AUMF: Legislative Reaffirmation

The Obama Administration’s Legal Justification for Strikes Against the Islamic State In Syria

By Jack Goldsmith
Tuesday, September 23, 2014, 3:38 PM

Based on comments from senior Obama administration officials who spoke on “the condition of anonymity,” Charlie Savage reports the Obama administration’s legal theory for the use of force against the Islamic State.

Savage says that the domestic legal justification is both the 2001 and the 2002 AUMFs:

Administration officials have said that as a matter of domestic law, they believe the United States has statutory authority to attack the Islamic State under Congress’s 2001 authorization to fight Al Qaeda. They also believe that Congress’s 2002 authorization of the Iraq war could provide an alternative source of such authority. The United States has been bombing Islamic State forces in Iraq since August.

Both congressional authorizations provide legal authority for the strikes in Syria, too, the officials contended, because of the Islamic State’s history of ties to Al Qaeda — notwithstanding the fact that the two groups recently split. And, they said, the 2002 Iraq war authorization can be read in part as promising to help foster a stable, democratic government in Iraq, which would include defending it from terrorist attacks.

The administration also appears to rely on Article II.  In today’s WPR letter to Congress, the President states:

I have directed these actions, which are in the national security and foreign policy interests of the United States, pursuant to my constitutional and statutory authority as Commander in Chief (including the authority to carry out Public Law 107-40 [2001 AUMF] and Public Law 107-243) [2002 AUMF] and as Chief Executive, as well as my constitutional and statutory authority to conduct the foreign relations of the United States.

In addition, Savage reports that the international law justification is the self-defense of Iraq, plus, secondarily, the self-defense of U.S. personnel in Iraq:

Senior Obama administration officials said on Tuesday that the airstrikes against the Islamic State — carried out in Syria without seeking the permission of the Syrian government or the United Nations Security Council — were legal because they were done in defense of Iraq. . . .

[T]he senior administration officials said on Tuesday that Iraq had a valid right of self-defense against the Islamic State — also known as ISIS or ISIL — because the militant group was attacking Iraq from its havens in Syria, and the Syrian government had proved unable or unwilling to suppress that threat. Iraq asked the United States for assistance in defending itself, making the strikes legal, the officials said. . . .

The United States is also asserting a right to defend its own personnel in Iraq from the Islamic State. The officials said this should be understood as supplementary authority to helping Iraq defend itself directly.

Quick analysis, more later: The President is on pretty strong legal ground under both domestic and international law.  I think the 2001 AUMF argument is weak, but the combination of the three domestic authorities (2001 AUMF, 2002 AUMF, and Article II) is an adequate legal foundation for the strikes.  However, for reasons I have argued at length, and that the President articulated in his speech on August 31, 2013, it would have been politically wise and constitutionally prudent for him to force Congress to vote on and authorize this dramatic expansion of the "war on terrorism."