Questionable Legality of U.S. Bombings in Syria and Iraq

     In the Bloomberg View article "Obama Doesn't Want Your Approval for War," Noah Feldman--a columnist and professor of constitutional and international law--questions the legality of U.S. airstrikes in Iraq and Syria, especially the latter. Feldman problematizes this ongoing U.S. military action in the war against the Islamic State (which group the administration refers to as "ISIL"). Feldman asserts that the present U.S. military operations against this group violate international laws, and, moreover, lack the congressional support that the U.S. Constitution mandates in order to limit Executive power and avoid U.S. engagement in hostile activities abroad without the approval of the U.S. public. 

  Feldman examines the few vague justifications the Obama administration has offered, noting, too, that Congress has failed to provide any such justifications. The Authorization for Use of Military Force Against Iraq Resolution of 2002 (116 Stat. 1498 Public Law 107-243) provides that the President can "protect the national security of the United States against the threat posed by Iraq." However, as Feldman remarks, the Obama administration claims to be protecting Iraqi citizens from the threat of ISIL--not protecting the U.S. public from Iraq. "The 2001 authorization is less applicable still," Feldman argues: in this joint resolution (115 Stat. 224 Public Law 107-40), Congress authorized the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001." However, ISIL is unaffiliated with al-Qaeda, and certainly appears wholly uninvolved in attacks on the U.S. in 2001. 

     The last justification Feldman notes is to construe Article 2 of the Constitution in such a strong manner that the President, as commander in chief, has virtually limitless powers to protect the U.S. public. These latter powers include the president's ability to use military force in a case of self-defense without Congressional action, as, typically, it is the sole ability of Congress to declare war or engage in such hostilities. However, as per the War Powers Resolution (87 Stat. 555 Public Law 93-148), passed by Congress after the Vietnam War, the President must consult Congress, and moreover, acquire its explicit approval in order to engage in armed conflict; indeed, in cases of self-defensive emergency when the President deems it necessary to engage in warring activities without acquiring the approval of Congress, the President must still alert Congress immediately and acquire its ongoing approval after such engagement has begun--all of which processes have yet to occur despite ongoing attacks in Iraq and Syria. However, Feldman argues, this Constitutional Executive power does not apply because "the U.S. is not defending itself against [the group called] Islamic State in any meaningful sense." 

     Though Feldman believes these justifications erroneous, he proffers "two real possibilities" as to what the "Obama administration believe[s] authorizes its newest war;" both possibilities, he claims are "legally and morally preposterous." First, the Obama administration may believe "that if it is bombing from the air or pushing a button from afar--as in a drone strike or cyberattack--it isn't going to war and doesn't need legal justification." Feldman remarks that, though both laughable and disturbing, this sort of argument is not new, as in the case of recent bombings in Libya. Alternatively, the Obama administration may believe that its actions gain legitimacy from the above-mentioned authorizations in 2001 and 2002--however, as previously noted, these resolutions fail to address the current situation, as it involves neither al-Qaeda nor a threat posed by Iraq to the U.S. 

     Ultimately, Feldman finds this all critically important and disturbing because of the "dangerous precedent" this sort of Executive action may set. Though he acknowledges that Congress may implicitly support these Executive actions, a--even the--central function of the Congress is to act as a representative of the U.S. public. Though these military attacks in Iraq and Syria are certainly problematic in their own right, Feldman is more concerned that this unchecked Executive action represents a larger trajectory of departure from "the ideal of a republic that goes to war only when the public approves."

Postscript: The Obama administration and mainstream news media have recently been giving a lot of attention to a group of al-Qaeda operatives called "Khorasan" who, apparently, were also a target of U.S. bombings in Syria. With Feldman's article in mind, it is interesting to consider how Khorasan has--as an al-Qaeda-affiliated group--and, moreover, an "imminent threat to the United States" (according to the Associated Press), seems to provide legal justification for at least some of the bombings in Syria (in terms of the 2001 authorizations and the Constitutional self-defensive war power the Executive branch holds). These revelations regarding the Khorasan group are at least a little conspicuous in their convenience. More recently, the particular "imminence" of the threat held by the Khorasan group has been drawn into question by U.S. officials and news media. Murtaza Hussain, a journalist for The Intercept, has a compelling and deeply critical article on the legitimacy of this legal narrative called "The Fake Terror Threat Used to Justify Bombing Syria." In this article, he focuses on the ways in which the bombings violate International Law, a compounding set of issues that may render the discussion above even more concerning.