War on Terror part 2: Obama is using 13-year-old authorization from Bush era to bomb ISIS without congressional approval – which may be illegal!

  • Obama said in 2007 that unless there is 'an actual or imminent threat to the nation,' a president 'does not have power under the Constitution to unilaterally authorize a military attack'
  • The White House is side-stepping this constitutional requirement by claiming anti-ISIS operations are a 'counter-terrorism' effort
  • Congress gave President George W. Bush permission to attack al-Qaeda in 2001; the White House is relying on that as justification
  • Al-Qaeda and ISIS are now mortal enemies but the Obama administration says the two are alike enough to justify its choices
  • Some in Congress are insisting on being consulted; others back the president no matter what

By David Martosko, Us Political Editor for MailOnline

Published: 11:07 EST, 11 September 2014 | Updated: 17:48 EST, 11 September 2014

The Obama administration is using George W. Bush's 2001 permission slip from Congress as legal justification to expand a bombing campaign against the self-declared Islamic State of Iraq and al-Sham (ISIS), even though that authorization applied to al-Qaeda – which is now the ISIS terror group's mortal enemy.

'We believe that he can rely on the 2001 AUMF (Authorization for Use of Military Force) as statutory authority for the military airstrike operations he is directing,' a senior administration official told reporters Wednesday during a conference call a few hours before President Barack Obama's televised speech.

Legal experts are beginning to doubt that theory, an important development because a staunchly anti-Bush Obama argued as a presidential candidate that the White House can't wage war without there is an emergency.

Obama said in 2007 that 'the President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.'

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Obama, shown during Thursday morning's 9/11 memorial at the Pentagon, has done a 180-degree turn from his pre-presidential position on whether Congress needs to weigh in before the White House wages watr

Obama, shown during Thursday morning's 9/11 memorial at the Pentagon, has done a 180-degree turn from his pre-presidential position on whether Congress needs to weigh in before the White House wages watr

'The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation,' Obama said in 2007

'The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation,' Obama said in 2007

He was talking about Bush's War on Terror, responding to a hypothetical question from The Boston Globe about bombing Iranian nuclear sites. 

'In instances of self-defense, the President would be within his constitutional authority to act before advising Congress or seeking its consent,' Obama told the Globe less than a year before he was elected president.

The president now believes the 2001 AUMF is consent enough. And since it was explicitly an anti-terrorism measure, the White House has been careful to call airstrikes against ISIS a 'counter-terrorism' campaign – not a war.

White House Press Secretary Josh Earnest suggested to reporters on Thursday that since ISIS is an al-Qaeda spinoff – its previous name was 'al-Qaeda In Iraq' – and has mainly expanded the al-Qaeda tactical playbook, any Congress that approved action against the group that attacked on 9/11 would surely extend that permission to ISIS.

'The tactics of al-Qaeda In Iraq have not changed just because the name has changed,' Earnest said.

He cited 'continued ties' between ISIS and 'al-Qaeda fighters, or al-Qaeda operatives.'

And 'there are some al-Qaeda operatives,' Earnest claimed, who have said they believe ISIL is the true inheritor of the legacy of Osama bin Laden.' ISIL is an alternate name for the terror group.

University of Texas Law School professor Robert Chesney told The Daily Beast that 'on its face this is an implausible argument because the 2001 AUMF requires a nexus to al Qaeda or associated forces of al-Qaeda fighting the United States.'

'Since ISIS broke up with al-Qaeda it’s hard to make that argument.'

But Earnest insisted Thursday that the 'decade-long or more relationship' between al-Qaeda and ISIS 'is not something that can be disregarded as part of one internal disagreement that was aired publicly.'

On Wednesday, Obama said he had made up his mind.

'I have the authority to address the threat from ISIL,' he said.

He added that he would 'welcome congressional support for this effort.'

Sarah Palin, the former Republican vice presidential nominee, blasted the president on her Facebook page hours later, hinting that his flip-flop from 2007 on unilaterally waging war was the latest in a series of political U-turns.

'Today, he seems more worried about contradicting his campaign promises (2002-2008) and typical political poll angst than leading as president (2009-present),' she wrote. 'These are the “optics” he's worried about.'

