Richard Epstein in the US: Declaring War on ISIS

There are currently two battles going on in the effort to—pick your favorite verb—contain, degrade, or destroy the new Islamic State, or ISIS, which has cut a wide swath through much of Iraq and Syria. The first is the military battle. ISIS is not just an occupier of territory, but a terrorist operation. It has slaughtered untold thousands of innocent persons and threatens to bring terror far outside the Middle East. Yet the American response, which I regard as woefully insufficient, has been to fight a prolonged war solely from the air, which may stem further advances, but cannot dislodge ISIS from its current strongholds.

Then there is the constitutional battle at home. Does the President have the power to wage war on ISIS unilaterally, or must he go to Congress for the same kind of approval that George W. Bush received when he entered into combat over a decade ago in both Iraq and Afghanistan?

On this issue, the bulk of consensus, from both the left and the right, has been strongly against the President’s decision to proceed without congressional authorization. The argument has a lot of legal punch. It is pointless to say, as the President’s Office of Legal Counsel said in connection with the Libyan intervention of 2011, that what turned out to be a prolonged military intervention did not count as a war. Yes, we were shooting at enemy forces from the air, and they were not shooting back from the ground, but still: One-sided wars are still wars, and wars are wars whether they are over quickly or drag on indefinitely.

With Libya, the President tried to avoid the requirements of the War Powers Resolution of 1973 (WPR), which became law when both the House and the Senate overrode the veto of then–President Richard Nixon. On that topic, of course, calling the law a resolution is tangible evidence of its uneasy legal status, given that an indignant Congress chose unilaterally to impose its will on a reluctant President. One does not have to be a constitutional purist to think that dressing up ordinary legislation as a resolution ,is not the appropriate way to alter the constitutional distribution of powers between the President and the Congress.

Try as it did, the WPR did not offer a clean solution to the difficult problem of when the President was authorized to declare war. For starters, it had to give the President sufficient powers to respond to “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” Not included on this list is the beheadings by ISIS of American journalists overseas. Nor does the resolution appear to give the President unilateral authority to respond to a threatened attack, no matter how imminent or serious. On this point, the WPR amounts to legislative overkill, more concerned with the distribution of powers within government than with the security of the nation as a whole. The ability to respond to national emergencies should not be so narrowly defined, for it hardly makes sense to force the President to stand idly by, knowing that when some actual attack comes it will be far more difficult to fend off. Exactly how far anticipatory defense should be allowed is, of course, a question that has been debated for centuries, which is why so many hard questions of constitutional law dissolve, unavoidably, into an uneasy mixture of judgment, comity, and self-restraint.

The situation does not get any easier with the other two central provisions of the WPR, which, in the absence of a declaration of war or the authorization for the use of military force, limits to 60 days the period that American forces can be committed to war, with a grace period of 30 days to allow for their orderly withdrawal. But again, note the incongruity. Sixty days can be enough time to allow for the completion of a military action. Yet, by the same token, 60-days may not be enough time, which puts the President in an impossible position if forced to begin a withdrawal of forces when the military conditions on the ground do not permit it.

In principle, the President might be able to declare a second emergency to restart the clock, with due notification to Congress. Such decisions of course could be mere ruses to justify lawless acts of the President, or they could be prudent responses to unanticipated reversals in the field or to the entry of a new nation or group into the conflict. Yet the WPR contains no device that allows for the resolution of these disputes. The courts have, of course, decided to wash their hands of this entire matter, which is for the best, because judicial proceedings move at a glacial pace relative to the genuine difficulties that take place on the ground.

It does not take much imagination to see the serious limits of the WPR in dealing with the current ISIS situation. Matters only get worse if one places the WPR in the context of foreign diplomatic efforts. It is settled on all sides that only that President is capable of entering into negotiations with foreign nations over the formation of alliances. Congress could never speak with one voice on the question. Right now, President Obama is attempting negotiations with a large number of nations who are skittish about their own precarious positions. One thorny question is how to get other nations to commit ground troops when we are unwilling to commit our own. A second is to figure out how to intervene in the Syrian morass without doing more harm than good, given the shifting roles of ISIS, the Assad government, and the Khorasan group, which may or may not be affiliated with al-Qaeda.

