Hawkish Obama in Iraq

Some experienced commentators in the American media have been wondering if President Barack Obama is turning into George W. Bush right in front of our amazed eyes. The right-leaning TV channel Fox News has taken great joy in comparing Obama’s speech in front of NATO, where he justified his decision for military intervention, to the speech that George W. Bush made in the same building, justifying the same action. And indeed, both presidents evoked similar, apocalyptic, morally grandiloquent sentiments. Furthermore, the gray marble backdrop of the photo at the stand shows the two presidents dressed in exactly the same way.

But the criticism Obama faces, as well as the support for his decision, comes from all angles. They are strategic, military or constitutional; even all three at the same time.

Constitutionally, the debate focuses on the range of powers that the president holds to deploy military forces without any formal and grand declaration of war. As it is in all democracies, the responsibility of declaring war is a power shared between the legislative and the executive. However, how far can the president use his simple authority as commander-in-chief without having to ask Congress? The last war that was constitutionally declared by Congress was World War II. Every war America has been in since then has been without a declaration as prescribed by the constitution.

Nevertheless, the legislature has not completely moved aside. The Vietnam War was legally justified following the Gulf of Tonkin Resolution, voted for by the two chambers after attacks by North Vietnam on two American destroyers in Vietnam waters; doubts were later raised about these attacks, with some suggesting they never occurred at all. This resolution was considered as the “functional equivalent” of a declaration of war and thus gave the president authority, “as commander-in-chief, to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression.” Many members of Congress later regretted their vote, as President Johnson took the text very loosely to mean he could intervene to such an extent that would constitute a major war. The Supreme Court, which exercises constitutional authority, refused to declare the war unconstitutional, despite the petitions it received. The court did not dare intervene once the country’s military was significantly involved.

This presidential misdemeanor led Congress to take back control by adopting the “War Powers Resolution” in 1973, in an attempt to prevent future presidents bypassing the legislature when deploying military forces. This resolution states that the president must notify Congress within 48 hours of military engagement, and must then receive authorization for armed forces to remain on foreign soil longer than 60 days. The president is then given a 30-day withdrawal period if the legislature votes to end the engagement.

A president can therefore freely deploy armed forces for 90 days before needing to either request permission to continue, or declare war. Whether the War Powers Resolution is constitutional remains disputed, with some claiming that the law encroaches upon the president’s powers as commander in chief of the Armed Forces. Some recent presidents have deployed forces without implementing this resolution, as was the case with President Clinton, in 1999, during the bombing campaigns in Kosovo. Congress disapproved, but did not resort to any legal proceedings against the president.

No Congress has wanted to add a constitutional crisis to that of a military deployment one. It also appears that the legislature sometimes prefers to not be involved in a decision involving the use of force. But as a general rule, the presidents have, since the Vietnam War, found it a wise political move to consult Congress, in one way or another. President Obama submitted a decision to Congress to strike Bashar al-Assad’s regime following his use of chemical weapons against his own people; however, this time, the White House was in all likelihood hoping for a no vote in order to get itself out of the strategic quagmire. The executive passed on the hot potato to the legislature. However, when Barack Obama didn’t believe he needed to immediately ask for legislative backing for his intervention in Iraq and Syria, he was at once accused of inconsistency and hypocrisy. On Sept. 23, Mr. Obama sent a letter to the two chambers, in which he informed them of the strikes which had taken place the night before against targets in Syria, and invoked, among others, the War Powers Resolution.

In order to not be completely constricted by the resolution, he also used the constitutional powers of the commander in chief of the armed forces, along with the Sept. 18, 2001 law “Authorization for Use of Military Force,” which had given George W. Bush the free reign to pursue al-Qaida and any other affiliated terrorist organization. But since the Islamic State is not associated with al-Qaida, and is perhaps even at odds with it, some legal experts do not consider this law applicable to these strikes. The case of the Khorasan group, a ultra-radical Islamist group, is less ambiguous. Barack Obama has also invoked the aforementioned “Authorization for Use of Military Force against Iraq Resolution of 2002” law. But since the current intervention is not against the Iraqi state as such, its relevance has also been questioned.

Barack Obama’s position is particularly surprising considering that during his presidential campaign, he very clearly stated that the president cannot undertake a unilateral war without Congress’s approval. Ultimately, any military deployment remains extremely political. The legal and constitutional arguments, regardless of their relevance or ambiguity, are there to support the president’s decision. The essential source of legitimacy resides in the debate and dialogue between the elected powers and the people. All presidents have been more or less concerned by the need for this public discussion.