Wars (That Aren’t Wars) Declared with Questionable Legal Authority

The White House has not sought the approval of Congress to attack the Islamic State in Syria and refuses to qualify the military operation as a war.

The fact that legality or illegality is determined by expert jurists but avoided by senators and legislators with partisan interests could be summed up by the much used Capitol Hill phrase ‘politics as usual.’ Equally, the actual limitation—or not—of the president’s power to declare war does not so much respond to the spirit of the law as to the current political moment. That Congress is neglecting its constitutional responsibility and abandoning Washington in order to avoid a vote that may damage politicians seeking reelection on November 4 is a prime example of this.

The White House begins to stammer uncontrollably when it tries to explain the source of the legal authority claimed by Barack Obama to attack Syria and the Sunni radicals of the self proclaimed Islamic State and hides behind the Authorization for the Use of Military Force (AUMF) of 2001 and 2003.

In the first case, then President George W. Bush had the authority to act against “nations, organizations or people that helped, committed or planned the terrorist attacks that took place on 9/11, or those who harbored these organizations or people” In the second, Bush was given the green light to declare war in order to “defend the national security of the U.S. against the continued threat posed by Iraq,” then ruled by Saddam Hussein.

Obama has not sought the authorization of Congress to initiate what sounds like a war, looks like a war and creates casualties like a war, regardless of how much the White House refuses to use the term. By adding Khorasan to the attacks, the enemies of the White House now seem to be two instead of one. Under the War Powers Act— that was approved by both houses of Congress in 1973 following the discovery that Richard Nixon had authorized the covert bombing of Cambodia—the Democratic administration has notified senators and representatives of their military action in Iraq and Syria, but this is no substitute for the authority that, as established by the founding fathers when they granted Congress the ability to declare war- should be a necessity in order to declare war.

The White House, this White House, has initiated a military attack against a nation just as it did with other presidents: Bill Clinton in 1991 in Serbia, George H.W. Bush in Panama in 1989, and Ronald Reagan in Grenada in 1993 — and Obama in 2011 in Libya. In all previous cases, including the Korean War, Congress had no part in the decision.

What the White House has not done— which would have been much simpler, according to legal experts on executive power, or at least would have served as a cover-up— is to shield itself behind Article II of the Constitution, the president’s power to declare war, although it would have involved an association with the bad decisions made by the previous administration.

In terms of international legality, the U.S. attended the 69th United Nations General Assembly this week with one action already carried out: the bombing of Syria without the consultation of the Security Council. The bombing of Iraq does not count, as the government of this country requested Washington’s assistance.

In a letter to the secretary-general of the U.N., the U.S. ambassador to the organization, Samantha Power, cites Article 51 of the United Nations Charter as a guarantee of legal authority to attack Syria, given that it allows self-defense in the face of attack and that the regimen of Bashar Al Assad is not responding to the threat posed by the Islamic State. “States should be able to defend themselves when they are facing a case where the government of the state where the threat is rooted is unable or does not wish to prevent it,” Power said. “In this way, the U.S. has begun the necessary and appropriate military action in Syria to eliminate the threat [of the Islamic State] in Iraq.”