http://www.politico.com/magazine/story/2014/08/the-lawful-way-to-fight-the-islamic-state-110444_full.html#.VADLqGMjDiEThe Lawful Way to Fight the Islamic State
If the president wants to act in Syria, he needs congressional buy-in.
By HAROLD HONGJU KOH
August 29, 2014
All of Washington is asking: How can the United States lawfully address the threat from the Islamic State in Iraq and the Levant—ISIL, also known simply as the Islamic State—without provoking a wider war abroad and a constitutional crisis at home? That question raises complex issues of law and policy.
So far, President Obama has acted lawfully in response to this crisis. His uses of targeted military force in Iraq to rescue the Yazidi minority group, secure the Mosul Dam and counter ISIL’s efforts to destabilize the wobbly Iraqi government have been limited and necessary to avert humanitarian disaster and to protect U.S. nationals and vital interests. The Iraqi government has consented to these strikes for limited purposes, which America’s closest allies have broadly supported. As Vice President Biden clarified, the administration has used hard power in small doses to support a worthy “smart power” objective: to give breathing room in Iraq for a diplomatic and democratic process in the wake of Prime Minister Nuri al-Maliki’s resignation. Although some legislators have complained of being inadequately consulted, Congress has remained out of session, with most of its members eager to avoid a vote on whether to authorize force until at least after the November elections.
But Congress’ return in September signals a new decision point. The more the president keeps bombing, the more Congress and the public will accuse him of committing U.S. forces to “hostilities” without congressional approval, beyond the 60-day time period specified by the War Powers Resolution. Under U.S. law, President Obama can hardly extend a conflict with ISIL to Syria based on claims of inherent constitutional authority, when he rightly criticized the Bush administration for pursuing a “Global War on Terror” based on similar sweeping claims.
Congress has enacted two Authorizations for the Use of Military Force (AUMFs) in the region, but both address different situations. The 2001 AUMF was enacted 13 years ago to prevent al Qaeda and its co-belligerents from attacking the United States, not to fight a distant battle against a terrorist group that did not exist on Sept. 11, 2001, and has now clearly split from al Qaeda. The 2002 AUMF for Iraq targeted the national security threat in Iraq, but was directed at Saddam Hussein, not ISIL, and at the unfounded fear that he possessed weapons of mass destruction.
Under international law, military strikes in Iraq with local consent could be justified in the near term, especially to protect U.S. nationals, or to prevent genocide against ethnic groups, such as the Kurds or the Yazidi. But inside Syria, President Bashar al-Assad’s government would not openly consent to U.S. intervention. Moreover, the goal would be different—to attack ISIL leadership, not just to protect U.S. nationals or Syrian civilians, tens of thousands of whom have already died. If partner governments such as Iraq, Turkey and Jordan request strikes, the administration could plausibly argue that it is conducting limited military actions in Syria in collective self-defense to protect these countries from ISIL’s threat to regional peace and security. And the administration could justify particular military actions in Syria that are demonstrably necessary to save American hostages—like the rescue attempt for James Foley—to prevent an imminent attack on U.S. citizens, or to avert a mass slaughter of innocents. The United States could also take necessary and proportionate actions to target particular senior ISIL leaders who have clearly taken up arms alongside al Qaeda against the United States. But absent a U.N. Security Council resolution, these limited rationales could not sustain more concerted military action against ISIL inside Syria.
That leaves the White House with three main options, only the third of which is acceptable. The first is to do nothing, avoid engaging Congress and keep bombing based on shifting legal rationales. Such an approach seems guaranteed to further weaken the president, by triggering an ill-timed constitutional battle over the president’s prerogative to conduct unilateral war.
A second bad option would be to let congressional hawks take the lead and authorize a new expansive AUMF that would effectively perpetuate counterterrorist wars by giving the president broad new authority to attack whatever new dangerous groups may arise. But this president came into office to end, not perpetuate, wars. And in our history, Congress has never declared an open-ended “Forever War” against unspecified enemies. Not in 2001, not ever. A measured authorization clearly limited in time and scope is far more likely to receive sustained support from Congress, the public and our allies.
