The Obama administration said Wednesday that it needed no new approval from Congress to launch an open-ended air war in both Syria and Iraq against the group known as ISIS because the campaign is covered by the existing authorization to use military force against the perpetrators of the Sept. 11, 2001, terrorist attacks. http://www.nytimes.com/2014/09/11/world/middleeast/white-house-invites-congress-to-approve-isis-strikes-but-says-it-isnt-necessary.html?ref=us
The administration had cited only the president’s constitutional powers as commander in chief as the basis for airstrikes against the Islamic State in Iraq and Syria. New rationale raised questions about the factual basis behind its assertion that the 2001 authorization to use military force, known as the A.U.M.F., covers ISIS.
While ISIS grew out of a branch of Al Qaeda that sprang up in Iraq after the American invasion there in 2003, the two groups fell out over the past year over strategy and control. Last February, the leader of the original Al Qaeda, Ayman al-Zawahri, excommunicated ISIS, declaring that it “is not a branch of the Al Qaeda group.”
“As I understand it, the A.U.M.F. covers Al Qaeda and its affiliates,” said Will McCants, a Middle East specialist at the Brookings Institution. “The Islamic State was an Al Qaeda affiliate, and it is not anymore. So technically, the A.U.M.F., as I understand it, would not cover the Islamic State.”
But Andrew M. Liepman, a senior policy analyst at the RAND Corporation and a former deputy director of the National Counterterrorism Center, said the issue was more complex.
“I think whether or not they are an official affiliate and whether or not they come under the A.U.M.F. are not precisely the same question,” he said. “They are organizations from the same swamp, and the A.U.M.F. is loose enough that people with a whole lot more legal knowledge than I have can make the judgment that they do come under the A.U.M.F. But that has no bearing to the question of whether they are an affiliate of Al Qaeda today, which I think is clearly not the case.”
Mr. Obama’s reliance on the existing authorization was discussed by senior administration officials in a background briefing with reporters on Wednesday afternoon. In his speech, he asserted that he had all the power he needed already, but invited Congress to grant specific approval for an ISIS campaign anyway.
“I have the authority to address the threat,” he said. “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.”
In a separate interview, a senior administration official argued that new approval was unnecessary as a legal matter because ISIS still qualifies as an affiliate of Al Qaeda for purposes of the authorization. The official said this conclusion was not based on any still-secret intelligence that the two groups had reconciled.
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.
Citing the 2001 authorization of force, rather than relying only on the president’s constitutional powers, sidestepped a potential thorny legal issue: The War Powers Resolution requires presidents to terminate deployments into hostilities after 60 days if they have not been authorized by Congress. If that clock started with Mr. Obama’s first notification to Congress of airstrikes, it would expire on Oct. 7. In 2011, the Obama administration went past the apparent 60-day limit in the
intervention in Libya, putting forth a theory that airstrikes — which put American forces at little risk — did not count as the sort of “hostilities” regulated by that law.
By rooting the ISIS campaign in the 2001 authorization, the administration avoids revisiting that theory, which has been criticized by many legal scholars and even disputed by some lawyers inside the administration.
Last year, Mr. Obama said in a speech that he wanted to work with Congress “to refine, and ultimately repeal, the A.U.M.F.’s mandate.”
Kate Martin, director of the Center for National Security Studies, which advocates civil liberties, called the president’s invocation of the authorization inconsistent with that speech. Contending that he could win a congressional approval vote, she said the outcome was “legally indefensible” and “could hardly be worse.”
But Walter Dellinger, a Clinton administration Justice Department official, noted that the authorization allows the president to determine who was involved in the Sept. 11 attacks, and maintained that Mr. Obama could legitimately “read the reference to 9/11 organizations to include all the evolving versions of radical jihadism.”
Jack Goldsmith, a Bush administration Justice Department official, said the argument was “very clever,” resolving the War Powers Resolution problem. But its larger significance, he said, is its signal of open-ended support for the war authorization.