Noah Feldman / Bloomberg View – 2015-02-15 21:18:35

http://www.bloombergview.com/articles/2015-02-12/obama-s-war-spreads-ever-wider

(February 12, 2015) — Does President Barack Obama’s proposed authorization for the war against Islamic State go too far or not far enough? This should be a simple question, but it isn’t. Legally, the proposal has the effect of mildly extending presidential power to fight Islamic State, not limiting it.

Politically, however, it imposes some real-world constraints that weren’t there before. The proposal therefore has something for everyone — but it also gives everyone something to criticize.

Start with the law — and its legal effects. As drafted, the authorization for the use of military force replaces the 2002 Iraq War authorization. But it leaves in place the 2001 authorization passed immediately after the Sept. 11 attacks. That law originally applied to al-Qaeda, but has been extended by interpretation to cover successor organizations including Islamic State.

The legal fact you need to keep in mind when evaluating the new authorization is that the Obama administration has already claimed the authority to bomb Islamic State under the 2001 authorization.

It follows legally that the only thing the new document can do is add extra authority to the president’s already great power — it can’t take anything away, as my colleague Jack Goldsmith pointed out this morning while I was still getting my kids ready for school.

And indeed the new proposal does expand the president’s authority. The old authorization permitted war against those whom the president determined to have “planned, authorized, committed, or aided” the Sept. 11 attacks “or harbored such organizations or persons.” Even as expansively interpreted by the George W. Bush and Obama administrations, this language imposed some outer bound on who could be counted as al-Qaeda.

The new authorization, however, extends to “individuals and organizations fighting for, on behalf of, or alongside ISIL or any closely-related successor entity in hostilities against the United States or its coalition partners.”

This language goes further than the old authorization. Fighting “alongside” Islamic State could be almost anyone involved in the fight against Bashar al-Assad, for example. Uncomfortably enough, that would include potential US allies — and even, bizarrely, the US itself.

The new authorization would also cover isolated individual actors with no actual connection to Islamic State who nevertheless claimed to be fighting on its behalf. A recent example would be Amedy Coulibaly, the man who attacked the kosher supermarket in Paris, killing four French Jews.

Coulibaly was trained in Yemen by al-Qaeda in the Arabian Peninsula, like the Kouachi brothers who attacked Charlie Hebdo. But unlike them, he claimed an imagined affiliation with Islamic State.

But wait, you say, doesn’t the proposed authorization also limit the war against Islamic State by prohibiting “enduring offensive ground combat operations” and sunsetting after three years?

Here is where law gives way to politics. As a legal matter, the limitations are close to meaningless. The president could rely on the 2001 authorization if he wanted to send ground troops for an extended period; the 2001 authorization has no endpoint.

Politically, however, both the limitation on ground forces and the sunset are highly meaningful. By going to Congress and disclaiming all intention for the use of significant quantities of ground forces over an extended period of time, the Obama administration is saying publicly that it isn’t going to treat the fight against Islamic State like the conflicts in Afghanistan or Iraq.

As a realistic political matter, the passage and signature of this authorization would block Obama from changing course and sending major ground forces without going back to Congress.

Beyond the end of the Obama administration, this authorization would almost surely have the same political effect on the next president — at least until February 2018, when the sunset ends.

This real-world political impact helps explain why the Obama administration is bothering to ask for an authorization that it considers formerly unnecessary from a legal standpoint. Of course, the president has already made it blindingly clear that he won’t be invading Syria or Iraq to take on Islamic State.

It costs the administration nothing to reiterate this strategic-political judgment in the form of a congressional authorization — so long as no legal power is given up. And now the administration will be able to say to critics on the left that the American people have approved the air war on Islamic State.

As a further benefit of this political cover, notice that the new proposal actuallyauthorizes the use of ground forces in operations that don’t count as both “enduring” and “offensive.” For an administration that claimed the extended bombing of Libya didn’t count as offensive war, this authority can only be described as substantial.

If he really, really wanted to, the president could send a large military force to defend civilians from Islamic State attack and call it defensive. If the ground forces were in fact going on the offensive, the president could simply say that their attacks were not “enduring” but intended as temporary.

In either case, the legal argument might be sketchy. But that wouldn’t matter, because the president could always say the military actions were covered by the 2001 authorization. Instead, the argument would be political: The president would be able to say Congress had authorized this expansion.

The new authorization therefore is more important politically than legally. For the most part, its politics constrain the president and for a time his successor. But even the political constraint has an escape hatch. Now that’s clever drafting.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

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