There was much enthusiasm in 2008 that President Barack Obama would bring a saner and more lawful approach to issues of foreign policy and war and peace. Six years later — with Americans still being killed in Afghanistan, Guantanamo Bay still in active operation, US drones killing people in several countries and even American citizens, and now new mischief in Iraq — it is clear that President Obama has done little more than expand the already large war-making powers of his predecessor and fully enabled the vision of a “unitary executive” with unfettered powers in war and peace.
Where is, for example, President Obama’s domestic authorization for the use of force in Iraq against the Islamic State? Obama has taken the position that the 2001 Authorization of Use of Force (“AUMF”) passed by Congress in the wake of the 9/11 attacks, as well as the 2002 AUMF against Iraq passed before that war provide him with the legal basis for further air strikes. None other than John Yoo, the famous ratifier of torture in the George W. Bush Administration, has rushed to Obama’s defense, claiming that Obama has all the legal authority he needs under the 2001 and 2002 AUMFs.
But the notion that these Authorizations support current military action against the Islamic State more than a decade after they were initially passed is highly flawed. The 2001 AUMF was specifically limited to terrorist groups that had planned or aided the 9/11 attacks. There is zero evidence (and no government official has yet argued) that the Islamic State is somehow tied to 9/11. The 2002 AUMF, which provided the domestic legal basis for the Iraq War, is also untenable as justification for this war as it was based on the purported “threat” posed by Saddam Hussein. Indeed, through his National Security Advisor Susan Rice, Obama himself called for the revocation of the 2002 AUMF in July, mere weeks before now claiming it as a renewed basis for the adventurism in Iraq.
The attacks are also bereft of any basis in international law. Under the United Nations Charter, a country may only use armed force against another country in self-defense, or when approved by the United Nations Security Council. There is no resolution that has authorized the US strikes in Iraq; and the notion that the United States must lob bombs into Iraq as a matter of self-defense is simply not credible.
While not made explicitly (at least not yet), the White House will likely rely on a tenuous theory in international law called the “responsibility to protect,” which argues that countries may involve themselves militarily in other countries in order to protect civilians or prevent other imminent humanitarian harms. This was the basis of the bombing campaign against the former Yugoslavia, which never had UN Security Council authorization. Obama’s current Ambassador to the United Nations, Samantha Power, is a well known advocate of this doctrine and she has recently argued that the US has all the legal authorization it needs for the air campaign.
