken issue with how he has expanded the war powers of the president.

From Congress, the most condemning voice of the Obama administration’s handling military intervention has been that of Republican Senator Rand Paul of Kentucky, who believes that the continuation of the “War on Terror” — made possible by the extension of that authorization — is an overreach of presidential power. His problem is not with the fact that the Obama administration has chosen to use force against ISIL. The senator has explained in a number of speeches that he sees the terrorist group as “a clear and present danger to United States diplomatic facilities in the region.” But still, he argued in an opinion piece for the Daily Beast that U.S. military operations against ISIL are unconstitutional. It may seem that the difference is hardly worth the quibble. It could be argued that this is primarily a partisan issue, an opportunity for Paul to show his voter base his concern for a strict interpretation of the Constitution.

Ignoring the politics of Paul’s critique, the senator made a valid point, and the ways in which Obama has augmented the war powers of the presidency are worth examining. Jack Goldsmith, who led the Office of Legal Counsel for part of the George W. Bush administration, has argued that Obama — despite his rhetoric — has “dramatically expanded” the idea of when a president can use force without permission, a dangerous precedent for subsequent leaders. And while it may be easy to dismiss Paul’s opinion as that of a politician looking to capture the oval office for the Republican party, Goldsmith has “a pretty broad view of presidential power to use military force abroad without congressional authorization,” by his own admission.

While the dividing line between congressional and presidential powers has long been debated, and much of what the framers of the U.S. Constitution intended has become obscured, it is clear that the authors of the Constitution divided war powers between the president and Congress. No one questions that those men believed vesting in the president the unilateral authority to wage war was dangerous. Of course, since the beginning of United States history, presidents have used force to protect Americans abroad, and that is because James Madison had the wording of the congressional right to “declare war” changed from “make war,” giving the president power to defend the country in the case of an immediate threat. And for now, there is little disagreement in Washington that the president has the constitutional authority to repel an attack on the country or its residents without congressional approval in extreme circumstances. But when self-defense is not an issue and no treaty obligations need to be fulfilled, the words of Elbridge Gerry should be considered. During the Constitutional Convention, Gerry — a signer of the Declaration of Independence, an eventual congressman, and a proponent of the Bill of Rights — noted that he “never expected to hear in a republic a motion to empower the Executive alone to declare war.” And so future historians will “puzzle over how Barack Obama the prudent war-powers constitutionalist transformed into a matchless war-powers unilateralist,” Goldsmith wrote for Time. “And they will wonder why he claimed to “welcome congressional support” for his new military initiative against the Islamic State, but did not insist on it in order to ensure clear political and legal legitimacy for the tough battle that promised to consume his last two years in office and define his presidency.”

Past presidents — Bill Clinton and Ronald Reagan — were not opposed to taking military action without congressional authorization. So what makes Obama different? At the surface, his administration may not seem so different. But many political experts believe Obama has moved beyond the accepted loopholes, and done so while maintaining the facade of the reluctant warrior. A speech Goldsmith gave before the Hoover Institute in early November gave a close analysis of three specific ways that Obama — who was a constitutional lawyer — has expanded the war power beyond any measure taken by previous administrations, including that of Bush.

1. Constitutional Power

Article II, Section 2 of the Constitution states, “The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States.” That vague line is generally believed to be the text that gives the president the power to repel an impending attack on America. Goldsmith argued that Obama articulated an unmatched view of that power on three separate occasions throughout his presidency: When bombing Libya in 2011, when considering the bombing of Syria in 2013, and when saving the Yazidis from ISIL in Iraq this August.

  • Libya: In 2011, the Department of Justice stated no prior congressional approval was needed for participating in NATO airstrikes against Gaddafi’s regime because the limited military operations expected “were not a ‘war’ for constitutional purposes.” The Obama administration’s official rationale for the Libyan airstrikes — which effected a regime change — did not employ the “self-defense” argument, which represented a key shift from typical use of Article II powers. Instead, the president cited his Article II authority to justify waging war in Libya for purely humanitarian reasons. In announcing the intervention in Libya, Obama told Congress that he was acting “pursuant to my constitutional authority to conduct U.S. foreign relations and as commander in chief and chief executive.”

There were also mitigating circumstances; the United Nations Security Council authorized the use of force to protect Libyan civilians. There is also a slight precedent. The Clinton administration joined other NATO countries in bombing Serbia in the late 1990s to end the war in Bosnia and stop the slaughter of civilians in Kosovo. Yet, even though Clinton had both congressional and public support, the action was still seen as highly controversial. Today, Clinton’s actions in Kosovo represents the “outer bound to date of presidential unilateralism.” Now Libya “stands as an important precedent that says the United States can engage in humanitarian intervention even if there’s no explicit self-defense rationale,” Goldsmith said. And while some measure of precedent existed, Obama’s seeming willingness “to decouple the use of force in such a clear way from self-defense” was a massive change, as Goldsmith stated.

  • Syria: Then in 2013, when contemplating dropping bombs on the Assad regime for violating the chemical weapons treaty, the administration claimed military action was needed to “project regional stability and enforce international norms,” a rationale that applies to almost every case for unilateral intervention, according to Goldsmith. “There won’t ever be an occasion when the president has an inkling to use force when those criteria aren’t satisfied,” he stated, which is “basically saying” that “the president can use force… from the air just about whenever he thinks it needs to.” Never were U.S. personal or property at risk in Syria, and so no self-defense rationale existed, wrote Goldsmith in 2013. Nor was the integrity of a UN charter at stake. Since the Truman administration came to the defense of South Korea in 1950, upholding a resolution or treaty has been the predominant justification — excluding self-defense — invoked by the president to wage war.

