Law professors justify Obama’s illegal wars; more fuel for the Constitution’s pyre

Summary: Today’s essay by David Cole looks at Obama’s justifications for the next phase of the long war. In a wider sense it shows how the role of professions changes as the Republic-that-once-was dies and the imperial New New America rises on its ashes. Today we look at attorneys, many finding careers serving the government — dissembling the Constitution word by word in service of the President. Justifying the President’s actions, no matter what they are. Dismantling the structure of international law America built after WW2, which we hoped would in part justify the blood shed. Once proud professionals, now they’re the equivalent of the crew at the end of a parade, cleaning up after the elephants.

It’s a widening rot. Our geopolitical experts justify our wars. Anthropologists betray their canons, studying foreign societies for our Army. Doctors aid torturers. Economists become cheerleaders for our central bank. it’s the smooth track to success in New America.

“Get busy and fix it up so that it’s legal, will you?” Kamens said.
“You know, Delos, it would be a lot more honest if you did it at the point of a gun.”

— Client to attorney conversation in Robert Heinlein’s “The Man Who Sold the Moon” (1939)

Contents

1. “Obama’s Unauthorized War”
2. Legal justifications for Obama’s illegal war
3. About the author
4. For More Information

“Obama’s Unauthorized War“

by David Cole, New York Review of Books
11 September 2014
Posted with their generous permission.

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In his address to the nation Wednesday night, President Barack Obama set forth a four-part strategy for dealing with the Islamic State in Iraq and Syria, otherwise known as ISIS or, in President Obama’s usage, ISIL. He spoke of continuing airstrikes in Iraq and extending them into Syria, training Iraqi forces and supporting Syrian rebels to fight ISIS, general counterterrorism operations, and humanitarian aid. But he did not put forth his strategy for dealing with the US Congress. And the Constitution demands that he obtain support from Congress if he wants to engage in what could potentially be a long war with a new terrorist group.

President Obama announced that he intends to carry out a sustained military campaign to “degrade and ultimately destroy” ISIS, a campaign that his own military has said could last many years; it is nearly thirteen years since we set out to degrade and destroy al-Qaeda, and there’s no end in sight yet. In his speech, President Obama avoided the word “war,” but that is the more common word for the kind of sustained military campaign he described. And under our constitution, the president cannot go to war without congressional approval except in narrow circumstances not present here.

Last year, when Obama was contemplating military strikes against the Assad regime in response to Assad’s use of chemical weapons against his own people, he put the question to Congress, as the Constitution requires. Americans had no appetite for fighting another war over what they viewed as someone else’s problems, and Congress declined to authorize military force. Properly, the president backed down, and instead entered a negotiation brokered by Russia that ultimately led to the elimination of Syria’s chemical weapons, without the use of force.

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This time, Obama has given no indication that he intends to seek Congress’s authorization for airstrikes. There has been some talk of obtaining approval to send troops to train Iraqi forces, but Obama apparently thinks he doesn’t need any authorization to drop bombs from the sky with the aim of killing human beings—even in a country, Syria, where he plainly will have no permission from the sovereign to do so. (Bombing ISIS in Syria would also violate international law absent approval of Syria or the UN Security Council, but that is a separate matter, and Obama said he intends to address the Security Council on this in the coming weeks.) On Meet the Press this Sunday, Obama claimed, “I have the authorization that I need to protect the American people.” The host, Chuck Todd, didn’t press him on where that asserted authority comes from. Congress certainly has not given it.

Under the Constitution, whether to use military force is Congress’s decision, not the president’s. The framers gave Congress the power “to declare war” and even to authorize lesser uses of force, through what were at the time called “letters of marque and reprisal.” John Yoo, who infamously sidestepped the prohibition on torture to give a green light to the US government to use waterboarding and to commit other war crimes, has argued that the president has unilateral authority to start wars. But that view, like Yoo’s interpretation of torture, has been roundly condemned by virtually all other scholars and lawyers beyond a select few of those who served in the Bush administration with him in the early days of the “war on terror.”

There is one situation in which the president can use military force without congressional authorization—when responding in self-defense to an attack or an imminent attack. But Obama has not made that argument in announcing the campaign against ISIS. As he said on Meet the Press, “I want everybody to understand that we have not seen any immediate intelligence about threats to the homeland from ISIL. That’s not what this is about.”

Of course, ISIS has made clear, through its own barbaric actions and statements, that it poses a threat to American lives abroad, even if it does not threaten American soil. Does that threat authorize the president to make a unilateral decision to use military force? A truly imminent threat of that nature conceivably could justify a short-term strike to thwart a specific risk. No one doubts that if a terrorist group has a US citizen hostage and threatens to kill him, the president has the constitutional authority to deploy military force if necessary to counter the threat. But that’s not what Obama is proposing. He is talking about a large-scale, long-term military offensive to “destroy” a group that now holds significant territory in two countries—a campaign that will involve a sustained series of airstrikes, not only in Iraq, a country that has requested our help, but in Syria, a country that has not and will not. Such a lengthy military intervention amounts to war, the very sort of engagement that the framers felt should be undertaken only if approved by the legislative branch.

According to an unnamed senior administration official, the Obama administration maintains that Congress’s authorization to use military force against those who attacked us on September 11, 2001, somehow empowers the president to wage war against ISIS. But this is a legal sleight of hand. While ISIS once had ties with al-Qaeda in Iraq, it has long since broken from al-Qaeda, and certainly cannot be said either to have attacked us on September 11, or to be a co-belligerent with al-Qaeda in that ongoing conflict. Nor does Congress’s 2002 authorization to use military force against Iraq constitute any sort of approval for this conflict, which is not against Iraq at all, but against ISIS, which is itself fighting Iraq. That the administration would advance such far-fetched interpretations of decade-old authorizations plainly intended for different purposes makes evident that it lacks any legitimate authority today.