So the White House’s third and best option is to engage Congress proactively to secure tailored legal authority to achieve those policy objectives that it shares with Congress and our allies. Those objectives vary according to context. In Iraq, the goal is to use U.S. airpower, but not boots on the ground, to prevent ISIL from seizing key assets, harming American citizens or civilian groups or disrupting the fragile post-Maliki democratic process. We should “re-contain” ISIL by using military force to stop it from metastasizing and “shrink ISIL back into ISIS” as a smaller, less ambitious non-state actor that limits its aspirations and activities to Syrian territory. Assad may be the enemy of our enemy, but he is not our friend, and our use of military force should not perversely strengthen his grip on power or improve his capacities to slaughter civilians. Outside of Iraq and Syria, our policy goal should be to systematically use aggressive diplomacy and tailored force, consistent with international law, to degrade ISIL’s capacities so that it is less able to recruit foreign fighters, take hostages, destabilize peaceful governments or conduct brutal campaigns of terror.
To achieve these goals, the president needs durable legal authority, which will require action on both the domestic and international fronts. To secure a domestic legal ground for action, the administration should engage with Congress to develop an ISIL-specific AUMF. That statute would authorize the president to use such force against ISIL —inside and outside Iraq—as is necessary and appropriate to achieve agreed-upon, defined strategic objectives. Those could include acting in individual and collective self-defense against ISIL and degrading its capacities to commit terrorist acts, to destabilize peaceful governments and to perpetrate future attacks on American citizens and vital interests.
Congress should place limits on that delegated authority by, for example, requiring the president to return to Capitol Hill for express approval should he wish to use force against any armed groups “associated with ISIL” or seek to introduce U.S. ground troops into the territory of Iraq or Syria as part of the conflict against ISIL. The resolution should include robust consultation and reporting requirements to ensure that the executive branch regularly provides information to relevant congressional committees, publicly whenever possible, and in closed classified sessions when absolutely necessary. These reports should identify when, where and under what circumstances lethal force has been used pursuant to the authorization, and how many civilian casualties have resulted from those actions. Finally, the bill should include a “sunset clause” that terminates the authorization at the end of one—or at most, two—years, to ensure that Congress affirmatively assesses progress before it assents to any continued use of force against ISIL.
On the international front, the administration should ramp up diplomatic efforts to enlist support for military operations against ISIL. It should seek a Security Council resolution defining the particular purposes for which multilateral action is authorized, including sanctions, humanitarian assistance, aid to responsible Syrian rebel groups who oppose both Assad and ISIL and the protection of civilians, refugees, NGO workers and journalists. When the Russians object, the coalition should point to Russian President Vladimir Putin’s flagrant violation of Ukrainian sovereignty to isolate and shame the Russians from blocking a meaningful resolution. At the same time, U.S. diplomats should build support among the Arab League and NATO for anti-ISIL actions, with an eye toward breathing life back into the moribund Geneva II Syrian peace process.
President Obama and his team will be understandably leery about approaching Congress and our allies about authorizing force in Syria after last year’s “red line” debacle. His critics on the left—and some on the right—will surely charge that he has opened a new front against ISIL, when his stated goal was to end the wars in Iraq, in Afghanistan and against al Qaeda. But even if Congress balks, it is always better—as a matter of constitutional principle and public accountability—for the president to forthrightly demand its support for a long-term military engagement. The same reasoning favors working with U.S. allies to seek a Security Council resolution, given that without one, the strongest basis in international law for force against ISIS would be the shakier grounds of collective self-defense or a responsibility to avert humanitarian slaughter.
This president has repeatedly stated his commitment to use force only for carefully defined purposes, consistent with American law, values and a broader smart-power approach to national security. Should the conflicts in Iraq, Afghanistan and against al Qaeda recede, he can still seek to narrow or repeal the 2001 and 2002 AUMFs before leaving office. And he can do so having kept his promise to restore respect for the Constitution and the rule of law, while protecting our national security, taking us off a perpetual war footing and working with Congress and our allies to address the most vexing issues arising from the Arab Spring.
Harold Hongju Koh, Sterling professor of international law at Yale, served as legal adviser to the U.S. State Department from 2009-13.
