U.S. President Barack Obama, right, and former U.S. President George W. Bush walk on Tuesday, July 2, 2013.

U.S. President Barack Obama, right, and former U.S. President George W. Bush walk on Tuesday, July 2, 2013. (AP Photo/Evan Vucci)

Obama’s Dramatic Reversal on Bush’s Laws of War

Obama has launched an indefinite campaign against the Islamic State relying on Bush-era laws he pledged to end. Legal analysts aren’t buying it. By Molly O’Toole

When President Barack Obama announced his strategy to defeat the Islamic State in Iraq and Syria last week, the former constitutional law professor and 3-year senator who campaigned for the presidency on a promise to end the never-ending war in Iraq launched another indefinite war in the Middle East against the terrorist group. He did so using the 2001 and 2002 Authorizations for the Use of Military Force, the same laws he once condemned, and without a vote from Congress on the laws’ new purpose more than a decade later.

Obama’s reversal on the AUMFs is dramatic. His administration recently mapped out a foreign policy at National Defense University in May 2013 to get the U.S. “off a perpetual wartime footing,” in part by refining and repealing these Bush-era laws. And the ramifications, legal analysts say, will have a ripple effect beyond the midterm elections or even the last years of the Obama administration.

As the president himself argued at National Defense University, “Unless we discipline our thinking, our definitions, our actions, we may be drawn into more wars we don’t need to fight, or continue to grant presidents unbound powers more suited for traditional armed conflicts between nation states.”

“So I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate. And I will not sign laws designed to expand this mandate further,” Obama said. “Our systematic effort to dismantle terrorist organizations must continue. But this war, like all wars, must end. That’s what history advises. That’s what our democracy demands.”

Just not yet.

Al-Qaeda by Any Other Name

Over 3 months, 164 air strikes and nearly 2,000 American troops on the ground in Iraq, the Obama administration has insisted the president is acting within his authority as commander in chief, as endowed by Article 2 of the Constitution. Though the administration has issued a series of War Powers Resolution Letters to Congress, Obama officials have emphasized their actions are “consistent with” -- rather than beholden to -- the resolution’s 60-day limit for how long U.S. forces can be engaged in hostilities abroad without seeking congressional authorization.

In mid-August, as congressional aides and legal scholars alike expressed increasing skepticism of the legal argument for the administration’s expanding mission, National Security Council spokeswoman Caitlin Hayden told Defense One that the White House still supported the repeal of the 2002 AUMF. But she continued: “We are reviewing the applicability of the 2001 AUMF to this situation, which would be in addition to the president’s constitutional authority as noted in the War Powers Resolution report.”

Because neither the 2001 nor the 2002 AUMF included a sunset date, both still exist as statutory authorities. But given the administration’s stated position on the AUMFs, it came as some surprise when on a background call ahead of Obama’s primetime address Wednesday night, senior administration officials said for the first time they would now be relying on the 2001 AUMF, rather than the president’s constitutional powers alone, as the basis for military action. Then, on Friday, the White House told The New York Times that the 2002 Iraq AUMF additionally would serve as “an alternative statutory authority basis on which the president may rely.”

Congress overwhelmingly passed the 2001 Authorization for the Use of Military Force three days after the Sept. 11 attacks. It is a sweeping law crafted by lawyers from the administration of President George W. Bush to grant him unprecedented power to wage what he would dub the “War on Terror.” A mere 60 words, both Bush and now Obama have used the 2001 AUMF as their legal justification for the President’s Surveillance Program, which gave rise to the NSA controversies; indefinite detention and the prison at Guantanamo Bay, Cuba; signature drone strikes from Somalia to Pakistan; and virtually every use of U.S. force to fight terrorism across the globe in the last 13 years. Congress next passed the 2002 Authorization for the Use of Military Force Against Iraq.

In response to a number of questions about how the administration can be relying now on the 13-year-old, 2001 AUMF, White House spokesman Josh Earnest argued Thursday the Islamic State is the “true inheritor of Osama bin Laden’s legacy.”

“The 2001 AUMF continues to apply to ISIL because of their decade-long relationship with al-Qaeda, their continuing ties to al-Qaeda; because they have continued to employ the kind of heinous tactics that they previously employed when their name was al-Qaeda in Iraq; and finally, because they continue to have the same kind of ambition and aspiration that they articulated under the previous name,” Earnest said, calling al-Qaeda’s stated disavowal of the Islamic State “one internal disagreement that was aired in public.”

The Islamic State is led by Abu Bakr al-Baghdadi, who joined the insurgency in Iraq shortly after the 2003 invasion. He was a known mid-level bomb facilitator who survived long enough to bubble up in 2010 as the leader of al-Qaeda in Iraq. Baghdadi and other fighters from AQI would eventually form the Islamic State. On Aug. 14, al-Qaeda in the Arabian Peninsula, or AQAP, published a statement on its website pledging its support for the Islamic State, and the groups reportedly exchange advice. But in February, al Qaeda leadership formally disassociated from the Islamic State, marking the first time the group has formally disavowed a former affiliate, according to the Washington Post.

