Asking whether Obama has the authority to make war on ISIS is the wrong question

"We the People" no longer are asked whether we want war

“We the People” no longer are asked whether we want war

Craig Miller

Juan Williams, writing for the Hill, had this to say about the application of the 2001/2002 AUMF (Authorization for Use of Military Force) to the Islamic State:

As my friend and Fox News Senior Judicial Analyst Judge Andrew Napolitano has noted, [using the AUMF] is ridiculous because ISIS did not exist in 2001 and 2002, so Congress could not have intended the AUMF to apply to the group by any stretch of the imagination.

How I wish he were right. One major deficiency in the press coverage of the war against the Islamic State (I think when you drop multi-million-dollar munitions on a group, you’re waging war against them, whether you declare it or not) is the lack of discussion about the problems with the law that may (or may not) authorize it. This is a political problem too. Democrats had been calling to repeal the act–until they had control of government.  Once in control of the branches of government that have the most influence on foreign policy they ignored the law–until they needed it.

Republicans, who drafted the original law in the aftermath of 9/11, now argue that the president needs Congressional authorization, but won’t actually ask him for it. Sorry guys and gals, you already gave him the authority; you sound a might disingenuous when you complain about him using it.

One major flaw of the AUMF is the section that defines who the U.S. can use lethal force against:

…the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.-[Language maintained in 2002 update]

Who from the Islamic State doesn’t fit this definition? Think of it this way.  Imagine Osama Bin Laden hadn’t been captured and killed by the U.S but instead lived and broke with Al Qaeda to join the Islamic State. Would the AUMF not apply to him or his new organization? Abu Bakr Al Baghdadi, the self-proclaimed caliph of the state, was in prison in Iraq for committing terrorist attacks in Iraq for Al Qaeda. That he’s not a member of Al Qaeda now–does that mean he can’t be targeted?  This interpretation of the language of the AUMF would make it easy for terrorists to avoid the use of force: change your organization’s name and perhaps you evade the charter of the AUMF.

The problem isn’t whether or not the AUMF allows the president to use lethal force–it does. The problem is that the AUMF gives the executive branch–meaning any president–too much authority in war making, allowing him (or her) to act without direct Congressional authorization or formal declarations of war.

What’s even more disconcerting is that this fundamental Constitutional issue is being ignored because elections are on the way in November.  Members of Congress would rather duck and cover than exercise their duties on war making authority and oversight.

Many cities in Syria have been obliterated by the civil war and the war against the Islamic State. Real people, real consequences. Bombing raids might cause more problems than they solve.  The U.S. government should take its responsibilities more seriously, and so should we all. The AUMF needs to be revisited, revised, and perhaps repealed.  Otherwise, America faces a grim prospect of open-ended war for years, perhaps decades, to come.

Craig Miller is a professor of history at the Pennsylvania College of Technology.

15 thoughts on “Asking whether Obama has the authority to make war on ISIS is the wrong question

  1. If Congress really wanted to control the current president’s war ambitions all they would have to do is simply repeal or nullify the AUMF. However, this will never happen so that at least Republicans will be able to continue to swipe at the President concerning his abuse of authority, which means they don’t really want to curb such powers so it will be there for the next Republican president…

    • Hi Steve. I think your last point is spot on. It’s not really surprising that the Republicans don’t want to curb the power in case the GOP parties like 1999 in 2016. What is disappointing is that the Democrat’s opposition faded at exactly the same time they took power.

    • As the late Gore Vidal once observed: “The United States has only one political party, the Property Party, and it has two right wings.” The far-right Republicans do not need a president of their own faction in order to have all the Warfare Welfare and Makework Militarism that they desire. They can get all of that and more from a president of the slightly-less-right-wing Democratic faction while retaining for themselves the advantage of irresponsibility for the dreadful consequences. Calling either of these right-wing corporate factions a “party” does violence to the very notion of democratic choice among competing philosophies and policy platforms.

      The Big Corporate Money will Buy a Republican and/or Rent a Democrat. It makes no substantive difference to the downwardly dropping working class who will get royally screwed either way.

