As you likely know, last week
President Obama authorized military action in Iraq–“targeted airstrikes to protect our American personnel”
and humanitarian aid to the internally displaced Yazidis and Christians that
are facing death at the hands of the extremist group calling itself the Islamic
State. According to President Obama,
America should not intervene every time the world faces a crisis. Yet we are justified in our current involvement
because: American civilians, diplomats, and facilities in Erbil were at risk;
innocent people were facing the “prospect of violence on a horrific scale”; the
Iraqi government asked for our help; and we have “the unique capabilities to
prevent a massacre.” I agree with
President Obama—we cannot turn a blind eye in this situation. This cannot
become another Rwanda.
Critics of the president’s
actions worry about the open-ended timetable of American military involvement
in Iraq. Senator Chris Murphy (D., Conn.) stated, “It is justifiable to sue military
strikes to protect U.S. personnel or to prevent potential genocidal attacks by
[the Islamic State], but I do not believe the American people will support a
longer-term military mission designed to tip the balance in Iraq’s civil
sectarian war. At the very least, if the President is contemplating action that
will take months, rather than days or weeks, to conclude, he needs
authorization from Congress.” But previous
congressional authorization arguably covers the President’s current actions,
and it draws no distinction based upon the length of the operation.
The Authorization for Use of
Military Force Against Iraq in 2002 allows for the President to use force “as
he determines to be necessary and appropriate in order to—(1) defend the national
security of the United States against the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council resolutions regarding
Iraq.” P.L. 107-243. The statute does not provide for automatic termination of
its use-of-force authorization. Presidents Bush and Obama both relied upon the
broad authority granted them by this law until the withdrawal of troops from
Iraq in December 2011. (For a detailed discussion of declarations of war and authorizations for the use of military force, see this paper from the Congressional Research Service.) At the time of the expiration of the United Nations mandate
for force in Iraq in the beginning of 2009, members of Congress had argued that
a new authorization of force was necessary to maintain a U.S. military presence
in Iraq. But the Obama administration
did not seek a renewed authorization of force, and efforts to repeal P.L.
107-243 failed. So troops remained in Iraq under a U.S.-Iraq agreement until
the end of 2011.
Because the Obama Administration
relied upon P.L. 107-243 from 2009 through 2011, and the statute does not
automatically terminate, it arguably still applies. That means that if the president finds that
Iraq poses a threat to the national security of the United States, Congress has
authorized him to use whatever force he deems necessary and appropriate. The
statute does not call for renewed authorization if the engagement lasts for
months rather than days or weeks. So
Senator Murphy’s proclamation is misguided. President Obama need not seek congressional approval as the current military campaign in Iraq progresses. (Of course, President Obama could seek approval anyway, for political reasons. But he's unlikely to do so, since his legacy includes ending the war in Iraq.)
Have prior authorizations expressly terminated (e.g., by providing the President one year or by providing the President authorization to act until the occurrence of some event)? I think Murphy can at least make a colorable argument that the authorization ended in 2011, and, given the War Powers Resolution—the Constitutionality of which, I suppose, is not assured although it has been used for many years—the President must obtain a formal declaration of war or authorization if troops will stay in Iraq for longer than two months. I do agree, however, that the President’s position that he needs no new authorization to act probably wins the day.
ReplyDeleteAt some point, I would think (and hope) that an open-ended authorization to use military force would be considered an un-Constitutional delegation of Congress’ power.
mJ,
ReplyDeleteSome authorizations have expressly terminated, while others have not. For example, in 1964, Congress passed the Gulf of Tonkin resolution to "promote the
maintenance of international peace and security in southeast Asia." The resolution stated that it would expire whenever the President determined that the “peace and security of the area is reasonably assured” or if Congress chose to terminate it earlier by concurrent resolution. Congress repealed the resolution in 1971, thus ending the Vietnam War.
In contrast, Congress authorized the use of military force for the suppression of piracy in 1819. Under that law, the President could take action as he deemed necessary to protect U.S. merchant ships. That authorization had no termination provision, and it remains good law to this day.
I agree that Murphy could make the argument that the President's actions in 2011--withdrawing all of the troops and declaring the Iraq War over--ended the authorization given in 2003. But President Obama, if pushed, could argue that this statute is more similar to the piracy statute (since it contains no provision for its end), and under it he is entitled to use force if he perceives Iraq to be a continuing threat.
A note about open-ended authorizations to use military force: As far as I can tell, a statute passed on May 28, 1798 that authorizes the President to seize French vessels "found hovering on the coasts of the United States" is still in effect. So there's that.