Obama 86’d the War Powers Resolution

Eighty-six — that’s how many days have passed without President Barack Obama seeking congressional approval for his actions in Iraq, despite a decades-old law that forbids presidents from waiting so long to get lawmakers’ sign-off on military engagements.

Nevertheless, Obama says he doesn’t need Congress’s go-ahead, and that’s just fine with most of Capitol Hill.

Obama deployed 275 military advisors to reinforce the U.S. Embassy in Baghdad on June 15 and formally informed Congress in a letter dated June 16. But under the 1973 War Powers Resolution, the executive must ask the legislative branch to approve such moves within 60 days.

The House arguably took offense and on July 25 passed a resolution authored by Rep. Jim McGovern (D-Mass.) that would reinforce the War Powers Resolution and bar the Pentagon from keeping troops in Iraq for more than six months.

"Do we approve of these deployments and any future escalation?" McGovern asked on the House floor then. "If so, we should vote to authorize it. If we do not support it, then we should bring our troops back home."

But since airstrikes over Iraq began Aug. 8 — while Congress was on a monthlong recess — most members have shown little appetite to press the issue further as the Nov. 4 midterm elections rapidly approach and fear that the brutal terrorist group, the Islamic State, could target U.S. soil next grows.

Perhaps in a nod to his flouting of the law, or possibly to lay the groundwork for a legal strategy to get around it, Obama has been busy penning letters to inform Congress about the military’s actions against the Islamic State and to protect U.S. personnel in Iraq. Each of the eight letters ends with a variation on a curious phrase: "I appreciate the support of the Congress in these actions."

With Obama set to deliver a prime-time address Wednesday night, Sept. 10, to announce a more aggressive military campaign against Islamic State militants that could expand into Syria, legal scholars and other observers have been debating whether Obama technically has remained within the War Powers’ confines.

For example, if one considers that the current round of American military operations began with that June deployment, then the 60-day deadline has clearly come and gone. If one maintains that the operation didn’t get underway in earnest until airstrikes started, then the White House and Congress are on track for an early October showdown.

Jack Goldsmith, the former George W. Bush administration lawyer who teaches at Harvard Law School, speculated that the White House has stepped up its reporting to Congress in order to "reset" the War Powers’ clock and give it legal cover. According to Goldsmith, this legal argument sees each mission as a separate operation under the terms of the War Powers Resolution, thereby continuously giving Obama another 60 days before he must secure congressional authorization.

"I would hate to think that a former law professor sees things this way or that they are so inept in reading statute," said Peter Raven-Hansen, co-director of the National Security and U.S. Foreign Relations Law Program at George Washington University.

Lawmakers are also shaking their heads at such reasoning.

"If, in fact, the president is intentional and deliberate in escalating the level of U.S. engagement in the region and concurrently saying he has the authority to do so without authorization from Congress, then I find myself at odds with the administration," Rep. Scott Rigell, a Virginia Republican who got 115 colleagues to sign a letter last year asking Obama to seek congressional authorization before launching potential airstrikes in Syria, said in an interview with Foreign Policy Tuesday night.

Maryland’s Dutch Ruppersberger, the House Intelligence Committee’s top Democrat, told Foreign Policy on Wednesday that he thinks the increased reporting doesn’t have anything to do with the War Powers Resolution; rather, he thinks it’s a response to criticism from Congress that legislators were kept in the dark about the prisoner swap that led to the release of imprisoned Army Sgt. Bowe Bergdahl in May. The GOP-controlled House voted to condemn Obama for that reporting violation on Tuesday, but the Democratic-led Senate is highly unlikely to take up the resolution.

Since War Powers Resolution’s inception in 1973, every president has complained that it unconstitutionally infringes on his powers as commander in chief, but the legal smoke screen presented by the White House has even seasoned observers scratching their heads over how the president will authorize whatever operations he unveils on Wednesday night. "For a Harvard-educated lawyer, the legal gymnastics of the president are getting hard for me to follow," a Senate aide told Foreign Policy.

