Is the President Authorized to Attack ISIL?

Is the President Authorized to Attack ISIL?


Authorization for the president to employ force is currently (and has been) a significant constitutional and political issue, especially since the last formal declaration of war was made more than 65 years ago, despite numerous wars since the attack on Pearl Harbor. Virtually all current MOAA members who have fought for the U.S. without a Declaration of War or under ambiguous legislation will find Ken Gude's Understanding Authorizations for the Use of Military Force interesting, informative, and essential.

Gude, a well-known scholar who often has been published on national security matters, is a senior fellow at the Center for American Progress (CAP) - a relatively young (founded in 2003), left-center advocacy think tank. CAP's budget is approximately $25 million from a variety of sources (not entirely listed by the organization, but not unlike most think tanks). CAP's founder (who currently chairs its board) is John Podesta, White House chief of staff during President Bill Clinton's second term. The organization has many former government legislators and bureaucrats on its roster, and several CAP Fellows have been chosen by President Barack Obama for key positions in his administration. However, Understanding Authorizations for the Use of Military Force could have been written by a fellow at a center or center-right think tank.

Gude begins by asking if President Barack Obama as commander in chief has sufficient authority to attack the Islamic State of Iraq and the Levant (ISIL, also referred to as ISIS) without receiving say-so from Congress to strike this specific adversary. Gude doesn't think President Obama has this, and argues it would be in the president's and the country's interest to ask for formal legislation, despite support for military action without further authorization from some Democrats and some Republicans in the Congress. Gude writes, “The best path forward is for President Obama and Congress to work together on a new authorization for the campaign against ISIS.”

Gude begins with an explanation of the legal authority for any president to act militarily against any opponent. “The Constitution,” he states, “divides the power to declare war and the power to conduct war between the legislative and executive branches.” He explains the founders' concern for breaking with “European traditions,” and checking “reckless military adventurism” by monarchs. “Article I of the Constitution invests Congress with the authority to declare war and to raise and maintain military forces. Article II of the Constitution establishes the president as commander in chief of the U.S. military and gives that office the authority to lead American military forces and prosecute armed conflicts.” The founders “recognized” the “collective decision making during war,” as had been “experienced during the American Revolution, was ineffective” and giving the president command might ensure unity of command.

Declarations of War are out of fashion, as certainly all MOAA members know, and even in the beginnings of the country when the founders were heavily engaged in the U.S. government, presidents used force without any declaration, and at times with no legislation from Congress. After the Korean War (fought essentially without a declaration or legislative authorization), presidents have relied on congressional resolutions - for example, the Tonkin Gulf Resolution which Presidents Lyndon Johnson and Richard Nixon stretched for more than a decade. Presidents George H.W. Bush and George W. Bush acted similarly for Gulf Wars I and II.

Gude acknowledges President Obama believes the Authorization for Use of Military Force (AUMF) passed under the George W. Bush administration (and signed by him 13 years ago) “granted the President authority to use all 'necessary and appropriate force against those whom he determined planned, authorized, committed or aided' the September 11th attacks, or who harbored said persons or groups.” Gude, however, believes the AUMF is insufficient and new authority legislation is demanded for President Obama.

The author, furthermore, is specific about the limitations the new legislation requires: “President Obama should seek an authorization for the use of military force, or AUMF, that is explicitly and exclusively directed at ISIS, prohibits the large-scale deployment of U.S. ground combat troops, and includes both a geographic limitation and a resolution clause based on agreed criteria for ending the military phase of the fight against ISIS. This will set up a rational and durable framework for fighting terrorism.”