NY Times Editorial Board: Congress seems willing to abdicate one of its most consequential powers: the authority to declare war without the people's consent

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9/11/14, "Legal Authority for Fighting ISIS," NY Times Editorial Board (9/12 print ed.)

"As the Pentagon gears up to expand its fight against ISIS, a fundamentalist Sunni militant group that controls large areas of Iraq and Syria, Congress appears perfectly willing to abdicate one of its most consequential powers: the authority to declare war.

The cowardice in Congress, never to be underestimated, is outrageous. Some lawmakers have made it known that they would rather not face a war authorization vote shortly before midterm elections, saying they’d rather sit on the fence for a while to see whether an expanded military campaign starts looking like a success story or a debacle. By avoiding responsibility, they allow President Obama free rein to set a dangerous precedent that will last well past this particular military campaign. Mr. Obama, who has spent much of his presidency seeking to wean the United States off a perpetual state of war, is now putting forward unjustifiable interpretations of the executive branch’s authority to use military force without explicit approval from Congress.

In May 2013, Mr. Obama argued in a speech that the 2001 law passed after the Sept. 11, 2001, attacks to wage war against Al Qaeda had become obsolete and ought to be repealed.

“Unless we discipline our thinking, our definitions, our actions, we may be drawn into more wars we don’t need to fight, or continue to grant presidents unbound powers more suited for traditional armed conflicts between nation states,” Mr. Obama said at the National Defense University.

Now the White House is repudiating that thinking and making the perplexing argument that the 2001 law authorizing the use of force in Afghanistan and the 2002 law authorizing force in Iraq give Mr. Obama the power to battle the Islamic State in Iraq and Syria, known as ISIS and ISIL, indefinitely and anywhere in the world. They most certainly don’t.

The first law, enacted when the nation was gripped by panic, gave the president a broad mandate to go after the perpetrators of the 2001 terrorist attacks. It has been used to strike Al Qaeda affiliates around the globe over the past decade. The Obama administration claims that ISIS militants are legitimate targets under both the 2001 and the 2002 use of force authorizations because some of the fighters once belonged to the Iraqi Al Qaeda group. The fact that Al Qaeda has disavowed ISIS, deeming it too radical, does not seem to prevent the administration from ignoring the logic of the law.

“It is the true inheritor of Osama bin Laden’s legacy,” a White House official said Wednesday in a written response to questions.

The administration has been situational when it comes to asking Congress for the approval to use military force. When Mr. Obama authorized an air campaign in Libya in 2011 to help embattled rebels overthrow Col. Muammar el-Qaddafi, he chose not to get permission from Congress. That decision was remarkable because the president overruled the top lawyers at the Pentagon and the Justice Department, who argued that under the 1973 War Powers Resolution, any military action that lasted more than 60 days required formal authorization from Congress.

Last year, when Mr. Obama came close to launching cruise missiles in response to a chemical weapons attack by the Syrian government, he argued that it was imperative to seek a congressional vote. When it became clear that lawmakers and the public wouldn’t support an attack, the administration backed down and was lucky to find a diplomatic alternative.

Some lawmakers in Congress have suggested that they may be open to approving the president’s plan to have the Pentagon train Syrian rebels — an undertaking that is expected to cost $500 million during the first year — but they are demanding more details before they back the expanded campaign.

Mr. Obama may not wait long to ramp up military operations in Iraq and Syria. Congress should weigh in — and soon. If lawmakers approve military action, the authorization should be narrowly defined for the explicit purpose of battling ISIS, perhaps limited in time and geography. Any such document should not leave this president or his successor the ability to get the United States into wars without the people’s consent."

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