The Case for Congressional Authorization of Force in Iraq

Is America’s constitutional system broken?  Has American political dysfunction finally reached its tipping point?  Is it the new normal to accept lethargy and reluctance during an election year?  Reasons for why one may ask these questions might lie in a myriad of policy and political developments over the past few years.  For my purposes, I ask these questions in light of the American strategy toward the alarming situation in the Middle East in which radical Islamists have exponentially gained influence and territory over the last two years.

Members of Congress on both sides of the aisle have given the president praise for his recent efforts to initiate a (limited) air campaign against the terrorists who now call themselves the Islamic State.  However, more hawkish members of Congress have repeatedly asked for more from the president.  Senator John McCain (R-AZ) had this to offer: “The president’s rhetoric was excellent, but he didn’t outline steps to stop the slaughter…The strategy should be to launch all-out air attacks in Iraq and Syria to defeat ISIL.”  The Associated Press wrote, “Some Democrats, too, pushed for expanding U.S. military action into Syria,” and followed their statement with a quote from Senator Bill Nelson (D-FL); “Otherwise, [ISIL] will continue to threaten Americans and the interests of our country.”  Fellow Florida senator, Republican Marco Rubio, also had harsh words for the president; “I remain deeply concerned that despite the preponderance of evidence that proves [Islamic State] is a fundamentally evil and dangerous terrorist threat to the United States, President Obama continues to appear unwilling to do what is necessary to confront [the group] and communicate clearly to the American people about the threat ISIL poses to our country and to our way of life.”

President Obama has been understatedly reluctant to engage militarily in Iraq after the 2011 withdrawal of US forces.  However, recent events such as the potential genocide of religious minorities and threats to United States personnel in northern Iraq triggered a meager response from the president in the form of a small deployment of Special Forces and an air campaign that, as of this writing, has numbered a total of 90 air strikes.  According to several Defense Department releases, the strikes have been carried out to “support Iraqi security forces and Kurdish defense force operations, as well as to protect critical infrastructure, U.S. personnel and facilities, and to support humanitarian efforts.”

The efforts of the United States had allowed Iraqi forces to reclaim the critical Mosul Dam from Islamic militants, a major blow to the Islamic State and a tremendous victory for the security of those down river from the dam, which if opened could cause mass flooding all the way to Baghdad. In terms of the operations to reclaim the Mosul Dam, the president stated in a letter to Congress, “The failure of the Mosul Dam could threaten the lives of large numbers of civilians, endanger U.S. personnel and facilities, including the U.S. Embassy in Baghdad.”  The president has also stated at numerous press conferences since authorizing military strikes that he has been in close consultation with Congress.

As the American military operations in Iraq drag on, the president’s legal authority under Article II of the Constitution to protect US personnel gets thinner and thinner.  The defense that the failure of the Mosul Dam would threaten the lives of Americans in Baghdad walks a fine line in powers enumerated for unilateral presidential action.  In addition to this sort of connect the dots rationale for force, senior officials in the administration have stated that US airstrikes will continue and the administration is mulling sending more ground forces to Iraq in order to provide additional security.  The American operation is beginning to go beyond just a defense of Americans.  As the president’s legal authority wanes, it is imperative that the issue of force be debated in Congress as the Constitution directs.

Earlier this summer, when the president was considering force, and ultimately deployed a number of advisors, he met with Congressional leaders who all gave the O.K. to use force based on Article II powers and previous authorizations that many legal scholars have debated are not applicable to this current threat or situation.  Recently, “Representative Nancy Pelosi of California, the minority leader, whose weekly conference calls with Democrats during the congressional break have been dominated by discussions of Iraq, said Mr. Obama had wide latitude to act without Congress,” according to the New York Times.

Several pundits have been severely critical of the president for not exercising enough steadfastness regarding the Islamic State.  Many have called for the president to end his vacation and devote more attention to the issue.  The president has made many missteps in his time at the White House, but Congress always seems to get off much easier than the president.  It is far easier to point the finger at a single person than a collective body.  Despite Congress’s record dismal ratings, most incumbents, with the exception of a select few, are continuously reelected.  This trend plays into a notion that most voters are displeased with Congress as a body but like their representative.

Members of Congress should heed the words of the punditry and end their vacation as they did when the president called on them to take a vote regarding the use of force in Syria.  I have reiterated many times before – congressional (in)action has only emboldened Executives like George W. Bush and Barack Obama to expand the authority of their office.  Despite no call from the president to seek a vote, members of Congress should return to Washington and take the initiative as they began to do before their month long recess where they “ban[ed] Mr. Obama from deploying armed forces in sustained combat in Iraq without congressional approval.”

The New York Times noted that Senator Bob Corker (R-TN), who drafted the resolution regarding use of force in Syria, has been silent on the issue of Congressional authorization in Iraq and would rather request “administration officials to testify at a hearing when Congress returned about their strategy for the airstrikes and what authority they intended to use in executing them.”  Senator Corker, and many other members of Congress, have used these hearings as a soapbox to lament and berate members of the administration for policy failures and incompetence.  Now is not the time for testimony, but action and debate among those overseeing the administration.

To be fair, there are members of Congress who are requesting a vote to be held such as Senator Rand Paul (R-KY), Congressman John Garamendi (D-CA), and Senator Tim Kaine (D-VA) who has emerged as a strong bulwark against unchecked unilateral Executive use of force.

The president stated to a group of senators recently, “Guys, you can’t have it both ways here.”  Members of Congress are afraid to confront the issue of authorizing force head on and thereby demur on their constitutional obligations for fear of war-weary voter reprisal in an election, yet they have no problem with charges of an imperial presidency and approving the lawsuit by the House of Representatives.  Brian Fishman, Fellow at the New America Foundation, wrote recently, “partisan tussling makes for bad national security policy and makes us less safe.”

If Congress continues to demur on this issue, it may set a dangerous precedent in which future presidents will continue to incrementally push their boundaries.  Partisanship must end and Congress must debate the issue of force and how it should be authorized going forward (which is probably a whole other issue [repeal, revise, reform the 2001 Authorization for use of Military Force] entirely.)  The federal government is made up of three coequal branches.  If Congress cannot get this right, then the unfortunate and depressing answer to my three questions at the outset is regrettably “yes.”