Is The ISIS War Legal Or Not?

By Sal Bommarito

Is the war against ISIS legal? Since the founding of our nation, presidents and congresses have debated who has the ultimate power to use military force outside of the United States.

The Constitution definitively “grants Congress the sole power to declare war.” It has done so on only 11 occasions, even though force has been used in many more situations. But, conflicts often times begin as skirmishes and grow into much larger confrontations. And, at other times, our homeland is threatened by overt assaults such as Pearl Harbor and 9/11. So, it is reasonable and desirable for our commander-in-chief to have discretion to act rapidly. This issue is being debated once again. More specifically, can the president conduct bombing raids in Iraq and Afghanistan against ISIS forces for an extended period without congressional approval?

In a recent article, Michael Kreiger expressed the following dissent of the Obama administration’s actions in the Middle East: “With each new President and each new war, we have witnessed those who hold office act more and more like dictators and less and less like constitutional executives.”

And, Bruce Ackerman wrote an op-ed saying: “President Obama’s declaration of war against the terrorist group known as [ISIS], . . . marks a decisive break in the American constitutional tradition. Nothing attempted by his predecessor, George W. Bush, remotely compares in imperial hubris.”

Clearly, disapproval of the ISIS War is in the air. But, the person most vocal is Democratic Senator Tim Kaine (VA). In a news story, it was revealed that “Mr. Kaine said he told the president in no uncertain terms that if he decided to go to war, he would have to ask Congress’ permission.” As an aside, this former Virginia governor was on President Obama’s short list to become Vice President.

Mr. Krieger shed some light on how the most recent presidents have dealt with conflict in the Middle East. George W. Bush received explicit approval of Congress to invade Iraq and Afghanistan. This authorization “extended only to nations and organizations that ‘planned, authorized, committed or aided’ the 9/11 attacks.”

Obama justifies his actions by indicating that ISIS is an extension of the same Al Qaeda group that attacked the U.S., so no new approvals are necessary to fight these terrorists. But ISIS arose long after the 9/11 attacks, and the original Al Qaeda recently “disavowed” ISIS. So, it is hardly an affiliate of ISIS

The War Powers Act of 1973 requires the president to obtain congressional approval within 60 days of commencing hostilities; if not, actions must cease within 30 days. Obama gave Congress notice on August 8 about attacking ISIS, so his time expires today to report back to Congress and receive assent.

Complicating the debate between the president and Congress is the impending mid term elections. Frankly, no lawmaker really wants to vote on the ISIS imbroglio now and have it used against him or her in the elections.

The dysfunction of our government is evident by its “non-action” relating to hostilities against ISIS. It is the responsibility of the president to protect the country and obtain congressional approval for extended conflict. And, Congress is required to give or withhold its assent. Neither branch of government is doing its job. As an American, I would hope that all the issues relating to the wars in Iraq and Afghanistan be debated and analyzed before the U.S. spends more money and risks more lives.

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