American bombs are once again falling in Iraq. After the Islamic State’s horrifyingly brutal offensive routed Kurdish forces in the north, President Barack Obama finally felt he had no choice. The humanitarian imperative and the recognition that we couldn’t again abandon our loyal Kurdish allies finally won out. On Thursday he authorized the use of air power to defend the Kurdish capital of Erbil, and just hours ago, American forces acted on that authorization.
But presidential action must have a basis in the law, and no such action requires more careful justification than the use of lethal force. Obama's rationale for Friday's strikes was that “terrorist forces threaten our personnel or facilities” and particularly our consulate in Erbil, but that's disingenuous: The primary purpose of these strikes is not the defense of Americans, but a humanitarian and geopolitical necessity—to draw a line in the sand against a marauding army. The administration’s refusal to say so is based in an understandable fear of unencumbered presidential power, but its creative legal gymnastics ultimately harm the rule of law.
Just two weeks ago, National Security Advisor Susan Rice rejected the 2002 Iraq-specific Congressional authorization as irrelevant and called for its repeal. Now as well, “senior administration officials” are maintaining that this Bush-era Iraq authorization has no role in the current round of targeted strikes. And most legal experts have argued that ISIS is simply too removed from Al Qaeda to rely on the broader post-9/11 congressional authorization that allowed President Bush to invade Afghanistan and that has justified our ongoing strikes against Al Qaeda affiliates worldwide. Without any specific congressional authorization, this leaves the president with only his core prerogatives under Article 2 of the Constitution—those actions he can justify under the assertion that “the President shall be commander in chief of the Army and Navy of the United States.” And according to a senior administration official at last night’s “background briefing,” the constitutional basis is precisely what’s at play: “[W]e believe the President has the authority under the Constitution as Commander-in-Chief to direct these actions, which are consistent with this responsibility to protect U.S. citizens and to further U.S. national security and foreign policy interests.”
The problem, however, with relying on the Constitution alone is that this constitutional power is vague and open-ended. What exactly can’t the president order under his authority as commander-in-chief? Especially after the Bush presidency’s extreme claims of executive war powers, Obama and many of his legal advisors are wary of relying on this vague and unrestricted constitutional power. If anything, they would like to see it clearly limited and defined. So the administration is caught in a dilemma: as Islamists butcher minorities in Iraq, it sees a moral and humanitarian imperative to act. But without specific congressional permission, a purely humanitarian intervention would set a virtually open-ended precedent for an American president to act militarily anytime, anywhere.
We’ve seen the Obama administration torn apart by this dilemma before, and we’ve seen the legal gymnastics used to escape. In Libya, Obama could avoid the humanitarian precedent by relying on the national security import of U.N. credibility. After all, it was President Harry Truman who first argued that the commander-in-chief had the constitutional authority to protect “the continued existence of the United Nations as an effective international organization.” So after the U.N. Security Council authorized force in Libya, the president could argue he was acting in defense of a vital American interest: Security Council credibility. And in the chemical weapons debacle in Syria, we saw the president seesaw between a desperate appeal for congressional support on the one hand, and explanations about the national security importance of international norms against chemical weapons and a commander-in-chief’s need to draw “red lines” on the other. All of this was in the service of avoiding a constitutional precedent for a unilateral humanitarian intervention. But in Iraq today, none of those rationales apply.
Even a cursory reading of his statement last night makes clear that the humanitarian interest is secondary. In last night’s statement, the president opened by explaining that he had authorized two separate operations in Iraq: “targeted airstrikes to protect our American personnel, and a humanitarian effort to help save thousands of Iraqi civilians who are trapped on a mountain without food and water and facing almost certain death.” When discussing military action, he repeatedly emphasized that the Islamic State has “neared the city of Erbil, where American diplomats and civilians serve at our consulate and American military personnel advise Iraqi forces.” For the Americans, targeted strikes on ISIS; for the Kurds and Yezidi, food and water. It is only seven paragraphs in, after forceful assertions that “the United States cannot and should not intervene every time there’s a crisis in the world,” that he explains that some targeted strikes might also be warranted to break the siege on “Mount Sinjar and protect the civilians trapped there.” So the humanitarian justification for military force is almost an afterthought, requiring hemming, hawing, and apology.
In the last few hours, that “American self-defense” justification has become even more pronounced as military and diplomatic spokespeople repeatedly emphasize the Islamic State’s proximity to American citizens as they announce American strikes. The reason for emphasizing this narrow argument is clear: Obama is seeking to avoid an overly broad constitutional precedent that could lead to a future presidency run amok. Constitutionally, Obama feels comfortable with unilateral presidential action to defend Americans, but not American values. He has justified these strikes accordingly.
But the administration’s reasoning is both deceptive and narrow-minded. If the defense of the U.S. personnel were truly our primary goal, we could simply withdraw our diplomats and advisors from harm’s way. Indeed, this is precisely what we would do in most other embassies and consulates if fighting neared them. The decision to remain and fight is a choice, and a noble one. But when any reasonable observer can figure out that the president’s primary motivation here is not precisely what he claims, he has harmed the very rule-of-law he seeks to promote.
Obama's current framing also reflects a narrow conception of American interests, and the relation of these interests to our values. The decision to stand and fight is an active humanitarian and political decision. It is based in the understanding (an understanding that the president himself acknowledged last night, later in his statement when he finally explained that “when we face a situation like we do on that mountain… and when we have the unique capabilities to help avert a massacre, then I believe the United States of America cannot turn a blind eye”) that America’s awesome military power comes with the responsibility to act to prevent catastrophic acts of evil. And it also recognizes that America’s place in the world means our interests and values are not easily separated. A world in which ethnic minorities are annihilated and our key allies are overwhelmed is a world less safe for America. But the administration’s decision to base our intervention on the protection of American personnel obscures that truth. And it is a truth the American people may need to hear clearly.
In the midst of military action, Obama’s impulse to return war-making powers to Congress is admirable. And his commitment to restraining the unchecked military authority of the presidency is understandable. But when those commitments lead him to misrepresent his motivations and priorities to the American people, however slightly, he is making a mistake. We should be clear-eyed, and proud, about what this intervention is and on what legal basis it stands: This is an intervention to protect minorities and allies against the advance of a genocidal enemy. We are intervening in defense of sacred American values that have become inextricably bound up with American interests. Without the time for congressional authorization, Obama has ordered that intervention unilaterally. He need apologize for none of that.