On March 25th, the New York Times editorial board wrote that Congress must declare war on ISIS. The Times claims that Congress has refused to do its duty in the fight against ISIS. They went on to say that with the impending invasion of Raqqa, the US involvement in Syria would be questionable on constitutional grounds.
It seems as though the Times has rediscovered the War Powers Resolution after failing to make the same claim about President Obama’s illegal action in Libya.
Notwithstanding, it would be unwise for Congress to declare war on ISIS because the potential cost outweigh the potential benefits.
It is important to note that the constitutionality of many U.S. actions in the Middle East are on shaky ground. Currently the United States action in the Middle East is “justified” using the 2001 authorization of use of military force (AUMF). The joint resolution reads:
“That the President is authorized 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, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
This resolution officially started the U.S.’s War on Terror and is still being used sixteen years later to justify U.S. action in the Middle East. The language of the resolution is written vaguely in order to give the President flexibility when dealing with terrorists.
However, vaguely-written rules created for specific situations- like countless of other government regulations- can be used in ways that don’t align with their intended purpose.
For example, in late 2014 President Obama used the 2001 and 2002 AUMF to justify launching airstrikes against ISIS. Although ISIS did not exist in 2001, the language of the AUMF gave the President a justification to authorize the use of military forces against terrorism.
Due to ISIS’ decentralized nature, it has the ability to rebrand itself after the fall of Raqqa. This gives the current and future administrations wider latitude when it comes to the war against terrorism.
This power can be used by the President to justify attacks in the Middle East on countries like Yemen, Lebanon, and Saudi Arabia, which could drag us into unfavorable foreign conflicts. In addition, future attacks can inflict casualties on innocent civilians, as seen recently in Iraq, and can be used by ISIS to radicalize individuals.
Additionally, declaring war on ISIS would be the first case in which the United States declares war on a non-state actor. This raises many legal issues, including the US’s handling of enemy combatants, and the detaining of combatants in sites like Guantanamo Bay.
Furthermore, the President can use a declaration of war to increase his domestic power. A declaration of war would give President Trump a justification to implement his travel ban. The current travel ban relies on the claim that immigrants and/or refugees from the seven countries listed are a risk to the United States. That claim could gain relevance if war is declared because any person from those states countries could potentially be an enemy combatant.
Additionally, a declaration of war would justify expanding the country’s current state of surveillance. After the 9/11 attacks, a top lawyer from the Justice Department, lawyer John Yoo wrote a memorandum to justify the wiretapping of American citizens. Yoo’s memorandum claims that terrorist are different than traditional state actors mainly because of their decentralized nature. This means that a terrorist country does not need to invade the United States in order to mount an attack. Instead, a terrorist group only needs to rely on a few radical individuals to effectively attack the United States. Therefore, Yoo claims that the safety of the American people should be a top priority which necessitates the violation of individual privacy.
Secretary of Defense James Mattis believes that a new AUMF is not needed to defeat ISIS in Iraq and Syria. When asked about ground troops in Iraq and Syria, “Mattis did not rule out the possibility but said, “I first want to talk to the other allies and we’ll decide where we’re going.” Therefore, the United States should avoid compounding the problem and giving the President additional power, and should instead default to the use of the 2001 AUMF when fighting ISIS in Syria and Iraq.