What of the fact that, after the brutal beheadings of two American journalists, an overwhelming majority of Americans of both parties approve of a military response to ISIS? Or that no member of Congress has spoken out against military force, and many have castigated the president for not having already taken more decisive action? Does that political reality authorize the president to act unilaterally? No. The fact of broad public support—and apparently widespread support in Congress itself—only underscores the propriety of going to Congress.

What about the fact that the war will primarily be conducted by airstrikes and proxy forces? As we have seen, drones make it tempting to turn to military force, because one can kill at great distances without risking American lives. Does the fact that the president will not put “boots on the ground” except for indirect training and support make what he proposes any less a “war”? No. Just as ISIS is a “terrorist group, pure and simple,” as Obama claimed, bombing Syria is war, pure and simple. And war requires Congressional authorization.

Some have suggested that a military appropriation would suffice. But in the War Powers Resolution, Congress has already specified that appropriations are not sufficient to constitute authorization for war. A specific authorization, as Congress provided after September 11, is required. Such a step forces Congress to consider the scope of the enterprise, and to define its bounds. A general appropriation does not.

Of course, there is some risk that if President Obama requests approval for the air war he wants to undertake, Congress won’t give it to him. That seems a remote risk, in view of the overwhelming public sentiment that ISIS poses a threat to the United States. But in any event, that’s a risk the Constitution requires him to take.

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(2) Legal justifications for Obama’s illegal war

Some sensible words:

1. War Powers and the White House, Andrew Rudalevige (Prof of Government at Bowdoin College), blog of the Washington Post, 10 September 2014
2. Obama’s Betrayal of the Constitution, Bruce Ackerman (Prof of law and political science at Yale), op-ed in the NYT, 11 September 2014

Debate about Obama’s schenaggens, from the Just Security website. Like reading about medieval theologians arguing how many angels can dance on the head of a pin.

1. International Law on Airstrikes against ISIS in Syria, Ryan Goodman, 28 August 2014
2. What Does the “Unwilling or Unable” Standard Mean in the Context of Syria?, Michael Lewis (), 12 September 2014
3. International Law – and the Unwilling and Unable Test – for US Military Operations in Syria, Ryan Goodman (Prof at NYU School of Law), 12 September 2014
4. Does the Unwilling/Unable Test Hang on Territorial Control?: A Response to Michael Lewis, Jonathan Horowitz (Open Society Justice Initiative), 12 September 2014
5. A Response to Bruce Ackerman’s NYT Op-Ed on the President’s War Powers, Shalev Roisman (Acting Asst Prof at NYU School of Law), 12 September 2014

(3)  About the author

David Cole is a Professor of Law and Public Policy at the Georgetown University Law Center.

He has written several books, including The Torture Memos: Rationalizing the Unthinkable (2009), Less Safe, Less Free: Why America Is Losing the War on Terror (with Jules Lobel, 2007) and Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (2003).

A few of his many articles at the NYRB:

1. Can Congress Rein In the Spies?, 30 July 2014 — “If Congress enacts Senator Leahy’s bill to rein in the NSA, it will mark the most significant reform of US intelligence gathering since the Foreign Int, 29elligence Surveillance Act was enacted in the 1970s.”
2. The Drone Memo: Secrecy Made It Worse, 24 June 2014 — Now that we can finally see the Justice Department memo authorizing the killing of a US citizen in Yemen, the biggest question is why the Obama administration fought to keep it secret. The memo does more to help than to harm the administration.
3. ‘We Kill People Based on Metadata’, 10 May 2014 — A bill to rein in NSA spying on Americans’ metadata is an important first step, but it addresses only one part of the NSA’s surveillance activities.
4. How Many Have We Killed?, 29 April 2014 — If the US government’s targeted killings are lawful, we should have no hesitation in making them public. Surely the least we can do is to literally count and report the lives we’ve taken.

(4)  For More Information

(a)  Posts about the role of professionals in New America as servants of the State:

1. Reading about American torturers is a bummer. Let’s close our eyes and pretend it didn’t happen, and will not happen again., 22 March 2010
2. Conservatives tells us not to worry about the Constitution’s death, 23 March 2011
3. We are alone in the defense of the Republic, 5 July 2012 — Imperial duties supersede professional ethics in New America
4. Is There Hope for the Rule of Law in America?, 10 November 2012

(b)  Posts about propaganda, molding our minds:

1. Successful propaganda as a characteristic of 21st century America, 1 February 2010
2. A note about practical propaganda, 22 March 2010
3. The similar delusions of America’s Left and Right show our common culture – and weakness, 26 March 2010
4. Programs to reshape the American mind, run by the left and right, 2 August 2010
5. The easy way to rule: leading a weak people by feeding them disinformation, 13 April 2011
6. Facts are an obstacle to the reform of America, 20 October 2011
7. Our minds are addled, the result of skillful and expensive propaganda, 28 December 2011
8. Who lies to us the most? Left or Right?, 25 February 2013
9. We can see our true selves in the propaganda used against us, 14 May 2013
10. A nation lit only by propaganda, 3 June 2013
11. The secret, simple tool that persuades Americans. That molds our opinions., 24 July 2013

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