President Obama is on firm legal footing in dispatching troops to Iraq to guard the U.S. embassy and to serve as “advisers” to the Iraqi government, but some legal analysts said the administration’s own past contradictions on policy could put any broader moves, such as airstrikes via traditional craft or drones, in a gray area.
Those analysts said Mr. Obama set something of a precedent last year when he said he’d seek votes in the House and Senate before launching military strikes in Syria.
But unlike last year’s debate over attacks on Syria — which never came to fruition — the White House has shown no indication it’s preparing to go to Congress to authorize potential bombing campaigns over Iraq. Asked about that possibility last week, former White House press secretary Jay Carney said, “We’ll cross that bridge when we get there,” noting Mr. Obama has made no final decisions on the extent of U.S. involvement in Iraq.
On the heels of a meeting with the president last week, congressional leaders indicated they believe Mr. Obama retains the authority to intervene in the current Iraq crisis from the 2002 authorization for the use of force, the precursor to the 2003 beginning of the Iraq war.
But if he relies on that vote, Mr. Obama would be highlighting another contradiction in policy. The administration maintains the authorization act should be repealed since the Iraq war technically came to a close in 2011.
Legal specialists also say the law, passed in the aftermath of the September 11, 2001, terrorist attacks, may not apply to the current fight against the radical group the Islamic State in Iraq and the Levant [ISIL].
“The Authorization for Use of Military Force is a stretch here,” said Charles J. Dunlap Jr., a retired Air Force general who now serves as a law professor and executive director at the Center on Law, Ethics and National Security at Duke University. ISIL “does not have a direct connection with 9/11 [as far as] the law contemplates.”
The president, meanwhile, may be laying the groundwork for further American involvement in Iraq, as ISIL continues to make major advances and captures key areas of the country.
In an interview on MSNBC’s “Morning Joe” on Monday, Mr. Obama again said ISIL could directly threaten U.S national security — a potential justification for airstrikes or other involvement.
“We’ve got an organization that has the ability to, you know, at least right now in western Iraq, cause a lot of havoc and violence and over time could pose a serious threat to the United States,” he said. “That doesn’t mean that we reoccupy Iraq. It does mean that we’re going to have to do our best to work with our partners in the region.”
If U.S. military involvement becomes necessary, there also is precedent for this White House to bypass Congress entirely. It did so with the 2011 bombing campaign in Libya, leading to charges the president violated — or, at least stretched the limits of — the War Powers Resolution, designed to rein in a commander in chief’s ability to order prolonged military strikes without congressional consent.
Mr. Obama cited the War Powers Resolution earlier this month when he notified congressional leaders of the deployment of U.S. forces to guard the American embassy in Baghdad. Such notification was necessary because those forces, in theory, could see combat if the embassy comes under attack.
Given the controversy a full return to Iraq would generate, and due to the administration’s contradictions on past endeavors like Syria and Libya, some specialists say the president would be right to seek outright congressional consent rather than just inform lawmakers of his plans.
“Everyone sees this as a regional problem likely to go on for years at great expense, danger and risk. For that, I think the better position is the one Obama gave last year on Syria,” said Louis Fisher, a scholar in residence at the Constitution Project who spent more than 35 years as the Library of Congress’s senior specialist in separation of powers.
Mr. Fisher said the issue is not the length of time U.S. forces are involved in Iraq but rather the larger goals of the mission that warrant consultation with Congress.
“It’s the scope of the operation and the expense of the operation. This looks like a re-involvement by the United States in Iraq,” he said.
Congressional leaders have yet to object to the president’s use of his commander in chief powers; indeed, House Minority Leader Nancy Pelosi has explicitly said she believes Mr. Obama has the needed authority under the 2002 authorization bill.
Other lawmakers disagree, though they appear to be in the minority, at least right now.
“There needs to be a full-throated debate in Congress, and Congress has to decide,” Sen. Rand Paul, Kentucky Republican, said Sunday on CNN’s “State of the Union” program. “Militarily, we could go back in. You know, the surge worked. Obviously we have the military might and power. But the country as a whole has to decide — do we want to send 100,000 troops in?”