Having hoped to rest his foreign-policy legacy on ending the wars in Iraq and Afghanistan, President Obama is now struggling to find a legal justification to drop bombs in Iraq and Syria. He has promised not to get dragged into another ground war in Iraq in his efforts to destroy the Islamic State (IS).

While George W. Bush’s wars were legally questionable under international law, he sought and obtained Congressional authorization to invade Afghanistan in 2001 and Iraq in 2002. Josh Rogin of The Daily Beast explained yesterday that Obama’s plan has no legal basis under international law, but the administration has also not yet formulated a convincing argument on the domestic legality of military operations in Iraq and Syria. 

Since the first announcement of air strikes on August 7, the White House’s explanation of its legality authority under domestic law has shifted three times, with different statutes in each instance. 

Article II

At the height of the Yazidi crisis on Mount Sinjar in August, Obama authorized targeted airstrikes against IS in Iraq. Though partially an act of humanitarian intervention, he emphasized the safety of U.S. diplomatic personnel in Baghdad and Erbil to justify the strikes.

He did not ask for permission from Congress, relying on Article II Commander in Chief Powers in the Constitution, which allows the president to initiate military action if there is a strong U.S. national security interest or if the military operation is limited in nature, scope, and duration. Obama invoked this authority for the 2011 to conduct airstrikes in Libya without Congressional authorization.

2001 AUMF

Last week, Obama announced a continued air campaign against IS in Iraq, which will likely expand into Syria. He admitted that this would be a long-term military endeavor. With an operation that is decisively less limited in nature, scope, and duration, it would be hard to use Article II as a legal justification. During a background briefing before the president’s speech, senior White House officials said that he still did not need Congressional approval because airstrikes on IS in any country would be covered under the 2001 Authorization for the Use of Military Force (AUMF).

Congress passed the 2001 AUMF one week after September 11, giving the president the authority to use force against those who had planned the attacks—which was subsequently interpreted to include Al Qaeda, the Taliban, and its “associated forces.” Because ISIS fighters originated from Al Qaeda in Iraq, Obama is choosing to treat them as associated forces. However, Al Qaeda formally cut ties with IS in February and clashes occur regularly in Syria between IS and an Al Qaeda affiliate called Jabhat Al Nusra.

IS did not even exist on September 11, 2001, and they are now in open conflict with the group that has claimed responsibility for the attacks. Using the 2001 AUMF to target a completely separate group 13 years later is, at best, a legal stretch. “If this remarkably loose affiliation with Al Qaeda brings a terrorist organization under the 2001 law, then Congress has authorized the President to use force endlessly against practically any ambitious jihadist terrorist group that fights against the United States,” wrote Jack Goldsmith, a former Defense Department legal adviser. “The President’s gambit is, at bottom, presidential unilateralism masquerading as implausible statutory interpretation,” he added. 

2002 AUMF

Two days after Obama’s speech, The New York Times posted an explanation from the White House explaining that they also believed the 2002 AUMF could provide domestic legal authorization. The most obviously applicable language in the 2002 AUMF is:

The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to…defend the national security of the United States against the continuing threat posed by Iraq.

Here, there is an issue of congressional intent. Passed by Congress in the lead-up to the 2003 Iraq invasion, this authorization was clearly directed at the threat posed by Saddam Hussein. As pointed out by Wells Bennett of Lawfare, the statute primarily points to examples of wrongdoing by Saddam Hussein as reasons why the use of force is legitimate: Iraq’s invasion and occupation of Kuwait and its nuclear and chemical weapons program. But the vague wording technically allows Obama to interpret it as an authorization to use force against any threat emanating from Iraq, including IS. And “because ISIL operates freely across the Iraqi-Syrian border,” said Defense Secretary Hagel in a testimony to the Senate Armed Services Committee this morning, “our actions will not be restrained by a border in name only.”

Beyond the administration’s questionable reading of the statute, the 2002 AUMF is politically disastrous for the Obama administration. It connects Obama’s intervention to Bush’s Iraq war, which is something he has been at pains to avoid. Less than two months ago, National Security Advisor Susan Rice wrote a letter to House Speaker John Boehner, urging the House to repeal the 2002 AUMF. “With American combat troops having completed their withdrawal from Iraq on December 18, 2011, the Iraq AUMF is no longer used for any U.S. government activities and the Administration fully supports its repeal. Such a repeal would go much further in giving the American people confidence that ground forces will not be sent into combat in Iraq,” she wrote.

In Friday’s email to the New York Times, White House officials insisted that they still support repealing the 2002 AUMF, even as they are currently presenting it as legal justification to begin another military operation.

“The President would welcome Congressional action to support the Administration’s military efforts against ISIL,” the email continued. “But to be clear, the President does not need a new authorization in order to continue to take action against ISIL.”

The House is expected to vote on authorizing $500 million for the military to train and arm Syrian rebels this week, but there are currently no plans for a broader vote on using military force in Iraq and Syria before this session convenes. Few lawmakers want to make the politically contentious decision before midterm elections in November.