It is now clear that the President does not think he needs additional authorization from Congress to strike against ISIL in Iraq, Syria, or wherever.
My Administration has also secured bipartisan support for this approach here at home. I have the authority to address the threat from ISIL. 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.
The only possible source of this authority was the 2001 AUMF against Al Qaeda. The problem with this, as explained by Ben Wittes, is that the AUMF is limited to “associated force[s]” of Al Qaeda. Al Qaeda publicly expelled ISIS! There’s not even a close argument here textually. This is even worse than Harold Koh’s strained interpretation that there were no “hostilities” in Libya, and that notice was not needed prior to the swap of Bergdahl. The stunning disregard for the written law continues to astonish me.
This evening, while driving in a rental car with Satellite radio, I flipped between the different cable news networks–something I seldom do. Somewhat shockingly, all of the talking heads agreed. On Fox News, Rand Paul and Ted Cruz insisted that Obama ask Congress for permission. On MSNBC Jim McDermott and other liberals insisted the President must come to Congress, or else he would be worse than Bush and Abu Ghrab, etc. On CNN, ditto. It seems that Congress would give the President authorization.And it isn’t even clear there would be the usual gridlock to block the vote. We’ll see what happens next.
Now if you’ll excuse me, I need to add another section to my article on executive power.
Update: Marty Lederman provides a statement from a senior Administration official (emphasis in original):
The 2001 AUMF authorizes the use of “all necessary and appropriate force against those nations, organizations, or persons” responsible for 9/11 and those who “harbored such organizations or persons.” The Administration has interpreted the 2001 AUMF to authorize the use of force against AQ, the Taliban, and associated forces. Based on ISIL’s longstanding relationship with al-Qa’ida (AQ) and Usama bin Laden; its long history of conducting, and continued desire to conduct, attacks against U.S. persons and interests, the extensive history of U.S. combat operations against ISIL dating back to the time the group first affiliated with AQ in 2004; and ISIL’s position – supported by some individual members and factions of AQ-aligned groups – that it is the true inheritor of Usama bin Laden’s legacy, the President may rely on the 2001 AUMF as statutory authority for the use of force against ISIL, notwithstanding the recent public split between AQ’s senior leadership and ISIL.
Did ISIS inherit bin Laden’s legacy fee simple or subject to condition subsequent? Sorry, I don’t mean to make light of this, but this explanation really makes hash of a broad limitation imposed by the AUMF.
Update: Steve Vladeck makes a sharp point about the recognition power–it is up to the President to decide what Al Qaeda is, in the same sense that it is up to the President to decide what the capital of Israel is (Zivotofsky).
The common sense and practical problems aside, whether this theory flies or not turns on both a factual question and a legal question: The factual question is whether this is actually true–that is, whether ISIL really is the true successor to 9/11-era al Qaeda, a question that depends upon a whole bunch of facts to which the public is not (yet) privy. And the legal question is who gets the final say in resolving this factual question. The AUMF, after all, authorizes force against organizations which the Presidentdetermines to be responsible for the 9/11 attacks (entirely because, when it was enacted, President Bush had not yet publicly acknowledged that al Qaeda and the Taliban were responsible). If the President asserts tomorrow that he has determined that, in fact, ISIL is the group that attacked us on September 11 (back when it was called “al Qaeda”), is that determination reviewable? I have a hard time seeing how–at least practically. In this regard, one might well draw an analogy to the President’s “recognition” power (which, coincidentally, is back before the Supreme Court this Term). After all, if Congress declares war against “Germany,” case law suggests that it’s the President who gets to decide exactly who and whatis “Germany.” Again, that’s not to endorse this argument; it’s just to stress that it’s a lot more nuanced than these initial reactions have suggested.
I find this argument plausible, but am still disappointed that the President would be willing to have such a sloppy definition of his own powers, that is devoid of reality–even if ISIS is performing the role that Al Qaeda played, it is not part of Al Qaeda. This would be like Congress authorizing war against Germany, because it was an evil superpower with ambitions to take over the world, and then the President determines that the Soviet Union stepped into that role. Sure, the President could say that Stalin or Kruschev inherited the legacy of Hitler. It would be a strained, bizarre argument, that would not be reviewable by a court. But that doesn’t mean it is consistent with a President trying to comply with the law, rather than aggrandizing his own powers in the absence of further congressional support.