It's being reported that "President Obama has authorized a 30-day mission for the U.S. military to conduct airstrikes against the Islamic State terror group in Libya as new strikes were unleashed Tuesday" (via Stephen Green at Instapundit, who jokes "I’m old enough to remember when it was Congress that authorized the use of force.")
Must Congress authorize this use of force? I say no, but it's not an easy argument.
The President is probably relying on Congress' 2001 Authorization for the Use of Military Force (AUMF) against the groups that were involved in the 9/11 attacks. As debated on this blog and elsewhere back in 2014 when hostilities with IS began, tying IS to the 2001 AUMF is problematic. It's true that IS can be understood as an outgrowth of the Zarqawi organization in Iraq, which joined al-Qaeda in 2004. Even though Zarqawi's group wasn't involved in 9/11, I can accept that a group that joins a 9/11 participant group falls under the 9/11 AUMF: it is part of the group responsible for 9/11, which is what the AUMF covers. (Similarly, an individual who joins al-Qaeda after 9/11 couldn't claim that the U.S. can't target him).
But IS split with al-Qaeda very forcefully and publicly in 2014, adopting a strategy of territorial conquest rather than (or at least in addition to) terrorism. Initially, it was not clear that IS would focus on terrorism against the West at all. At that point I think IS no longer fell under the 2001 AUMF, because it neither participated in or supported the 9/11 attacks nor was part of a group that did. I acknowledge that this inquiry needs to be a functional one; al-Qaeda shouldn't be able to escape the AUMF just by renaming itself or splitting into the terrorist equivalent of tiered corporate subsidiaries. So I think al-Qaeda's affiliate in Syria is covered, even if it has a different name and a separate command structure and wasn't involved in 9/11. But the split between IS and al-Qaeda seems real and meaningful. It is, I would say, akin to an individual who joins al-Qaeda after 9/11 but later quits; he is not covered by the AUMF (even if he continues in another variety of terrorism).
Back in 2014, I argued (here, with further thoughts here) that military operations against IS in Iraq were better understood as authorized by the 2002 AUMF (authorizing force to protect "against the continuing threat posed by Iraq"). Even if that's right, though, it probably doesn't cover attacks on IS in Libya — as far as I know, there isn't any direct operational connection between IS's Libya enterprise and IS activities in Iraq. The 2002 AUMF doesn't authorize force against IS specifically; it authorizes force to, in effect, resolve the instability in Iraq. The President's Libya attacks are not directed to resolving the instability in Iraq.
Instead, the stronger basis for the U.S. attacks in Libya is the President's independent war power. Back in 2014, it was not clear that IS had attacked the United States. (The first IS attack on U.S. soil was in 2015). Thus I thought at the time that any claim to independent presidential power to attack IS was weak. But that situation has changed, most tragically and dramatically with the attack this year in Orlando. In my view, the IS attacks on the United States authorize the President to respond with force.
Essentially everyone agrees that the President has independent authority to take defensive actions in response to an attack (or an imminent attack) on the US. The question is whether the President can independently take the offensive against attackers. In this article ("The President's Power to Respond to Attacks"), I argue that the President does have this power. And I think that power allows the President to launch attacks against IS in Libya without Congress' approval.
The short version of the argument is this: Congress has the sole power to declare war, which in my view means the power to initiate a state of war by formal proclamation or by launching attacks. However, this power is not implicated when another entity begins a war against the United States (again, by proclamation or attack). In that situation, the war is already "declared" by the other side, and the President may use force as commander-in-chief in response. Although most people agree with this result as regards defensive measures, I see no persuasive textual or historical evidence for that limitation. Once the war begins, the President may fight it, in the ways the President thinks best. Congress' exclusive power involves the beginning, not the extent of the response. (In making this argument, I basically adopt the argument of both Alexander Hamilton and President Jefferson's cabinet in the Tripoli episode of 1801).
True, this is not a consensus position, and this article by Saikrishna Prakash is the best statement of the opposing view. But I believe it to be correct and to offer the best defense of the President's ongoing actions against IS in Libya.
Posted at 6:37 AM