      • Mike: I can’t help but laugh — but that’s only because I’d rather laugh than cry. Soon we’ll have ringside seats to this in the debates leading up to the presidential election of 2016. Watch what topics are debated, but especially watch which topics are NEVER debated (global warming, America as an empire, the MIC, the growing class divide, and so on).

        You nailed it.

  2. There is more and more evidence that both the Republican Party and the Democratic Party are committed to perpetual war. The armaments industries in our country are getting rich off of perpetual war ( see their stock price rises in recent years). Then notice the transition of retired military general officers into lucrative positions as “consultants” in these industries coupled to the political contributions to both parties and one can see why Hillary and the Republican presidential wannabees all see no end to war.
    Until we stop letting the government “psyops” make us fear ISIS and other unnamed “terrorists” as an excuse for continued war making this insanity will continue in spite of the constitution.

      • Steve.. I believe our electoral system is so corrupted by money and the petty ambitions of most of the monkeys running after that money , that the few honest politicians don’t have a chance of fundamentally changing the course of both parties. In essence we are now a corporate, fascist state with a docile and misinformed citizenry who are happy to take their shoes off before boarding a plane.
        In my opinion change will only come when the pain of being a citizen of a country that gives its people nothing but war and repression becomes so great that civil unrest results. There will be great repression .as a consequence and it is difficult to predict what will result.
        I am sorry to be so pessimistic but having lived through the ‘Great Depression” and the subsequent war I can say this country and its citizens have fundamentally changed. The citizens seem to be more interested in who will win their towns.
        next football game than what the trade deals Obama is cooking up to further impoverish them or his absolutely insane re-incursion into Iraq.
        The vote? I do support a few politicians who speak out on the issues I am concerned about but I do it mainly for the fact of their speaking out to keep the ideas alive. I do not expect that they can effect fundamental change at this time.

  3. Professor Miller, I detected the following lapses of logic in your presentation: 1.) Parsing the language of AUMF, we find the use of past tense, i.e. “…planned, authorized, committed, harbored…attacks…of Sep. 11, 2001.” Only these entities allegedly involved in those specific events are set up to be killed IN THE FUTURE. So, does POTUS have to “prove” the leadership and operatives of IS, an organization not known to exist on 9/11/01, were in fact involved?; 2.) was Osama bin-Laden “captured” and killed? Shall we define the time it took for the blast of bullets that cut him down (and into pieces) to travel from the muzzles of SEAL Team 6’s weapons to his body to be his “captivity”? This is absurd! As I pointed out in a commentary here on TCP, this was an “extra-judicial execution” of an individual never convicted in an open court of anything.

    So when you ask “Who from the Islamic State doesn’t fit this definition?” I am forced to answer: Just about everyone, it appears to me. To me, the fundamental issue is precisely that POTUS has seized and recklessly applied the outrageous notion that he, because he is the almighty POTUS, has the “right” to authorize these extra-judicial executions of anyone, anywhere on the planet, at any time…including US citizens. (This is more than a little Nixonian, since that creature apparently believed that a POTUS can’t be guilty of criminality.) I really don’t have the least bit of respect for any “court” that determines, in complete secrecy with no accountability to we the people, that someone is “guilty” of being a terrorist opposed to US hegemony over the globe. Once upon a time, schoolchildren were taught in this “land of the free” that an individual is to be considered innocent until proved guilty. It wasn’t entirely true back then, of course, but now it is just a monstrous lie. And I protest. I protest with every fiber of my being.

    • Greg,
      Thanks for your comment. The point you make about killing people ex post facto is the point I was trying to make. The AUMF allows the president to determine, on his own, what groups “…planned, authorized, committed, harbored…attacks…of Sep. 11, 2001”. It’s a legalized manhunt with branches extending in multiple open-ended directions; the language is too vague and too broad. I oppose the AUMF precisely because it can reasonably be interpreted to extend to groups like ISIS. I agree that the President is using the authority recklessly-my problem is that both parties enabled this recklessness through statutory law.

      I wholeheartedly agree that killing bin Laden was an outright extra-judicial execution. The president did argue during his 2008 campaign that he would do this-but that just makes it unsurprising, not legal. I used the scenario to support the argument that the AUMF is too broad, not to show support for killing bin Laden. Sorry for not being clearer.

      Cheers!

