The So-Called “Islamic State” and the Constitution: What Can the President Do? (Part 2)
In the second part of his extensive commentary, Robert F. Turner from the University of Virginia looks at issues of policy and international law in his analysis of executive power, the Constitution and intervention against the “Islamic State.”
Part one of this commentary is available at: http://blog.constitutioncenter.org/2014/09/the-so-called-islamic-state-and-the-constitution-what-can-the-president-do-and-what-should-he-do/
(source: Flickr)
The Modern Trend of AUMFs and the “Islamic State”
In the second half of the 20th century, the practice developed of enacting “specific statutory authorization” (to use the language of Section 2 of the War Powers Resolution) for the use of military force. Many of these were constitutionally unnecessary, as they pertained to purely defensive situations where the president clearly had the power to act. But, whether legally necessary or not, having Congress declare its unity with the Commander in Chief can be very desirable as a means of both securing domestic support and signaling America’s unity to those who threaten the peace.
As a technical matter, I do not believe President Obama needs a new AUMF to take military action against the “Islamic State.” IS has murdered Americans and made credible threats to attack us at home and abroad. More importantly, Section 2 of the 2001 AUMF against al Qaeda and its allies expressly authorized the President “to use all necessary and appropriate force against those . . . organizations . . . he determines committed, or aided the terrorist attacks that occurred on September 11, 2001, . . . in order to prevent any future acts of international terrorism against the United States [emphasis added].” Al Qaeda was the primary target of that legislation, and Sunni radicals loyal to Osama bin Laden established the organization currently calling itself the “Islamic State” in April 2004. In 2006 it assumed the name “Al Qaeda in Iraq” and played an active role in attacking American forces in that country. Both the Bush and Obama administrations have determined that it was part of the al Qaeda network, and pursuant to the 2001 AUMF launched numerous attacks on its leaders.
The fact that Al Qaeda in Iraq later changed its name and that its increasingly brutal attacks on civilians ultimately led al Qaeda to sever the alliance does not remove IS from coverage by the 2001 AUMF. The expressed purpose of the AUMF was to prevent future terrorist attacks on the United States, and it is clear that—whatever name it calls itself—IS is currently the most serious terrorist threat to America and its allies. To argue that its new name and increasingly brutal tactics ought to somehow immunize it from further attack is as absurd as would be removing al Qaeda itself from the target lists because it decided to go by a new name. And keep in mind that the language of the statute expressly vests the decision about what organizations to target in the president.
Having said that, I believe it would be a tragic political blunder for the President not to seek a reaffirmation of congressional support for military action against this clear threat to American security. Polls show that roughly three-quarters of Americans favor military action, and legislators who elect not to stand united with the Commander in Chief will risk being held accountable by voters following the next terrorist attack.
Issues of International Law
It may be useful while addressing this problem to touch briefly upon some issues of international law. For example, even if formal declarations of war were not an anachronism, one would nevertheless be inappropriate in the current situation. For they were legal instruments associated only with armed conflicts between sovereign states, and (despite its claimed title), the terrorist group that calls itself the “Islamic State” clearly does not possess the attributes required by international law to be a state. Among other problems, to be a sovereign state an entity must be recognized as such by sovereign states. Although some have declared that its behavior is so foreign to the peaceful teachings of Islam that it is also not “Islamic,” that decision is beyond my competence. But it clearly is not a “state” under international law.
Another international law issue is whether the United States can use lethal force against the Islamic State other than in direct response to specific attacks on Americans. For a number of reasons, the answer is clearly in the affirmative. Among other justifications, Article 51 of the UN Charter clearly recognizes the (preexisting) right of countries to act in collective self-defense of states that are being attacked and request assistance. So even if this organization had not been killing Americans with IEDs and by cutting off their heads, we could attack them at the request of Iraq.
There is also the doctrine of Humanitarian Intervention, which authorizes the use of necessary and proportional armed force by members of the international community in response to genocide or other massive violations of internationally recognized human rights when necessary to prevent the slaughter or flagrant physical abuse of large numbers of innocent people. As Professor R. J. Rummel has documented in Death by Government, during the twentieth century, roughly three- to four-times more people were killed by their own governments (an act he terms Democide) than by war. While Humanitarian Intervention is controversial (because it might be abused as cover for international aggression), any theory of international law that declares that it is impermissible for other states to intervene to stop the next Adolf Hitler from slaughtering millions of innocent people is part of the problem, not the solution, and is unworthy of our support.
