Friday, September 12, 2014

Obama's Unconstitutional War

Bruce Ackerman

There wasn't enough space on the New York Times' op-ed page for me to elaborate a key legal issue in my critique of Obama's unilateral declaration of war against ISIS. My essay emphasized that in 2001 Congress rejected President Bush's initial demand for sweeping powers to launch a world-wide war on terror, and only authorized the use of force against groups and countries associated with “the terrorist attacks on September 11th.” But I didn't have room to explain the full significance of point.
The president initially demanded authority “to deter and preempt any future acts of terrorism or aggression against the United States.” (My emphasis). If Congress had accepted this language, President Obama’s claim that his war on ISIS was authorized in 2001 would have been on solid ground. But Congress refused precisely because it wanted to force future Presidents to return to the House and Senate for targeted approval of further military initiatives. 

 David Abramowitz makes this plain in a contemporaneous essay in the Harvard International Law Journal. (See "The President, the Congress, and the Use of Force, 43 Harv. I. L. J. 71 (2002). He was chief counsel of the House Committee on International Relations at the time, and explains Congress’ rationale for rejecting President Bush’s initial demand in a particularly cogent fashion:  “Given the breadth of activities potentially encompassed by the term ‘aggression,’ the President might never again have had to seek congressional authorization for the use of force to combat terrorism.” In claiming that Congress’ authorization of force against Al Qaeda supports his war against ISIS thirteen years later, President Obama fails to confront Congress’ self-conscious refusal  to grant the commander-in-chief any such power to launch future preemptive campaigns.  terror.

At the present time, the White House has failed to publish an opinion supporting the Administration’s current interpretation of the 2001 statute. If the Office of Legal Counsel or the White House Counsel does so in the future, it is imperative for it to explain how the Administration's current open-ended interpretation is compatible with Congress’ original refusal to grant presidents a free-hand to wage preemptive war against future terrorist threats.


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