Congress, exhausted after a month-long recess, is set to adjourn again next week to allow incumbents to get onto the campaign trail ahead of the midterms. But in letters to the Hill, the ACLU is urging lawmakers to stick around at least until it had taken a vote on whether President Obama has the authority to launch strikes against militants in Iraq and Syria.
Earlier this week, the White House argued that the president has the authority to take action against the Islamic State in Iraq and Greater Syria (ISIS) with or without Congress’ approval. In fact, a senior administration official argued, the Congress passed on that ability back in 2001. “We believe that he can rely on the 2001 [Authorization for the Use of Military Force against al-Qaeda] as statutory authority for the military airstrike operations he is directing against ISIL,” the official said, using the government’s preferred acronym for the group. “And we believe that he has the authority to continue these operations beyond 60 days, consistent with the War Powers Resolution, because the operations are authorized by a statute.”
The American Civil Liberties Union, however, is not so sure. “The President has neither statutory nor Article II authority to carry out the plans he described in his televised speech this week,” the organization wrote in letters to both the House and Senate and released on Friday. “Only Congress has the constitutional authority to authorize such extensive war powers.” While saying that the ACLU has no position on whether military force should be used against ISIS, the letter insists that in shirking its duties, Congress is harming the country.
“Even while the President is ramping up an air campaign and sending more American ground personnel into Iraq, Congress is still poised to recess next week for nearly two months without deciding the question of whether to extend war authority for military force in Iraq and Syria,” the letter chides, pointing out there may be only four legislative days left before the lame duck session after the elections. Waiting until after the election to take up the question, the ACLU says, “would mark an abdication by Congress of the war powers reserved for it under Article I of the Constitution. The failure of Congress to act promptly would strike at the very heart of the fundamental principle of separation of powers that is at the core of the Constitution and is the undergirding of our democratic form of government.”
The ACLU isn’t alone in scorning the Obama administration for trying to lean on the 2001 AUMF as a justification for taking action against ISIS. Jack Goldsmith of Lawfare, which normally is supportive of counterterrorism actions taken by the White House, said that Obama “has instead stretched the AUMF beyond all recognition and probably ensured that it will be the legal basis for war against Islamist terrorists for quite a while to come.” Other legal experts have called the White House’s explanation of just why they can act in Syria “an implausible argument” at best.
Currently, however, there are no plans in either house to take up any of the draft authorizations to use military force that have been created in the past several weeks. Instead, the debate in Congress is centering around whether the administration’s request for $500 million and the authority to have the Pentagon train and equip moderate Syrian rebels would be placed into the continuing resolution that will keep the government open past the end of the month. House Republicans are currently considering separating the provision out from the bill that would fund the government for the rest of the year and the Senate is waiting to see how the House acts before moving.