The War Against ISIS is Unconstitutional

As I explained in a New York Times op-ed today, Captain Nathan Smith has gone to court for a declaratory judgment on the legality of President Obama’s undeclared war against the Islamic State. While I encourage readers of Lawfare to read the entire Complaint submitted by David H. Remes for Captain Smith (I served as a consultant), I thought it might be useful to adapt some extracts from the Complaint to highlight some key points.

1. The Administration claims that the Congressional Authorization passed immediately after September 11, 2001, provides a legal basis for its failure to gain the assent of Congress, as required by the War Powers Resolution. This claim directly contradicts Congress’ original understanding in enacting the 2001 Authorization.

In the immediate aftermath of 9/11, President Bush initially requested authority “to deter and preempt any future acts of terrorism or aggression against the United States.” (Emphasis added.) But Congress refused to grant such authority precisely because it wanted future Presidents to return to it for specific authorization of further military initiatives. As Senator McCain put it, “the question is how do you fashion the language so that we don’t have another “‘Tonkin Gulf Resolution.’” Associated Press, “Senate OKs $40 Billion in Aid, Use of Force” (Sept. 14, 2001).

To answer that question, Congress passed and the President signed a much more limited Authorization for Use of Military Force, directed at Al Qaeda, which “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001,” and at the Taliban, which “harbored” such organizations or persons. The 2001 AUMF’s purpose was “to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” (Emphasis added.) President Obama’s effort to invoke the 2001 AUMF to justify the war against ISIS effectively converts it into the open-ended resolution that Congress deliberately rejected.

2. The 2002 Iraq Authorization for Military Force (“2002 Iraq AUMF”) also does not allow the President to wage the war against ISIS in Iraq: the war that Congress authorized the President to wage in Iraq is over. The Resolution does not even purport to cover military actions in Syria. Indeed, on July 25, 2014, the Administration declared to Congress that, “[w]ith American combat troops having completed their withdrawal from Iraq on December 18, 2011, the Iraq AUMF is no longer used for any U.S. government activities.” Letter from Susan Rice, National Security Advisor, to Congress, July 25, 2014.

Yet in the following months, the Administration proceeded to invoke this Authorization to justify its war against ISIS, despite the fact that the 2002 AUMF explicitly provided that it did not “supersede[] any requirement of the War Powers Resolution.”

3. The Obama Administration has explicitly recognized the constitutionality of the War Powers Resolution. Yet the President failed to publish an opinion from the Office of Legal Counsel or the White House Counsel explaining why his military actions past the ninety-day WPR deadline was legal.

Indeed, the White House has not even acknowledged that the OLC or the White House Counsel – the institutional arbiters of executive legality – were asked to prepare an opinion on this crucial issue. If the President has indeed failed to request their advice, this would represent a sharp break with past practice. It also would bespeak a strikingly cavalier disregard of the president’s duty to “take care that the law be faithfully executed.”

It is far more likely that the President sought an opinion but found the reasoning of the OLC or the White House Counsel so unpersuasive that its publication would have discredited his military campaign. In any event, the White House’s failure to publish a serious legal justification for the war opened a vacuum which the Administration has sought to fill with ad hoc and ever-shifting legal justifications. This lawlessness has made it impossible for Captain Smith to determine whether his present mission is inconsistent with his oath to “support and defend the Constitution of the United States,” thus requiring him to seek an independent determination of this matter from the Court.

4. The complaint requests that the court issue a declaratory judgment stating that the war against ISIS in Syria and Iraq violates the War Powers Resolution because the Congress has not declared war or given the President specific statutory authorization to fight the war, and violates the Take Care clause, and that if Congress does not declare war or give the President specific statutory authorization within sixty days of the judgment, the War Powers Resolution will require the disengagement, within thirty days, of all United States armed forces from the war against ISIS in Iraq and Syria.