One such gravity-defying maneuver involves securing what Obama on Sunday called congressional "buy-in" for operations against the Islamic State by asking lawmakers to fund moderate Syrian rebels. Using appropriations as implied authorization for military action is a tactic that dates back to the Vietnam War. Bill Clinton’s administration also relied on that justification during its 1999 air campaign in Kosovo.

"The War Powers Resolution makes clear that funding cannot and does not constitute authorization," Michael Glennon, a law professor at Tufts University and previous Senate lawyer who advised Congress on the law’s writing, told Foreign Policy. "The law was drafted with that specific argument in mind."

Although such an end run defies the spirit and letter of the War Powers Resolution, congressional funding for the Syrian opposition would surely build political support for military action in Syria. And for a president elected to extricate America from its wars in the Middle East, political support may be more important than sound legal footing.

"No president should have a blank check, and that when you are talking about hostilities, the president needs to come to Congress — now, in what form I’m not too worried about," Rep. Eliot Engel, a New York Democrat and a member of the House Foreign Affairs Committee, told Foreign Policy. "As long as there is consultation with Congress and that the president is coming to Congress asking for an assent, that’s good enough for me."

A vocal minority disagrees and wants to vote on the matter.

"I urge the president and my colleagues to resist the understandable temptation to cut corners on this process," Sen. Tim Kaine, a Virginia Democrat, said from the Senate floor Tuesday night. "There is no more important business done in the halls of Congress than weighing whether to take military action and send service members into harm’s way."

Rigell said that if Obama outlines a clear military strategy Wednesday night, he shouldn’t hesitate to ask for Congress’s approval.

"The president ought to use all of his persuasive abilities to develop a specific strategic objective and back it up with a defined military strategy to bring to Congress," he said. Doing otherwise will "not provide him with the moral authority that he would be buttressed with and fortified with if he knew the representatives of the American people were standing with him in this."

If the president pursues a more creative legal justification for striking Syria, he could lean on the 2001 Authorization for Use of Military Force (AUMF), the measure passed days after the 9/11 attacks that handed the executive branch wide-ranging authority to retaliate against al Qaeda and its associates. Although the Islamic State was once affiliated with al Qaeda, the group was expelled by Ayman al-Zawahiri, who objected to its brutal tactics. That has raised questions about whether the AUMF could be broadly interpreted to apply to a onetime al Qaeda franchise. The administration ironically relied on the AUMF to justify the recent strike against terrorist organization al-Shabab in Somalia, just four months after Obama said he wanted to repeal the law. 

Others have speculated that Obama could even use Congress’s authorization of military force against Iraq in 2002, which is still on the books, to authorize military operations. However, that measure authorized military force not on the Islamic State, which didn’t exist at the time, but on "Iraq."

Or Obama could deploy another leftover from the Bush administration: a wildly expansive interpretation of the president’s ability to make war. According to a legal rationale championed by right-wing lawyers under Bush, the president, in his role as commander in chief, retains the authority to launch preemptive strikes against threats to the United States.

Ruppersberger is "satisfied at this point" that the operation underway is authorized under Article II of the Constitution, but "longer-term" operations would have to be re-evaluated.

Obama appeared to explicitly repudiate that interpretation of executive power when he last contemplated launching military operations against Syria, that time against the government of Bashar al-Assad for using chemical weapons. "I’ve long believed that our power is rooted not just in our military might, but in our example as a government of the people, by the people, and for the people," Obama said in a 2013 Rose Garden address. "And that’s why I’ve made a second decision: I will seek authorization for the use of force from the American people’s representatives in Congress."

That Bush-era view of executive authority and dismissiveness toward Congress led Obama’s current secretary of defense, Chuck Hagel, then serving as a senator, to in 2007 entertain the notion of impeaching Bush.

The White House did not respond to repeated requests to elaborate on its legal justification for potentially expanding strikes against the Islamic State.

John Hudson contributed to this report.