Just two weeks after the Obama administration asked Congress to repeal the Iraq war authorization, the White House is failing to adequately explain to lawmakers the legal justification and concrete objectives for its airstrikes against the Islamic State of Iraq and the Levant (ISIL or ISIS), according to congressional insiders apprised of off-the-record briefings on the matter.
Questions are now being raised on Capitol Hill about how the White House intends to legally justify its military campaign, particularly in light of its efforts to repeal the Authorization for Use of Military Force in Iraq (AUMF).
Obama administration officials waited to brief senators late last week until after isolated airstrikes had been launched on multiple ISIL targets, according to Senate sources who provided the Free Beacon with a readout of the call, which was described as "pointless."
The administration’s decision to bypass Congress before taking military action is reminiscent of its behavior in Libya, where air strikes also were authorized without congressional approval.
"They didn’t provide any firm answers or decisions," said one senior Senate source apprised of the briefing. "The administration is saying that they’re going to authorize air strikes if ISIS gets close to U.S. personal or stationed personal, which in [our] mind, if there is a threat in the region you get your people out unless they’re military."
This rationale from the White House is leading some to speculate that U.S. personnel in the region are being left in harms way "as collateral" because the Obama administration "can’t get his party and donor base to support further action in Iraq," according to the source.
"That’s where a lot of the confusion is coming from" on Capitol Hill, the source added. "When there’s an imminent threat you get your civilian employees out of the region."
The decision to take action against ISIL was made just weeks after White House national security adviser Susan Rice petitioned Congress to repeal the Iraq AUMF, a move that one Congressional insider described as "tone deaf" and "bad optics on the administration’s part."
"We believe a more appropriate and timely action for Congress to take is the repeal of the outdated 2002 Authorization for Use of Military Force in Iraq," Rice wrote in the letter, which received fierce criticism from the chair of the House Armed Services Committee (HASC).
Late Friday evening, Obama sent a letter to House Speaker John Boehner informing him of the airstrikes and claiming legal authority based "my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive," according to a copy of the letter published by the White House.
"These military operations will be limited in their scope and duration as necessary to protect American personnel in Iraq by stopping the current advance on Erbil by the terrorist group Islamic State of Iraq and the Levant and to help forces in Iraq as they fight to break the siege of Mount Sinjar and protect the civilians trapped there," Obama wrote, making no mention of the 2001 or 2002 AUMFs permitting strikes on al Qaeda and it affiliates in Iraq and elsewhere.
While Obama could use the Iraq AUMF as a legal justification for the strikes, the administration is reticent to do so due to the political implications of invoking the act, which the administration and its allies have fought to repeal for years.
Obama, like other presidents, has the ability to invoke "customary war powers," though the case of Iraq is proving to be particularly tricky due to the administration’s reticence to involve itself in the fight against ISIL.
"If the way the president handled Syria is an indication, there’s no strategy and no plan for tomorrow," said the Senate source apprised of the closed-door briefings on Iraq.
The issue is further muddled by ISIL’s status as a militant group. While al Qaeda has claimed that ISIL is an offshoot of the terror group, ISIL leaders have distanced themselves from the larger organization.
The 2001 AUMF permits the president to take action against any group responsible for the 9/11 attacks, primarily al Qaeda.
A second senior Senate aide who works on military matters explained that Obama is walking a fine line when it comes to his legal justification for the strikes.
"Though the president's powers as commander-in-chief are not explicitly defined in the Constitution, it is generally understood that the President has ‘customary war powers’ which is evidenced by the fact, as of 2004, we have used military action over 300 times but have only declared war 11 times," the source explained. "So to answer your question, ‘No’ the president does not need authorization to conduct airstrikes."
"We can talk about how the president will probably file a War Powers Resolution report with Congress so as to be consistent with that law," the source explained, just hours before Obama actually did so.
"However, no president has ever conceded the Constitutionality of the WPR. That being said the Iraqi Authorization for the Use of Force is still on the books," the insider explained. "The Iraqi AUMF does provide a broad authorization for the use of force but the president will not invoke it for political reasons."