09/16/2014 10:49 am ET Updated Dec 06, 2017

A New AUMF: What Is the Obama Administration Afraid of?

Cobbling together a "coalition of willing partners" against the Islamic State, as Pentagon Press Secretary Rear Adm. John Kirby framed it for reporters during a press briefing, is hard enough for the Obama administration. Secretary of State John Kerry has been making the rounds and talking with virtually everyone in the Middle East to try to enlist their support. All the while, the war planners at the Pentagon are busy improving situation awareness inside Syria in order to prepare a package of targets for President Obama to approve.

So what plausible reason can we give to explain why the White House is making their jobs even more difficult by asserting questionable domestic legal justifications for the coming campaign against ISIL in Syria? And why rely on an outdated, 60-word congressional authorization passed thirteen years ago to "green-light" military strikes on a terrorist organization that wasn't even around until 2004?

Legal scholars are asking these very same questions, and the administration is not providing answers that are convincing. We are not talking only about people like Bruce Ackerman, a professor at Yale Law School, who penned a scathing critique of President Obama's unilateral war-making powers in the New York Times; we are also talking about Jack Goldsmith, a top lawyer in the George W. Bush administration who wrote on that the president is single-handingly making Congress an irrelevant institution on matters of war and peace:

Future historians will ask why George W. Bush sought and received express congressional authorization for his wars (against al Qaeda and Iraq) and his successor did not. They will puzzle over how Barack Obama the prudent war-powers constitutionalist transformed into a matchless war-powers unilateralist. And they will wonder why he claimed to "welcome congressional support" for his new military initiative against the Islamic State but did not insist on it in order to ensure clear political and legal legitimacy for the tough battle that promised to consume his last two years in office and define his presidency.


U.S. Naval War College/Wikipedia

All of this criticism would go away if the Obama administration reversed its current position and asked Congress for a new, tailored and ISIL-specific authorization for the use of military force. Yet White House officials have said with a straight face that this course of action isn't necessary because they already have the authority they need under the 2001 AUMF passed a few days after the 9/11 terrorist attacks -- this, despite the fact that Ayman al-Zawahiri kicked ISIL out of the al Qaeda network. Yes, it's true that ISIL was once called al Qaeda in Iraq and that the organization once pledged an oath of allegiance to Osama bin Laden. But we're not talking about 2004, we are talking about 2014. Any reasonable person following the ISIL threat today would find it a stretch to consider the group an affiliate or partner of al Qaeda in northwest Pakistan.

The White House's legal team went a step further a few days ago, when they provided a written statement to the New York Times after being asked what the president's argument is for expanding the U.S. air campaign into Syria without congressional approval. This was the administration's response:

The President may rely on the 2001 AUMF as statutory authority for the military airstrike operations he is directing against ISIL. As we have explained, the 2002 Iraq AUMF would serve as an alternative statutory authority basis on which the President may rely for military action in Iraq. Even so, our position on the 2002 AUMF hasn't changed and we'd like to see it repealed.

In other words, President Obama is depending on the same exact statutory authorization that initiated what called "a dumb war" as a state senator. It also happens to be an authorization that the president has long vowed to repeal.

Either the president needs some new faces in the Office of Legal Counsel, or his team needs to do what many of his allies on Capitol Hill are calling for: Ask Congress to grant new statutory authority for the military campaign against ISIL in both Iraq and Syria. What is the administration afraid of?