Against this background, critics of the President are having nothing short of a field day. Perhaps the most outspoken critic is Yale Law School’s Bruce Ackerman who recently denounced both the President and the Congress. The congressional lawmakers, he laments, left town for the mid-term election campaign “without fulfilling their most solemn duty to the American people,” which was to face up to their obligations to act pursuant to their authority under the WPR. The President, he asserts, did no better in failing to justify his power to extend the fight against ISIS into Syria. Both Ackerman and others have taken great pains to explain why the 2001 Authorization for the Use of Military Force (AUMF) does not apply to ISIS because “it was not an organization that planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” After all, ISIS was a competitor to al-Qaeda, and not its extension.

In principle, I am pleased to see the powerful chorus of criticism against the President’s power grab. Yet I am also relieved that the WPR will fail to achieve its stated goal of forcing Congress to act or getting the courts involved if it does not.

On the positive side, there is a desperate need to prevent any president from initiating major conflicts without a congressional go-ahead. George W. Bush was right to seek authorization from Congress to initiate the attacks in Iraq and Afghanistan given that the escalation started from a zero baseline. The clear break between the status quo ante of non-intervention and some future major conflict made it sensible and possible for Congress to act.

The situation today is, alas, much messier. It is very hard to distinguish those actions in Syria that are not spillovers from the Iraq War. It is all too easy, unfortunately, to spend lots of time explaining the need for congressional action, but it is far harder to justify a nation sitting idly by while mass slaughter takes place overseas that poses a serious threat to the United States and its allies. It is equally difficult to expect any president, including one as indecisive as Barack Obama, to negotiate delicate agreements with reluctant friends and possible enemies, unless he can make good on his deals, which could not happen if all potential alliances were subject to congressional approval sometime down the road. Nor does it make sense to block moves against ISIS because it has broken with al-Qaeda. It is all too possible that the two organizations may, or perhaps have, established some accommodation that might bring the AUMF back into play.

Everyone, I think, senses this imbalance. In one unguarded remark, Ackerman notes that a full-scale attack on Obama’s new military intervention would “deeply erode the constitutional legitimacy of the ongoing ISIL campaign.” Ackerman remarks that in the 40 years since the WPR’s enactment, Congress has never attempted the “extraordinary procedure” of following the complex requirements of the WPR to the letter. What he does not do is to ask why not. The answer, I fear, is that the WPR procedures are just too cumbersome today, which both the Congress and the President realize.

The constitutional landscape would be very different if President Obama had pushed ahead in the face of an explicit congressional command to disengage in Iraq and Syria. But Congress won’t take this step so long as the risk of attack from ISIS to United States citizens at home and abroad is real. It will not undertake any action to undermine the military and faltering rescue efforts in the Middle East. And it need not take these actions precisely because an entire nation is keeping pulse on the current events. There is no evident abuse of power because the political check has held.

It is precisely because of the ambiguous nature of the entire foreign enterprise that we should all be grateful that scholars like Ackerman are willing to stand up to both the President and Congress. Paradoxically, they should fail in the short run because their greatest contribution lies in the long run, by helping to establish a workable political equilibrium in which Congress holds its legal fire in the midst of tumults in which it can do no good, but remains ready to stop fresh acts of presidential adventurism.

I am certainly no unqualified defender of presidential power. Indeed, I still think that President George W. Bush improperly expanded his position as Commander-in-Chief to run around the congressional limitations contained in the Foreign Intelligence Surveillance Act of 1978. But surveillance and military operations work on different time scales, a fact which is fatal to ignore. My late father always said that in times of crisis “we have to learn to rise above principle.” Sadly, this is one of those occasions. 

Richard A. Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, is the Laurence A. Tisch Professor of Law, New York University Law School, and a senior lecturer at the University of Chicago.