http://blogs.wsj.com/law/2014/09/24/untangling-obamas-legal-justification-for-syria-strikes/By
Jacob Gershman
With the expansion of the U.S.-led military campaign against Islamic State and al Qaeda-linked Khorasan in Syria, the Obama administration has come out with a more detailed explanation of the legal basis for the airstrikes.
Legal scholars are taking stab at untangling the strands of legal arguments articulated in the administration’s letters to Congress and the United Nations sent out Tuesday.
Justifying the military effort under domestic and international law, the White House is pointing to Congress’s 2001 authorization to fight al Qaeda, its 2002 authorization of force in Iraq, international legal theory, and the president’s constitutional war powers as commander-in-chief.
American University law professor Jennifer Daskal, writing with two co-authors at Lawfare blog, offers a lengthy breakdown of the arguments.
Regarding the strikes against Islamic State, she writes:
Under a theory of collective self-defense, the United States is assisting Iraq in responding to the direct and ongoing threat posed by ISIL; the threat stems in part from ISIL forces in Syria; and Syria is either unable or unwilling to quell the threat, thereby justifying an incursion into Syria’s territory.
The weakest link in the chain is the unwilling or unable test….That said, Secretary General Ban Ki-moon’s statement today which emphasized that the “the strikes took place in areas no longer under the effective control of that Government,” suggests there may be growing acceptance for aspects of at least the “unable” prong of the test in some cases.
Ms. Daskal, a former Human Rights Watch senior counterterrorism counsel, also cites a New York Times report that the White House may also be asserting under international law a right to defend U.S. personnel in Iraq against threats from Islamic State.
With respect to strikes against Khorasan, she writes that the United States is relying on a self-dense theory “that Khorasan is either ‘part of’ al Qaeda or an ‘associated force’”and thus is in an ongoing armed conflict with the group.
Writing at Slate, University of Chicago international and constitutional law professor Eric Posner suggests that those who doubt the legal basis for the strikes look at things from a historical perspective.
It’s wrong to say that “Obama has broken with American constitutional traditions,” Mr. Posner says. “That tradition dictates that the president must give a nod to Congress if he can, but otherwise he is legally free to go to war, subject to vague limits that have never been worked out.”
Looking at the question from a strictly legal basis, Harvard law professor Jack Goldsmith at Lawfare thinks the White House’s complicated argument is good enough. He writes:
The President is on pretty strong legal ground under both domestic and international law. I think the 2001 AUMF argument is weak, but the combination of the three domestic authorities (2001 AUMF, 2002 AUMF, and Article II) is an adequate legal foundation for the strikes
Politico notes that two months ago, the Obama administration had been calling for a repeal of the congressional authorization for the 2002 Iraq war.
A senior U.S. official told Politico that the president “would have the statutory authority to conduct airstrikes against ISIL in Syria under the 2002 Iraq [war authorization] at least to the extent that such operations are necessary to address the threat posed by ISIL’s operations in Iraq.”
