War Powers

President Obama Is Right

By Benjamin Wittes
Thursday, October 23, 2014, 5:18 PM

President Obama is right.

He was right when he said, as a presidential candidate in 2007, that “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” And he was right that “military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action.”

He is thus right now to "welcome congressional support for [his] effort" against ISIS.

At the same time, Obama is also right that he has "the authority to address the threat from ISIL" without congressional involvement and that he "does not need a new authorization in order to continue to take action against ISIL."

Because President Obama, after all, is right that he "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."

He is also right, I should add, that Congress should get rid of that authority, the authority---that is, on which he is currently rightly relying.

President Obama, after all, is right that "this war, like all wars, must end" and he is thus right also to seek to engage "Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate." He is certainly right not to "sign laws designed to expand this mandate further"---despite also being right to welcome congressional involvement in authorizing the ISIL operation, authorization he is, of course, right to insist he does not need.

President Obama is also right that the 2002 Iraq AUMF authorizes the current campaign against ISIS.  He is also right to urge repeal of that resolution.

President Obama is right to close Guantanamo. He is right that "history will cast a harsh judgment on this aspect of our fight against terrorism and those of us who fail to end it." He is right that it is outrageous for Congress not to let him. He is right that Congress's actions could create separation of powers problems and impinge on his constitutional authorities.

He is also right not to say what he would do with all of the detainees at Guantanamo if Congress were to free his hand. And he is right to comply, as he largely has, with Congress's dictates, about whose constitutionality he is right to complain.

He is certainly right as well to float trial balloons about maybe not complying.

President Obama's administration is right to dub the new operation in Iraq "Operation Inherent Resolve."

In memory of Michael Kelly