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.