President Barack Obama and his national security advisers have some serious thinking to do over the next week on the scope, duration and lethality of U.S. military action against the organization calling itself the Islamic State. To date, the president has relied upon the Article II powers that are granted to his office by the U.S. Constitution, such as the ability of the Commander-in-Chief to take limited military action when U.S. citizens are at risk. Just this past weekend, President Obama ordered the U.S. Air Force to pummel Islamic State checkpoints, armored trucks, and mortar positions to break a two-month siege of a small, agricultural Turkomen town that was cut off nearly all attempts to bring in food, water, and medical supplies to the people who lived there. In this case, the need to ensure that a genocide didn't occur was given as the sole explanation for the latest bombing.
U.S. Central Command has conducted nearly 120 airstrikes as of August 31, 2014. The number may seem high, but the military force that President Obama has used thus far is confined to specific geographical areas in northern Iraq in danger of being taken over by the jihadists, such as Irbil, the Mosul Dam, and now the Iraqi village of Amerli. As long as the U.S. Air Force is employed in this way, the White House can claim that it has all of the legal authority it needs under Article II to defend U.S. national security interests and the safety of American citizens and facilities in the region. Indeed, members of Congress have been relatively quiet on the president's decision to launch the full weight of the U.S. Armed Forces, and when they have spoken about it, they tend to support the president's legal argument.
If the Obama administration, on the other hand, finds it necessary to expand U.S. military activity against the Islamic State into Syria (a choice it will have to make if there is any possibility of degrading the organization's military capability in the short-term), President Obama will quickly face a wave of pressure on Capitol Hill on the need to submit a new Authorization for the Use of Military Force for congressional debate and approval. In fact, the push for greater congressional buy-in is already there, with Senators Tim Kaine (D - VA), Chris Murphy (D - CT) and Bob Corker (R - TN) lobbying for a vote.
"I have long stressed that Congress must formally approve the initiation of significant military action," Kaine expressed in a written statement. "[I]t is what the framers of the Constitution intended, and Congress and the Executive have a responsibility to do the hard work to build a political consensus in support of our military missions." Sen. Murphy was even more blunt in an interview with Yahoo News on Sunday, August 31: "We have to pass a new authorization [for use] of military force in order to continue hostilities against ISIS."
After getting embarrassed last summer when both houses of Congress were increasingly reluctant to grant President Obama the authority to retaliate against Bashar al-Assad's use of chemical weapons on civilians, the White House is no doubt reluctant to try the same route again. Any AUMF request in an election year will inevitably seen by Democrat lawmakers in tough election contests as a politically amateurish thing for a Democratic president to do to his own party. And Republicans in Congress will attempt to use any AUMF vote as a way to remind Americans going to the polls in November about the president's (and by extension, the Democratic Party's) poor numbers on foreign policy.
But fear aside, Obama should go directly to Congress for a new AUMF -- that is, if he plans to embark on the kind of large-scale, comprehensive anti-IS strategy in both Iraq and Syria that his own Secretary of State, John Kerry, pushed for in an August 29 New York Times op-ed.
Doing so would meet several objectives, the first being a much-needed clarification on the legal underpinnings that guide the use of U.S. military force against a constantly amorphous and evolving international terrorist enemy. The 2001 AUMF, which was a mere 60 words passed overwhelmingly three days after the September 11, 2001 terrorist attacks, has been on the books for nearly thirteen years and has been stretched to the breaking point in order to accommodate threats emanating from al Qaeda associates and affiliates. Although the Islamic State may have been the spawn of Abu Musab al-Zarqawi's Al-Qaeda in Iraq, the very public breakup between Ayman al-Zawahiri and Abu Bakr al-Baghdadi means that the 2001 AUMF cannot be used as the domestic legal basis of an anti-IS military campaign (it's difficult for even the most clever constitution lawyer to argue that a document justifying the targeting of al Qaeda could be used to target a group that wasn't formed until 2004). Only a new authorization could resolve the outstanding questions that legal scholars and lawmakers continue to have on the war powers issue post-9/11.
Secondly, going to Congress to obtain buy-in would provide the president with the bipartisan, domestic backing that only the people's representatives can provide on the eve of a major military operation. If the United States works best when it speaks with one voice, as President Obama said last summer, allowing lawmakers to have an open, objective and healthy national debate before voting is only appropriate.
Finally, a new AUMF directed solely against the Islamic State would serve an incredibly useful political function for the White House. Instead of being the one actor tied to the success or failure of a military operation, the administration would spread the responsibility and costs across two, co-equal branches of government. If things go bad for U.S. personnel or if the strategy is too slow to produce lasting damage on the terrorist group, members of Congress who clamor for action but fail to step up and vote will not be able to sit back, go on national television and engage in the familiar Monday-morning quarterbacking that has come to define contemporary Washington politics. Both branches, Congress and the White House, will own the successes and shortfalls of the operation.
So the next time Obama huddles with his national security aides in the Situation Room on the subject of IS and Syria, everyone in the meeting should be able to get over the year-long flu that started in September 2013. Going to Congress, it turns out, is not only legally necessary, but politically smart.