Syria also showcased significant vacillations in the president’s view on the utility of asking Congress for the authority to wage war. “History has shown us time and again … that military action is most successful when it is authorized and supported by the Legislative branch,” candidate Barack Obama told the Boston Globe in 2007. “It is always preferable to have the informed consent of Congress prior to any military action.” That sentiment was not completely abandoned in 2013 when Obama announced, “I believe I have the authority to carry out this military action” against the Assad regime for the continued use of chemical weapons against its own people, “without specific congressional authorization.” Despite that assertion, he did acknowledge “that the country will be stronger … and our actions will be even more effective if the strike is authorized by Congress.”

At the time it was largely postulated that Obama planned to ask for the authority he believed he already had because public approval for the airstrikes was very low. At the last minute he gave several “rhetorically powerful” speeches devoted to the importance of Congress participating in such major decisions as the declaration of war, noted Goldsmith. But the Russian-brokered deal to destroy the chemical weapons ended his dithering.

2. War Powers Resolution

The United States has declared war five times, and four of the five declarations were made after hostilities began. But in 1973, in the aftermath of the Vietnam War, Congress passed a controversial statute limiting how long hostilities could continue without a declaration of war or an authorization. Legally, the president must cease “hostilities” after 60 days without congressional authorization. While the constitutionality of that law has been debated, most presidents try to comply, and the Obama administration has always insisted that the law is binding.

Yet, hostilities went on in Libya for much longer than that 60-day period. Obama “basically said that the seven-month war from the air, which decimated Libyan forces, which killed hundreds and hundreds of people, which removed a leader from power, didn’t count as ‘hostilities,’ and therefore the statute just wasn’t implicated,” Goldsmith stated. “By that logic, future presidents could order bombing raids for months, kill hundreds, and change regimes without ever going to Congress, so long as the war was waged from afar without ‘boots on the ground’.”

3. The Authorization for the Use of Military Force

This document authorized the president to invade Afghanistan and pursue the Al Qaeda operatives who orchestrated 9/11 and the Taliban rulers who sheltered and aided those terrorists.  U.S. officials have widely used the AUMF as justification for continuing U.S. military actions all over the world, applying the authorization to any group with previous associations to al Qaeda. Obama began his presidency calling for the repeal of the 2001 authorization, with his administration dwelling on how his predecessor used the document as “an excuse to kidnap hundreds of people — guilty and blameless people alike — and throw them into secret prisons where many were tortured,” noted the editorial board of The New York Times. Bush “used it as a pretext to open the Guantánamo Bay camp and to eavesdrop on Americans without bothering to obtain a warrant. He claimed it as justification for the invasion of Iraq, twisting intelligence to fabricate a connection between Saddam Hussein and the 9/11 attacks.”

In a key speech in May 2013 at the National Defense University, Obama expressed his intention to “engage Congress about the existing Authorization to Use Military Force, or AUMF, to determine how we can continue to fight terrorism without keeping America on a perpetual wartime footing.” But this year that desire was eclipsed by the pressing need to find a strategy to handle the rise of ISIL. According to Goldsmith, the president — who had believed the AUMF should be construed narrowly — interpreted that authorization to say that in 2001 Congress gave him the power to use force against the Islamic State in 2013, even though the organization did not exist in 2001. The predecessor to the group did exist, but even so, Goldsmith argued there is no way it could be seen as a co-belligerent. Still, the Obama administration has suggested that AUMF covers any group with a thread of connection to al Qaeda. “If a past nexus is now all that is required, the door may be opened to applying the AUMF to any situation in which members of some new entity have substantial prior ties to AQ or an AQ associated force,” wrote Robert Chesney for a Lawfare piece. Given the sprawling social network that undergirds the larger salafist jihadi movement, and the constant froth of new groups and entities that movement produces (often building from the remains of earlier groups and entities), this is a somewhat daunting prospect.”

Obama has again committed to repealing the AUMF and pledged to ask Congress for new war power authorizations to fight ISIL, a conflict that has already cost more than half a million dollars and brought more than 1,400 troops to Iraq. A new authorization is what Senator Rand Paul wants, but that will not reverse the vast expansion of war powers undertaken by the Obama administration. Sure, the allocation of war powers has changed over the past two hundred plus years of American history. Yet Goldsmith does not see Obama’s actions as part of the evolutionary process of the powers to wage war. He sees a president whose legacy will serve as a dangerous precedent. Obama pledged to end large-footprint wars of his predecessors and replace them with “war from a distance,” which include the use of drone strikes and cyber war. His actions in Libya carved out a legal space where airstrikes — the primary tool of “war from a distance” — do not constitute hostilities, Goldsmith argued.

In Goldsmith’s opinion, Obama has been pushed to expand his war powers because of his failures as a leader, noting the president has no interest in expending political capital necessary to debate his position to the point Congress will offer its support. Other presidents have faced a “recalcitrant” Congress like Eisenhower and the first Bush, he concluded, but they did not use that as an excuse. “The Constitution is a permanent challenge to presidential leadership,” wrote presidential scholar Arthur Schlesinger Jr. in his book, The Imperial Presidency. “It is a test of a President’s capacity to persuade Congress and the people that his policies make sense.”

 

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