Obama Is Stretching The Legal Bounds He Created For Himself In The War Against ISIS
"I think they're on nonexistent legal ground, but unfortunately I don't see a way of stopping that," Rep. Jerry Nadler (D-N.Y.) told Business Insider on Tuesday, later adding, "I think this is illegal."
The US and partner allies began striking the Islamic State, also known as ISIS or ISIL, late Tuesday night. With those and additional strikes carried out Tuesday and Wednesday, the US military has hit 20 ISIS-held targets in Syria to go along with nearly 200 strikes in Iraq over the past six weeks.
The US' airstrikes Monday night also targeted a group, known as the "Khorasan," that until late last week no high-ranking US official had ever publicly mentioned. By Tuesday, President Barack Obama and Department of Defense officials stressed they were an "imminent threat" in the "final stages" of execution of a plan to carry out possible attacks on US and European soil.
But the expanded campaign brings about legal questions - some of which the Obama administration has brought upon itself by urging a narrower scope on counterterrorism operations.
Senior administration officials said Tuesday that they believed Congress' 2001 authorization of military force that passed after the Sept. 11 terrorist attacks provided legal basis for striking both ISIS and the Khorasan group.
The administration's reasoning is this, according to the senior US officials: the Khorasan group is made up of "seasoned" al-Qaeda "veterans." The 2001 authorization provides for the use of force against al-Qaeda, the Taliban, and associated groups.
ISIS also falls under the 2001 AUMF, these officials said, because of its previous affiliation with al-Qaeda. The group had a highly public falling out with al-Qaeda earlier this year, and their roots trace back to the group al-Qaeda in Iraq.
"Given the history of this group going back many years, given the fact that we have been in conflict with them for many years and that hasn't changed, we don't believe that Congress would have intended to remove the President's authority to use force against this group simply because the group had a disagreement with al Qaeda leadership," a senior administration official said Tuesday.
In a letter to Congress, Obama also cited both the 2001 authorization and a 2002 congressional authorization of force for the Iraq war as the basis for new action against ISIS in both Iraq and Syria.
Some in Congress have begun calling for the body to come back immediately from a self-imposed recess and begin debate on a new, more narrow authorization. But with crucial midterm elections looming, the calls have been mostly sparse.
Sen. Tim Kaine (D-Virginia) has been leading the push, introducing a new authorization that would also repeal the 2002 measure. Kaine spoke Tuesday at the Center for American Progress, a left-leaning think tank, and said he worried Congress had given way to a "pre-emptive war doctrine" he said had been previously championed by former Vice President Dick Cheney.
"To call ISIL a perpetrator of 9/11 is to basically torture the English language," Kaine said. "And I would argue, it's essentially falling back into the 'pre-emptive war' doctrine that Congress rejected." Rep. Chris Van Hollen (D-Maryland), the ranking member on the House Budget Committee, urged House Speaker John Boehner to call the House back to debate a new authorization. When asked about the calls from various members of Congress to debate a new measure, Michael Steel, a spokesman for Boehner, deferred to the White House. "He thinks it would be good for the country to have a debate on an AUMF," Steel told Business Insider. "But traditionally, such an authorization would be requested and written by the commander in chief. And President Obama has not done so." Obama's own actions and public statements, along with those of senior members of his administration, have suggested a different path for a counterterrorism strategy than the one he ultimately ended up taking against ISIS and the Khorasan. During a major foreign policy speech last year, Obama spoke of the need to "define the nature and scope of this struggle" posed by terrorist groups, warning that the failure to do so could instead "define us." Kaine on Tuesday repeated a criticism shared by many in the administration - that the 2001 authorization is too broad. And back in only July, National Security Adviser Susan Rice wrote a letter to Boehner urging Congress to repeal the Iraq war authorization, which was directed at dispatching a ruler - Saddam Hussein - who is no longer alive. For his part, Nadler doesn't buy the administration's logic on using the same authorization 13 years later. "No one thought that we would use this," Nadler told Business Insider. "No one would have even thought that we would use this 13 years later or 25 years later or whatever under completely different circumstances - against an enemy who didn't exist at the time. The fact that this enemy which is now fighting al-Qaeda was at one time affiliated with al-Qaeda is irrelevant. They're not part of al-Qaeda, and the idea that that would last forever is ridiculous."