Congress abdicates its constitutional duty to debate and authorize an AUMF for ISIS

Before the terrorist attack in Paris on Friday evening, there was a little noticed event that received very little discussion in the “lamestream” media.

On November 6, a bipartisan group of 35 House Representatives sent a letter (.pdf) to the new Speaker Paul Ryan (R-WI), calling on him to bring an authorization for the use of military force (AUMF) against ISIS to the House floor for a debate and a vote.

The letter was spearheaded by Reps. Jim McGovern (D-MA), Tom Cole, (R-OK), Barbara Lee (D-CA), Walter Jones (R-NC), Peter Welch (D-VT), and John Lewis (D-GA). This letter represents the latest of many efforts by a vocal minority in Congress that wants Congress to fulfill its constitutional duty to debate and vote on war.

We do not share the same policy prescriptions for U.S. military engagement in the region, but we do share the belief that it is past time for the Congress to fulfil its obligations under the Constitution and vote on an AUMF that clearly delineates the authority and limits, if any, on U.S. military engagement in Iraq, Syria and the surrounding region. U.S. bombing campaigns have been going on for more than a year, and U.S. troops on the ground have been increasingly close to or drawn into combat operations, including the recent death in combat of a special operations officer in Iraq.

Consistent with your pledge to return to regular order, we urge you to direct the committees of jurisdiction to draft and report out an AUMF as soon as possible. We do not believe in the illusion of a consensus authorization, something that happens only rarely. We do believe the Congress can no longer ask our brave service men and women to continue to serve in harm’s way while we fail in carrying out our constitutional responsibly in the area of war and peace.

As long as the House fails to assert its constitutional prerogatives and authority, the Administration may continue to expand the mission and level of engagement of U.S. Armed Forces throughout the region. We strongly urge you, Mr. Speaker, to bring an AUMF to the floor of the House as quickly as possible.

I have been posting for months about the effort by Sen. Tim Kaine (D-VA) and Sen. Jeff Falke (R-AZ) to force the Senate to debate an AUMF against ISIS in Iraq and Syria and to bring an AUMF to the floor of the Senate for a vote. When will Congress act on an AUMF for ISIS in Iraq and Syria:

President Obama has been conducting military operations against the Islamist terrorist group ISIS in Iraq and Syria under the War Powers Resolution of 1973 since August of 2014. He long ago exceed the 60 days for committing armed forces to military action, and a further 30 day withdrawal period, without an authorization for use of military force or a declaration of war from Congress.

The administration and Congressional leaders additionally assert authority under the 2001 Authorization for Use of Military Force Against Terrorists, authorizing the use of United States Armed Forces against those responsible for the attacks on September 11, 2001 (hint: not ISIS), and the 2002 AUMF against Iraq aka the Iraq Resolution to “strictly enforce through the U.N. Security Council all relevant Security Council resolutions regarding Iraq” (also not applicable to ISIS).

Congress left town in August 2014 to campaign for the midterm elections without taking up an Authorization for Use of Military Force (AUMF). Congress refused to act on its own during the lame duck session after the election.

Obama Sent Congress a Draft War Authorization in February of 2015. Congress has failed to act on it. Congress is seeking to avoid taking any vote on sending American troops back into Iraq and to Syria, even though American troops already are actively engaged in Iraq, and as of yesterday, in Syria.

Congress has entirely abdicated its war making powers under Article 1, Section 8 of the U.S. Constitution. Let’s be clear, there is no congressional authorization for the military actions the U.S. is taking in Iraq and Syria. None.

Later posts, Senate avoids debating an AUMF to fight ISIS in Iraq and Syria, and Congress continues to avoid debating an AUMF to fight ISIS in Iraq and Syria:

[GOP leaders] cannot bring themselves to perform their constitutional duty to debate and to actually authorize the current U.S. military engagements in Iraq and Syria against ISIS (and the Assad regime).

