WASHINGTON — When President Obama delivers his State of the Union address Tuesday, he will set in motion a political year that is unlikely to see much agreement between the White House and Republican leaders — with at least one possible exception.
The Obama administration and House Speaker John Boehner and Senate majority leader Mitch McConnell have pledged to work together to pass a congressional resolution giving the president the authority to prosecute the five-month-old bombing campaign against the Islamic State in Iraq and Syria.
But they will probably face some strong headwinds from members of both parties who believe that previous resolutions — passed after the Sept. 11, 2001, terrorist attacks and before the US-led invasion of Iraq in 2003 — have been abused.
Many Democrats, along with a sizable number of rank-and-file Republicans, are expressing concerns that a new war resolution could hand the executive branch a blank check to wage an open-ended war — not just against the Islamic State but possibly other extremist groups in multiple countries.
“In many respects, there is a convergence between what the administration would like and what many of the more hawkish Republicans in Congress would like,” Representative Adam Schiff of California, the top Democrat on the House Select Committee on Intelligence, said in an interview. “At the same time, you have many Democrats who are uncomfortable with another war authorization teaming up with more libertarian Republicans who are wary of another US entanglement in a Muslim country.”
Schiff said it would be “very difficult to resolve these tensions.” He is calling on the administration to “craft an authorization that sets real limits on the use of force and does not provide carte blanche to this or the next administration.”
It is unclear what, if anything, Obama will say about the war powers debate in his speech before a joint session of Congress Tuesday night. A recent Pew Research Center poll said that, for the first time in five years, Americans rank defending the US against terrorism as a top concern, putting it at the same level as strengthening the economy.
The military operation against the Islamic State began with airstrikes in August, first in Iraq and then in Syria a month later. The US presence soon will grow to 3,000 military advisers in Iraq to help local allies prepare to retake the territory the Islamic State now controls.
Despite the divide within both parties about what the parameters of the mission should be, there is widespread agreement among lawmakers and scholars that the legal justifications the Obama administration has been relying on are outdated.
The White House has cited both the congressional authorization approved in the days after the 9/11 attacks to go after the Taliban and Al Qaeda in Afghanistan, as well as the separate vote in late 2002 authorizing US military force to overthrow Iraqi dictator Saddam Hussein.
The White House press secretary, Josh Earnest, last week told reporters the president believes he has the legal authority “that he needs to take the necessary steps to degrade and ultimately destroy” the Islamic State.
But he also said a bipartisan congressional vote backing the operation would “send a very clear signal to the American people, to our allies, and to our enemies that the United States is united behind the president’s strategy.”
Yet the United States is now engaged in “types of conflicts that were not even conceived of” a decade ago, said Jennifer Daskal, a professor at the American University Washington College of Law who has written extensively about the role of Congress in waging war.
The United States recently modified its mission in Afghanistan from combat to advising and supporting the Afghan security forces. The United States pulled its combat troops out of Iraq at the end of 2011.
When Congress lent its support to both those conflicts, meanwhile, the Islamic State did not exist, nor had the United States launched its so-called “drone war” against terrorist operatives that now stretches from Africa to Central Asia.
Several legal scholars and lawmakers have said that both previous resolutions should either be repealed or at minimum modified to reflect new realities. The Iraq resolution from 2002 in particular is seen as no longer relevant.
There have also been calls to “right-size” the Authorization for the Use of Military Force, or AUMF, that wide majorities in both the House and Senate passed immediately after the Sept. 11, 2001, attacks.
At minimum, Schiff and others believe the authorization needs an expiration date so that the overall authority for the so-called war on terrorism gets revisited.
But there is deep disagreement on exactly what should be authorized in order to confront the Islamic State, for how long, and what form it should take — as a stand-alone resolution or a modification of a previous one.
A vocal bloc is insisting a new resolution be limited to fighting the group in Iraq and Syria, while others say it needs to be less restrictive given the group’s stated goal to create a caliphate encompassing the broader Middle East.
Secretary of State John F. Kerry told the Senate Foreign Relations Committee last month that “it would be a mistake to advertise to [the Islamic State] there are safe havens for them outside of Iraq or Syria.”
Although Obama has said publicly that he has no plans to reintroduce combat troops into Iraq or send them to Syria, Kerry has insisted that such a resolution not “preemptively bind the hands of our commander in chief,” including by placing limits on the use of ground forces.
Representative James McGovern, a Worcester Democrat who believes both previous resolutions should be repealed, expressed opposition to “any of these open-ended authorizations that allow wars to go on without end and can be used to justify wars we might get into 10 years or 20 years down the road.”
Some legal scholars, meanwhile, have called for a very narrow congressional authorization that limits where US military force can be used against the Islamic State and sets a deadline when the president — either Obama or his successor — must come back to Congress to extend hostilities.
“It ought to be specific to the conflict the United States is now fighting,” said Daskal, the American University professor, who recently co-wrote a paper on the issue with a number of legal scholars. “It ought to be time-limited so that three years from now there is kind of [a] forcing mechanism to force Congress to go back and assess . . . who the enemy is at that point.”
Anything short of that, she said in an interview, “violates general principles of democratic accountability.”
Any resolution should also require the president to report publicly every six months on “the progress toward the mission’s objectives” and identify “any groups or nations other than [the Islamic State] that have joined” the conflict, Daskal and a half-dozen other constitutional law experts recommended.