- The Washington Times - Thursday, February 12, 2015

President Obama’s request for new war powers is by the administration’s own contention legally unnecessary, and military and legal scholars say the proposal would have little, if any, practical impact on the U.S. campaign against the Islamic State in the short term.

Mr. Obama’s authorization for use of military force, known as AUMF on Capitol Hill, keeps in place a 2001 document allowing the U.S. to hunt down al Qaeda. Over the past 14 years, that authority has been stretched far beyond its original intent and has been used by the Obama administration to justify attacks on the Islamic State in Iraq and Syria. Those attacks began more than six months ago, long before the latest authorization was even considered.

The president and his top advisers consistently have argued they don’t need a new authorization and are seeking one purely to project American unity and demonstrate cooperation with Congress on national security matters.

On Thursday, Capitol Hill showed increasing signs that bipartisan agreement may be getting harder. House Speaker John A. Boehner, Ohio Republican, said the resolution needs to be broader, but the leader of the chamber’s Democrats invoked the specter of the Iraq War.

Regardless, the proposal is unlikely to have much of an effect on the administration’s broader strategy to “degrade and ultimately defeat” the Islamic State, which has killed thousands across the Middle East and is responsible for the deaths of at least four Americans.

Even if Congress were to shoot down the request and reject Mr. Obama’s call for new war powers, the White House has given no indication that it suddenly would stop pursuing Islamic State militants in the Middle East and beyond.

“Having an AUMF in this instance helps reinforce the idea — in the minds of friends and foes alike — that the American people are intent on going after ISIL,” said Charles Dunlap, a retired Air Force general and executive director of the Center on Law, Ethics and National Security at Duke University School of Law. “Still, in terms of what the U.S. military actually does in this campaign, I don’t think too much will change, at least in the near term.”

The U.S. strategy likely will remain the same, centering on airstrikes, the training of Iraqi government and non-Islamist Syrian rebels and the occasional use of special operations forces to, for example, try to rescue American hostages.

The authorization for the use of military force, which was left intentionally vague to provide maximum flexibility to the president, contains no geographic restrictions.

It prohibits “enduring offensive ground combat operations,” though it would allow for the use of special operations forces and for defensive operations involving U.S. troops. It also would replace a 2002 document authorizing the Iraq War.

As written, the proposal would be in effect from the day Congress passes it until three years later, though military action presumably could continue beyond that deadline under a 2001 authorization.

The administration acknowledges that its request is, from a legal perspective, of little consequence.

“The president has already indicated and his lawyers have confirmed for him based on their review of the law that Congress has already given the president the authority to order these military actions under the AUMF that they passed in 2001,” White House press secretary Josh Earnest told reporters Wednesday. “The fact of the matter is the president has the authority to order the military operations that have been undertaken so far. The president believes that, as a matter of principle, it’s important for Congress to make their voice heard and to pass an authorization to use military force that is more tailored to the specific threat that the United States faces today.”

The White House still argues that the 2001 authorization should be repealed, though that effort has been pushed down the priority list.

Some legal analysts contend that the administration’s interpretation of the 2001 document is deeply flawed and takes far too much power from Congress.

Mr. Obama’s view “means that in 2001 Congress signed off on every terrorist action forever,” said Louis Fisher, a scholar in residence at the Constitution Project who spent four decades as a specialist in the separation of powers at the Library of Congress.

Indeed, House Minority Leader Nancy Pelosi, California Democrat, said such memories of the Bush-era authorization were shaping her party members’ attitudes. “Some Democrats voted for it. They have said, ‘I wish I hadn’t,’” she said Thursday.

Sen. Benjamin L. Cardin, Maryland Democrat, noted that “Congress could be authorizing a state of perpetual war, and giving this president and future presidents a blank check to keep America at war.”

Another Democrat, Rep. Brad Sherman of California, looked a couple of years down the line and said that “enduring offensive ground operations,” a term in the bill, “is a highly elastic phrase which the next president may interpret broadly.”

From the other end, Mr. Boehner reiterated the stance of his party’s leaders, saying Mr. Obama’s proposal simply wasn’t up to the job and seemed like an attempt by Mr. Obama to constrain himself.

“I want to give our military commanders the flexibility and the authority that they need to defeat our enemies,” he said. “And that’s exactly what Republicans will make the case for as we move through rigorous hearings and oversight on this issue.”

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