  4. Only Congress has the constitutional authority to declare war. The powers granted to the Executive Branch after WWII were done so arbitrarily, in my opinion, in order to expedite the growing Military-Industrial Complex which President Eisenhower warned the nation about in 1961.

  5. As George Orwell wrote in 1984: “In Oceania there is no law.” I think we need to start with that. The U.S. Government — meaning, the Oligarchical Corporate Collective — does what it wishes to do and will put forward any rationale, no matter how threadbare or implausible, to justify its actions. And should these actions run afoul of serious legal criticism, the U.S. Government will simply claim that the terms it has used to support its arguments mean something entirely different from what those same terms meant even as recently as 24 hours ago. For example, the author of this article states:

    “I think when you drop multi-million-dollar munitions on a group, you’re waging war against them, whether you declare it or not.”

    Not at all. According to the Obama administration, the bombing and dismemberment of Libya did not constitute “war” because no American military personnel died during the operation. So “war” does not mean “the organized military destruction of foreign property and killing of foreign persons.” If no American military personnel die carrying out the organized military destruction and killing, a “situation of some sort” may or may not exist — the U.S. Government will neither confirm nor deny either possibility — but whatever its nature, we cannot call it “war.” The Government of the United States has actually advanced this ludicrous and self-serving nonsense as a “legal argument,” but to date the U.S. Courts and Congress have not seen fit to contest this evisceration of meaning itself.

    As another example of outrageous “legal” semantic obfuscation by the U.S. government, consider how the Obama administration’s Justice Department claimed that accused persons incarcerated without charge or evidence had no right to “dueprocess,” but only to some unspecified “process” that administration minions might secretly “do.” The normal English speaking person can’t even make up semantic shit like this. It takes government employees calling themselves “lawyers” to do that.

    So, ultimately, whatever one thinks that the so-called AUMFs authorize or do not authorize, it should have become painfully clear by now that the words used in these statutes have long since lost whatever meaning they may once have had, if indeed they ever had any meaning to begin with — and this includes the words “a,” “and,” “or,” and “the.”

    As Syme said to Winston Smith in the Ministry of Truth: “You don’t grasp the beauty of the destruction of words.”

    • We are certainly saddled with “double-plus-ungood” government these days. Some sage (can’t recall the name) said “A nation gets the government it deserves.” Did the common people of Germany deserve their Hitler? We can argue the affirmative only to the extent that they allowed their own liberties to be whittled away. Gee, that sounds like a familiar situation. To the extent that we do not resist, and resist firmly, the whittling away of our own liberties (once upon a time believed to have been guaranteed by the Constitution–“a noble piece of paper,” in the words of the late and sorely missed Gil Scott-Heron) I’m afraid we do, indeed, deserve what we’re getting.

      • Chris Floyd at Empire Burlesque has a concise summation of the problems we citizens face when attempting to parse our government’s impenetrable jargon, only to discover a complete void of meaning even if successful in the excruciating exercise:

        “But on another level, the situation embodied by Obama’s speech defeats all rational commentary and analysis. There is no longer even a pretense of reason or consistency behind the official enunciations of American policy. The system — the whole system — is now given over entirely to permanent war: hot war in Muslim lands, cold war in Eastern Europe, class war against the 99 percent at home. That’s their only consistency. That’s their only casus belli. That’s all they know.”

        The truth doesn’t get any clearer or plainer than that.

      • The first page of the Prisoner Handbook issued to me upon arrival at Fort Devens (Massachusetts) Stockade after my first refusal to report for duty in Vietnam begins: “You have been ordered confined here by COMPETENT AUTHORITY.” [emphasis added] Who, pray tell, has determined that they are “competent authority”? Why, they themselves, the “competent authority” of course!! This is the exact same “logic” by which Obama claims the right to sign off on the assassination of suspected terrorists, including US citizens, with no judicial proceedings whatsoever. He is the “competent authority” who has “determined” that they are guilty and merit death. By the way, this was also the internal logic of Nazi Germany. See Hannah Arendt’s EICHMANN IN JERUSALEM. Yet another book I owned for years before finally getting around to reading it. It will be referenced in my memoir of my resistance to US Army 1967-71.

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