Obama’s ISIS War is Not Only Illegal, it Makes George W. Bush Look Like a Constitutional Scholar

Rudderless and without a compass, the American ship of state continues to drift, guns blazing.

- Andrew J. Bacevich, the Boston University political science professor and former Army colonel 

who lost his son in the Iraq war in 2007, in a recent Reuters article.

By Michael Krieger: I have spent the past several days outlining my deep concerns about the “ISIS crisis” and Obama’s willingness to employ extreme propaganda in order to once again embark on another poorly thought out military campaign here and here. What I have also come to realize is that his latest war plan is brazenly illegal and unconstitutional.
While critics have been questioning the legality of U.S. military campaigns consistently since the end of World War II, one trend has become increasingly clear. With each new President and each new war, we have witnessed those who hold the office act more and more like dictators, and less and less like constitutional executives.
One very important, and up until recently, overlooked point about Obama’s latest “war on ISIS” is that this is not at all just more of the same. This crosses yet another very important line of shadiness, and if we as as American public allow him to do so, we will suffer grave long-term consequences to our economic future as well as our liberties. This is very serious stuff.

No one has outlined this point better than Bruce Ackerman, a professor of law and political science at Yale, in yesterday’s New York Times op-ed: Obama’s Betrayal of the Constitution. He writes:

BERLIN — PRESIDENT OBAMA’s declaration of war against the terrorist group known as the Islamic State in Iraq and Syria marks a decisive break in the American constitutional tradition. Nothing attempted by his predecessor, George W. Bush, remotely compares in imperial hubris.

Mr. Bush gained explicit congressional consent for his invasions of Afghanistan and Iraq. In contrast, the Obama administration has not even published a legal opinion attempting to justify the president’s assertion of unilateral war-making authority. This is because no serious opinion can be written.

This became clear when White House officials briefed reporters before Mr. Obama’s speech to the nation on Wednesday evening. They said a war against ISIS was justified by Congress’s authorization of force against Al Qaeda after the Sept. 11, 2001, attacks, and that no new approval was needed.

But the 2001 authorization for the use of military force does not apply here. That resolution — scaled back from what Mr. Bush initially wanted — extended only to nations and organizations that “planned, authorized, committed or aided” the 9/11 attacks.

 Not only was ISIS created long after 2001, but Al Qaeda publicly disavowed it earlier this year. It is Al Qaeda’s competitor, not its affiliate.

Mr. Obama may rightly be frustrated by gridlock in Washington, but his assault on the rule of law is a devastating setback for our constitutional order. His refusal even to ask the Justice Department to provide a formal legal pretext for the war on ISIS is astonishing.

Senators and representatives aren’t eager to step up to the plate in October when, however they decide, their votes will alienate some constituents in November’s midterm elections. They would prefer to let the president plunge ahead and blame him later if things go wrong. But this is precisely why the War Powers Resolution sets up its 60-day deadline: It rightly insists that unless Congress is willing to stand up and be counted, the war is not worth fighting in the name of the American people.

But for now the president seems grimly determined to practice what Mr. Bush’s lawyers only preached. He is acting on the proposition that the president, in his capacity as commander in chief, has unilateral authority to declare war.

In taking this step, Mr. Obama is not only betraying the electoral majorities who twice voted him into office on his promise to end Bush-era abuses of executive authority. He is also betraying the Constitution he swore to uphold.

Think about this for a second. Barack Obama is using the 2001 Authorization for Use of Military Force (AUMF), which allowed for military action against “nations and organizations that planned, authorized, committed or aided the 9/11 attacks.” ISIS wasn’t even a twinkle in Abu Bakr al-Baghdadi’s eye back in September 2001. Even more stunning, ISIS and al-Qaeda more closely resemble enemies than allies. Yet this doesn’t seem to affect Nobel Peace Prize winning Barry Obama’s war planning. You can’t get much more insane and Orwellian than that.

Who cares right? This won’t ever affect you. So what if some bombs fall on innocent Arab civilians? Wrong.
One of the most terrifying aspects of this whole war push if Obama is able to pull it off, is that the reasoning (or lack thereof) could ultimately be applied to the detention of U.S. citizens indefinitely without a trial.
Yes, what I am referring to is the National Defense Authorization Act, or NDAA, which allows for the indefinite detention of American citizens without a trial. I covered this frequently several years ago when Chris Hedges and others were suing the Obama Administration regarding the constitutionality of this law. In fact, one of my most popular posts ever was, NDAA: The Most Important Lawsuit in American History that No One is Talking About.
One of the ways in which the U.S. government has defended the NDAA is by saying it can only be used against “a person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.” Glenn Greenwald noted in Salon in his, Three Myths About the Detention Bill, that:

Section 1021 of the NDAA governs, as its title says, “Authority of the Armed Forces to Detain Covered Persons Pursuant to the AUMF.”  The first provision — section (a) — explicitly “affirms that the authority of the President” under the AUMF  ”includes the authority for the Armed Forces of the United States to detain covered persons.” The next section, (b), defines “covered persons” — i.e., those who can be detained by the U.S. military — as “a person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.” 

Notice that the above says “pursuant to the AUMF,” which is the exact law the Obama Administration is using to justify his latest war. If he is able to start a war with ISIS based on the AUMF, despite the fact that ISIS and al-Qaeda are not allies at all, he or a future President could similarly use the AUMF and the NDAA to imprison anyone, anywhere for an indefinite amount of time based on the same absurd non-claim.
Let this all sink in for a second. Do you still support these ISIS strikes?
Tell this clown to go to Congress or get back to the golf course.


In Liberty,
Michael Krieger

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