That still leaves the issue of whether we can attack IS forces when they seek sanctuary inside the sovereign borders of Syria. As a general rule, states are not permitted to use force within the territory of another sovereign state without its consent. But the doctrine of State Responsibility imposes on Syria (like all states) a duty to prevent its territory from being used to attack another state. If Syria is either unwilling or unable to fulfill that responsibility, as the victim of those attacks, Iraq—or an ally like the United States, acting in collective self-defense at the request of Iraq—has a right to use necessary and proportional force within Syrian territory to prevent such attacks.
There are situations where a sovereign state may privately grant consent to another state to use force inside its territory, but for domestic political or other reasons may publicly express outrage if the use of force becomes public. Thus, a country that is fearful that open cooperation with the United States might result in terrorists kidnapping or killing its nationals around the world might still notify us that a particularly heinous terrorist is staying in room 304 of the Intercontinental Hotel, and grant consent for U.S. forces to apprehend and remove him covertly from their territory—but with the caveat that, if the operation become public, they will publicly denounce us for violating their sovereign territory. Consent does not have to be public to be valid.
Issues of Policy
Sadly, the President and his advisers have made some horrible blunders that have exacerbated our current problems. Announcing in advance that he would begin withdrawing U.S. troops within eighteen months signaled our adversaries in Iraq and Afghanistan that America had lost its will, and to prevail in the long run all they needed to do was wait us out. It sent similar messages to those we had promised to help, almost certainly contributing to some of the difficulties that followed. Public statements to reassure domestic critics quickly come to the attention of our friends and foes alike, and some have done unnecessary and very serious damage.
Few doubt the military prowess of the American armed forces. But deterrence is a function of perceptions of strength and will, and since Vietnam our enemies have relied on our lack of will to see commitments through to a successful end. One can make a strong argument that the 9/11 attacks were a direct result of Osama bin Laden’s perception—expressed to an American journalist in Afghanistan in 1998—that our pullouts in Beirut after the October 1983 truck bombing that killed 241 sleeping Marines, and from Somalia after the “Blackhawk Down” engagement a decade later that killed 23 Americans and wounded another 80, proved we were unwilling to take casualties. The issue was not about the ability of our military to win battles, but the will of our people and political leaders to stay the course. And sadly, both of those tragedies were at least in part the product of partisan politics and concerns about offending congressional “doves”.
In his autobiography, Teddy Roosevelt provided this sage advice: “The unforgivable crime is soft hitting. Do not hit at all if it can be avoided; but never hit softly.” Threatening to respond to Syria’s unlawful use of chemical munitions by firing a few missiles into the country, but publicly assuring Assad in advance that there would be no “boots on the ground” and we had no interest in “regime change,” was hardly likely to deter anything. I’m not advocating either option. I’m saying that reassuring tyrants we are trying to deter that we will only “hit softly” will not likely produce a useful effect. The same principle obviously applies to the President’s recent insistence that there will be no American boots on the ground in the struggle against IS. Public declarations that we will only hit softly have the ironic effect of undermining deterrence and encouraging aggression and terrorist attacks.
During the Cold War, America stepped forward as the leader of the free world. We provided most of the foreign troops in fighting armed aggression in Korea and Vietnam. (And for those who missed it, after the war ended Hanoi admitted that it had initiated a campaign to overthrow the government of South Vietnam by force in May 1959—more than five years before the American Congress authorized a defensive response. It turns out the State Department was telling the truth when it asserted in 1965 we were responding to “aggression from the north.”)
America played a leadership role in keeping the peace during the Cold War in many other ways as well. But neither the American people nor the world community want America to serve as the world’s policemen, and it would be foolish for the United States to take on IS alone.
President (and former UN Ambassador) George H.W. Bush demonstrated classic American leadership in 1990 by persuading the UN Security Council to authorize the use of military force to eject Iraqi forces from Kuwait and assembling a coalition of more than 30 countries (including most of the Arab world) to make that happen. If the struggle against IS is perceived as a conflict between predominantly Christian states and Muslims, securing victory will become far more difficult.
This ought to be a struggle that is in the interest of every member of the United Nations, especially the five Permanent Members of the Security Council (who have the power to veto Security Council action). However, if other countries believe that America is willing to bear the burden alone, they will see little need to become directly involved. Joining a coalition increases the risks that radical Islamists will attack their countries and their nationals around the world, which they would understandably like to avoid. But they clearly have no interest in just sitting back and allowing IS to conquer more of the Middle East.