As I have explained previously, this is calculated: Tea-Publicans want the precedent being established by fighting a war without congressional authorization in violation of the Constitution and the War Powers Resolution of 1973 so that the next president — whom they believe will be a Tea-Publican — can take this country to war without asking for congressional approval. Dick Cheney’s Unitary Executive Theory of the Imperial Presidency will be back with a vengeance.

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[T] he U.S. has been militarily engaged in Syria against ISIS since September of 2014. Obama orders U.S. airstrikes in Syria against Islamic State. President Obama formally requested an AUMF against ISIS in February of this year. Letter from the President — Authorization for the Use of Force of United States Armed Forces in connection with the Islamic State of Iraq and the Levant. Congress has has done nothing. This is completely unacceptable.

POLITICO reported last week, before the terrorist attacks in Beirut and Paris, New war authorization left for dead:

[Senator] Bob Corker is coming to the conclusion that a new AUMF is a nonstarter after the House and Senate have shown no interest in a divisive war debate.

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Absent a new push from the White House, it would be nearly impossible for Corker to reconcile the two parties’ competing hopes for a new war authorization. Democrats want to offer restrictions on any new AUMF beyond Obama’s current authorities, while Republicans don’t want to do anything to tie the administration’s hands. That’s led Corker and ranking member Ben Cardin (D-MD) to the same conclusion: Nothing, it seems, can pass the Senate.

“To bring up something that highlights a divide over that and maybe makes it appear as if the nation is divided over [ISIL]?” Corker said in an interview on Tuesday. “It doesn’t make a lot of sense to me.”

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It’s not that Congress hasn’t tried. In the summer of 2013, Obama hauled the Senate back into session to authorize war against Syria over chemical weapons, a push that ultimately stalled. Last December, Foreign Relations Democrats jammed an AUMF through the committee, but the move was too late to secure a floor vote by the full Senate.

[President Obama formally requested an AUMF against ISIS in February of this year. Letter from the President — Authorization for the Use of Force of United States Armed Forces in connection with the Islamic State of Iraq and the Levant.]

And this year, Sens. Tim Kaine (D-Va.) and Jeff Flake (R-Ariz.) introduced their own draft proposal, hoping to jump-start a debate they maintain should have started 15 months ago when the first American bombs were dropped on ISIL.

Even on Tuesday at an unrelated committee meeting, Kaine circulated a letter from 35 House members asking Speaker Paul Ryan to take up a military authorization. Afterward, Kaine said he’s going to keep pressing the case, despite the pessimistic outlook from committee leadership.

“I get it, members of Congress are afraid to cast a vote on war,” Kaine said. “If you want to be real cold about it, if Congress doesn’t support it, then we shouldn’t be forcing people to risk their lives.”

But is it worth the tough slog through an AUMF if the Senate has the debate but still ends up hopelessly deadlocked?

“Yes. It’s our duty, frankly, to do it,” Flake said.

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The lonely bipartisan duo of Flake and Kaine have not succeeded in getting action, but they say there’s a silver lining: During committee meetings they are no longer the only ones bringing up congressional inaction on a war against ISIL that administration officials say appears likely to continue indefinitely. Kaine said Democratic Sens. Chris Coons of Delaware and Chris Murphy of Connecticut, and GOP Sen. Jim Risch of Idaho have begun more forcefully expressing their displeasure at the inaction.

But members of the committee said in interviews Tuesday that to force the panel into a risky, uncertain vote on an AUMF, Obama needs to communicate to them that he needs it and prove to them that without a new authorization, he cannot effectively beat ISIL. As Corker did on Tuesday, lawmakers keep asking administration officials and keep getting the same answer: It would be nice if Congress authorized the war against ISIL, but it isn’t necessary.

“If the administration said they were being hampered in carrying out their strategies because of the lack of authorization from Congress, then I think it would be absolutely essential for Congress to take up the administration’s request,” Cardin said. “But that’s not what they’re telling us.”

Kaine and Flake insist they will continue to raise the issue publicly and privately, but as Washington crawls toward the election, leadership will become more risk averse. Realistically, a new president is probably the only way to get Congress on task again when it comes to giving its blessing to the latest American war in the Middle East. (Wrong!)