Congress emerged from the saber-rattling speech sharply divided on the question of whether he must come to Capitol Hill for permission to expand his war against ISIS.

This is separate from the question of whether lawmakers will grant his request for $500 million to train and arm moderate Islamic militant groups to help defeat ISIS in Syria.  

Some federal legislators want to hold him to the standard he set in 2007.

Kentucky Sen. Rand Paul, a dovish Republican and strict interpreter of the U.S. Constitution, said Wednesday night on the Fox News Channel that he supports Obama's intentions but not his go-it-alone mentality.

'This is an intervention, and I don’t always support interventions but this is one I do support,' Paul told host Sean Hannity.

Moments later, Paul said Obama 'should have come before a joint session of Congress, laid out his plan as he did tonight, and then called for an up or down vote.

'It is unconstitutional what he’s doing.'

He later tweeted that 'the Constitution is very clear. The power to declare war resides in Congress. If we are to go to war, Congress must approve.'

Kentucky Sen. Rand Paul insisted Wednesday night that it would be unconstitutional for President Obama to wage a long-term war against ISIS without permission from Congress

Kentucky Sen. Rand Paul insisted Wednesday night that it would be unconstitutional for President Obama to wage a long-term war against ISIS without permission from Congress

Socialist senator Bernie Sanders of Vermont joined the chorus of lawmakers insisting on a voice before Obama launches a long-term conflict with ISIS

Socialist senator Bernie Sanders of Vermont joined the chorus of lawmakers insisting on a voice as Obama pushes a long-term conflict with ISIS

That stand put Paul in unusual company, agreeing with the most liberal members of Congress. 

Bernie Sanders, Vermont's self-professed socialist senator, said that if Obama 'attempt[s] to significantly expand U.S. military involvement beyond what was outlined in his speech, he should seek and obtain congressional authorization.'

Sanders chairs the Senate Veterans Affairs Committee.

Democratic Rep. Keith Ellison, the sole Muslim in Congress, insisted that 'Congress must weigh in when it comes to confronting ISIL through military action.'

House Speaker John Boehner, said Ellison, 'should put legislation authorizing military action on the floor of the House of Representatives before Congress leaves for the upcoming district work period.' 

Mark Udall, a Senate Democrat from Colorado, was equally firm. 

If Obama 'believes we need to use military force beyond counter-terrorism efforts against ISIS,' Udall said in a statement, 'he needs to make his case to Congress, and Congress should debate an authorization to use force.'

Udall said he's not likely to green-light anything that puts tens of thousands of boots on the ground. 'I will not give this president – or any other president – a blank check to begin another land war in Iraq,' he said.

Ted Cruz: 'President Obama must come to Congress to receive authorization, as required by the Constitution'

Ted Cruz: 'President Obama must come to Congress to receive authorization, as required by the Constitution'

Palin's take: Obama is worried about optics now, she said, instead of sticking to his campaign promises about working with Congress

Palin's take: Obama is worried about optics now, she said, instead of sticking to his campaign promises about working with Congress

Senate Foreign Relations Committee chair Robert Menendez, a fellow Democrat, said Obama 'possesses existing authorities to strike ... in the short term.' 

A 'prolonged military campaign,' however, 'will require a congressionally-approved Authorization for Use of Military Force.

Menendez said his committee will begin drafting a 'tailored AUMF' soon.

Ted Cruz, a presumptive presidential contender and a Texas senator, went further. He wants Obama to come, hat-in-hand, and petition Congress for that authority. 

'President Obama must come to Congress to receive authorization, as required by the Constitution,' Cruz said Wednesday night. 

'Doing so would force him to articulate a clear strategy, gain critical bipartisan support, and unite America.'

Tennessee Sen. Bob Corker, another Republican, accused the president of 'exercising poor judgment by not explicitly seeking an authorization from Congress... for an operation that he has described will take several years.'

Illinois Republican Rep. Adam Kinzinger said the squabble is meaningless unless anyone in Congress intends to block Obama.

'I don’t care how it’s approved,' he said. 'I’ll vote for it either way. And I don’t understand why some folks are making an issue of it. Maybe there’s some politics I don’t understand.'

'At the end of the day, we should give the president the authority and money he needs.' 

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