This very serious threat to virtually the entire world ought to provide an excellent opportunity to try to revitalize the Security Council, which pursuant to Article 24 of the Charter is given “primary responsibility for the maintenance of international peace and security.” Both Russia and China have their own problems with radical Islamists at home; and. without external intervention, the Shiite Assad regime in predominantly Sunni Syria will continue to be at risk. Assad’s closest allies are Shiite Iran, Russia, and China. Further, neither Russia nor China want to see the American military occupying portions of the Middle East during or after a successful military campaign against IS.
Without serious foreign intervention, the leadership throughout the Arab world may well be at risk from IS. This ought to provide U.S. and UN diplomats with considerable leverage to persuade them to support and participate in a UN-led coalition, so that IS will recognize that the entire world is united against it. At present, Muslim recruits from around the world are reportedly flocking to Iraq to join this rapidly expanding movement. People like to be on the winning side, especially in places where choosing the wrong side may prove fatal. But if the world community can send the message that potential IS recruits will be taking on the entire world, and facing the most devastating modern weapons of the united superpowers, joining IS might quickly be perceived as a much less attractive opportunity.
Finally, there is the role of the Republican opposition in Congress. For more than six decades, it has been common practice for the congressional opposition to seek partisan advantage during periods of armed conflict. In 1950, President Harry Truman had the State Department draft an AUMF and repeatedly offered to address a joint session of Congress and seek formal statutory authorization to use American military forces in resisting the North Korean invasion of South Korea. Republican and Democratic legislators alike told Truman he had the authority to act pursuant to the Constitution and the UN Charter (which was clearly true), and urged him to “stay away” from Congress. Truman ultimately agreed to follow their advice. But when Chinese “volunteers” flooded into Korea and the war became less popular at home, conservative Republicans like Richard Nixon declared that Truman had “violated the Constitution” and “ignored Congress,” and Truman’s popularity quickly plummeted. The Republicans were rewarded with the 1952 election of Dwight David Eisenhower as America’s thirty-fourth president.
In 1964, President Johnson received clear statutory authorization to go to war in Indochina by a combined vote of 504-2, and in the early years of that conflict appropriations for the war received far above 90% support in both Houses of Congress. But when (in part thanks to civilian mismanagement, effective enemy propaganda, and news media incompetence) public support for the war began to wane, the opposition party gleefully used the opportunity to portray the incumbent as an “imperial” president who had violated the Constitution. LBJ’s approval in the polls fell so rapidly that he announced he would not seek a second term, and when Richard Nixon was elected in 1968 congressional Democrats quickly blamed him for the war—and by a narrow, four-vote margin pushed through the 1973 War Powers Resolution over his veto.
Given Nixon’s earlier role in using the Korean War to undercut Truman, there might be some irony in the knowledge that Democrats returned the favor two decades later. But partisan members of the congressional opposition need to understand that when they undermine support for the Commander in Chief so the ship of state might run aground—that “ship” belongs to us, and we are all on board.
In a February 1949 Lincoln Day address in Detroit, Senator Arthur Vandenberg—often referred to as the “father” of modern bipartisanship—declared:
It will be a sad hour for the Republic if we ever desert the fundamental concept that politics shall stop at the water’s edge. It will be a triumphant day for those who would divide and conquer us if we abandon the quest for a united voice when American demands peace with honor in the world. In my view, nothing has happened to absolve either Democrats or Republicans from continuing to put their country first. Those who don’t will serve neither their party nor themselves.
America and the world face a serious threat of terrorist attacks. My expectation is we will be again hit hard—in the not too distant future. (I hope I’m wrong.) Now would be a great time for the President to work to unite America and the world community against this common threat—by seeking a bipartisan AUMF and a UN Security Council authorization under Chapter VII of the Charter. It is also a good time for congressional Republicans to bear in mind that, until January 2017, America will have but one constitutional quarterback. He has made some tragic mistakes, but the one guaranteed way to lose the game is to sack our own quarterback.
Professor Turner holds both academic and professional doctorates from the University of Virginia School of Law, where in 1981 he co-founded the Center for National Security Law. He is a former three-term chairman of the ABA Standing Committee on Law and National Security and has authored two books on the War Powers Resolution. The views expressed are personal.