John Bellinger, legal advisor to the National Security Council and the State Department under Bush, said in response to the administration “considering” the 2001 AUMF -- weeks before Obama’s address -- that administration lawyers could not conclude “in good conscience” that the Islamic State is an associated force with al-Qaeda. Bellinger was in the White House situation room with then-National Security Adviser Condoleezza Rice preparing for a morning staff meeting on Sept. 11, 2001, when they heard the first reports of the attacks.  Bellinger told Defense One that Obama’s address marked a “dramatic reversal of course” and a “remarkable change in legal position.”

“To the surprise of everyone who has been following the issue, in the last 48 hours the administration has said no, the reason that the president has all the authority that he needs is not that he’s relying on the Constitution: There is congressional authorization under the 2001 AUMF.”

Benjamin Wittes, a senior fellow at the Brookings Institution and co-founder and editor-in-chief of the Lawfare blog, said both AUMFs are problematic, from a legal standpoint.

“The problem with the 2002 AUMF is it talks about using force against Iraq,” he said. “It’s hard to square the language, using force against Iraq is not the same as using force in Iraq, particularly not when we’re allied with the Iraqi government. And it’s a bit of a mislabeling the problem with the 2001 resolution for the use of military force -- it’s very hard to argue that ISIL is an associated force, given that al Qaeda has expelled the group.”

Bellinger said of the argument that the Islamic State is the “heir” to bin Laden, “It does seem to be a stretch.”

“Of course, I haven’t seen the intelligence, but the administration has not suggested that they have evidence of association or at least any significant connection,” he said. “This seems to be more of a case where the lawyers have been sent back to the drawing board and told, ‘We want to rely on the 2001 AUMF, come up with your best arguments.’ So this seems to be more of a political justification, a political decision to rely on the 2001 AUMF, rather than a carefully laid out legal case. And it’s politically very convenient because one, the president doesn’t have to ask for and get an authorization right now, and two, the War Powers Act wouldn’t be triggered.”

‘Mugged by the Reality of Terrorism’

The administration has sought to differentiate the Islamic State fight from Bush’s full-scale Iraq War, emphasizing that it is more akin to the counterterrorism operations the U.S. has been conducting for years in Somalia and Yemen. It has also tried to prepare the American people for a sustained, prolonged campaign, likely to take years and extend beyond Obama’s presidency. But there is another key contrast between Obama’s war against the Islamic State and Bush’s wars in Afghanistan and Iraq: Bush went to Congress for authorization.

As Obama considered intervening in Libya in 2011, White House officials said he didn’t require authorization from Congress under the War Powers Act. But as the U.S. military involvement extended beyond the time limits of the War Powers Resolution, officials then argued the conflict didn’t amount to “hostilities.” And almost exactly a year ago, when considering air strikes against Syria after President Bashar al-Assad crossed Obama’s “red line” by using chemical weapons, Obama again said he could act without congressional approval because the situation represented a potential threat to the U.S. But he also sent Congress a War Powers Resolution, and said lawmakers should decide. Senate Majority Leader Harry Reid, D-Nev., never brought the measure to the floor because he did not have the votes. Obama did not conduct the strikes.

“I think they’re learning the wrong lessons from last fall,” said Barry Pavel, vice president and director of the Atlantic Council’s Brent Scowcroft Center on International Security. Pavel served in the office of the Under Secretary of Defense for Policy for almost 18 years and then as senior director for defense policy and strategy for the National Security Council under both Bush and Obama. “Last fall I was shocked that they went to Congress [for strikes against Syria] … I thought it was a significant undermining of presidential prerogatives and precedent.”

But, Pavel told Defense One, “When you’re talking about an operation for ‘years,’ it’s pretty significant and it’s of a scale and expected duration that warrants a discussion with the American people, not altogether unlike the Iraq invasion. I would as gently as possible suggest that they should consider [congressional authorization], especially as he hands it off to his successor.”

“We don’t know how this is going to play out,” he continued. “You want other people along for the ride, a political sharing of risk and responsibilities, as a nation.”

Wittes offered two reasons Obama would seek to rely on existing AUMFs and not come to Congress for new authorities. “The first is presidents don’t like asking permission for things,” he said, “and the second is Congress doesn’t like to vote.”

“We have tended to style this as a migration of war power to the president, as a usurpation,” Wittes said. “But it’s actually as much an abdication and abandonment by Congress of their authority, as it is a presidential claim of power.”

While Bellinger agreed “Congress has essentially has been let off the hook” by the president’s argument he is relying on the 2001 and 2002 AUMFs, he said rather than providing Obama political cover, the move opens him up to significant criticism -- particularly from his base.

“He said he wanted to repeal and refine the AUMF and that he would not sign any law to expand it,” he said. “So here he has not signed a law to expand it, he’s expanded it himself, and contributed to one of its most significant expansions, to go after a new group in Iraq and Syria.”

“He’s essentially just come full circle,” Bellinger said. “He’s now been forced to confront the real reality of terrorism ... six years later, he’s having to confront a really vicious terrorist group. It goes and beheads a couple of Americans and it’s much harder for him to say, ‘We should just treat this as a law enforcement matter. We need to move off a war footing and move on with our lives.’”

“He’s been essentially mugged by the reality of terrorism.”