“I would never commit to vote for an Authorization of the Use of Military Force until I’m convinced the commander-in-chief is committed to the goal. I wouldn’t do it half-hearted,” said Sen. Ron Johnson (R-WI).

In fact, the best chance for a re-evaluation of the dismal prospects of an AUMF is directly linked to an increasingly complicated battlefield. Committee members are discussing different scenarios with the administration: What happens if the war turns toward Russians supporting Syrian President Bashar Assad or Assad’s soldiers turn on Americans?

The answer isn’t clear, and several members doubt current authorizations would cover such a scenario.

Since the Islamic State’s drive to gain and hold territory in Syria has suffered setbacks lately, it is now using terrorism to strike far beyond its borders. What was behind ISIS’s attack on Paris, according to experts. ISIS has claimed responsibility for terrorist bombings in Turkey in October, and in Beirut and Paris last week.

In the case of Turkey and France, they are members of the NATO Alliance and can invoke Article 5 for mutual defense by the alliance.Ilya Somin, Professor of Law at George Mason University writes, Using Article 5 of the North Atlantic Treaty to legalize the war against ISIS:

France gives the Obama administration an opportunity to legalize its previously unconstitutional war against ISIS. Up until now, the war has been illegal because the president lacks congressional authorization for it. Assuming (as is highly likely), that ISIS was indeed behind the attacks, the United States has a legal obligation to help defend France under Article 5 of the 1949 North Atlantic Treaty, which created the NATO alliance. Here is the relevant text:

The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.

France is a signatory of the North Atlantic treaty, and Friday’s brutal terrorist attack surely qualifies as an “armed attack against [France] in Europe.” Therefore, the US now has a legal obligation to consider the attack against France as an attack against the US itself, and to “assist” France with “such action as it deems necessary,” including “the use of armed force.”

Some scholars and jurists contend that it isn’t possible for a nation-state to be in a true state of war with a private terrorist organization. Even if this is correct, by this point ISIS qualifies as a state-like entity, having seized control of a large portions of Syria and Iraq. In any event, the NATO treaty applies to all “armed attacks” on the signatories in “in Europe or North America,” regardless of the qualify as a war or not. The NATO allies did in fact invoke Article 5 after the 9/11 attacks against the US, an incident with obvious similarities to the attack on France.

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Article 5 provides a much stronger justification for the war against ISIS than the previous extremely dubious rationalizations presented by the Obama administration. But it cannot retroactively legalize the President’s previous illegal actions, or the similarly unconstitutional war against Libya in 2011.

Citing Article 5 might not be an attractive option for the Obama administration, because it might be seen as an implicit admission that the war was previously illegal (as it in fact was). For this reason, they might well decide not to rely on it. But it is nonetheless the only sound legal justification for continuing the war against ISIS, unless and until the president gets a new authorization from Congress.

As I have previously explained, the president’s failure to get congressional authorization for the wars against ISIS and Libya is not just a purely legal problem. In addition to creating terrible precedents for the future, it also has made it more difficult to build the kind of political consensus needed to wage war effectively. Invoking our Article 5 obligations to a key NATO ally may not fully cure these problems. But it would at least be a valuable step in the right direction.

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UPDATE: International law scholar Julian Ku has put up a a critique of this post, arguing that Article 5 is not enough to justify US intervention against ISIS without additional congressional authorization (see the post).

Congress has completely abdicated its constitutional duty to debate and authorize an AUMF against ISIS in Iraq and Syria. The previous authorizations in 2001 against terrorism (A Qaeda) and 2002 (Iraq) do not authorize the current action in Iraq and Syria, and to terrorist attacks in Europe against NATO allies.

President Obama is relying on these earlier authorizations only because this Congress has refused to do its duty and to debate and to vote on a new AUMF. This is establishing a dangerous precedent for future presidents that cannot be allowed to stand under our Constitution.

Not a single member of Congress should be returned to office if they permit this to occur by abdicating their constitutional duty.