WHEN BARACK Obama was running for president, he answered a questionnaire from this newspaper on the issues regarding the president’s legal standing to use military force.
“The president,” said Obama, “does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation . . . History has shown us time and again, however, that military action is most successful when it is authorized and supported by the legislative branch.”
There is perhaps no issue where the gap between the rhetoric of candidate Obama and his actions as president have been so vast. Since becoming president, Obama has not actively sought nor received new congressional authorization for employing America’s military around the world — and in the current fight with the Islamic State, he’s breaking new and dangerous ground in expanding the president’s power to wage war.
To be sure, this is a disputed legal question — where you sit (on Capitol Hill or at 1600 Pennsylvania Ave.) largely determines how you answer it. That has been more true since the passage of the War Powers Act in 1973, which Congress enacted to place greater constraints on the executive branch — and which every president since has rejected.
Nonetheless, while presidents have disagreed with the substance of the War Powers Act, they have adhered to its core procedural element, which allows the president to order the military into action but requires congressional authorization within 60 days. If it’s not forthcoming, then the mission must end within the next 30 days.
Obama has flagrantly pushed back on this tradition. During the 2011 military campaign in Libya, as the deadline was about to arrive, the Obama administration told Congress that it was not bound by the War Powers Act because that conflict did not “involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve US ground troops.” Thus, said the White House, it wasn’t actually a war.
This creative definition was rejected by many legal scholars as well as Obama’s own Office of Legal Counsel at the Department of Justice. Moreover, while Obama told Congress that American involvement in Libya was for humanitarian reasons, the mission was brazenly expanded to remove Libyan President Moammar Khadafy from power — a clear example of presidential overreach.
Most amazingly, Obama’s stances have gone further than those of his predecessor, George W. Bush, who sought new authorization to go to war in Iraq and, unlike Obama, did not rely on an elastic definition of the 2001 Authorization of the Use of Military Force against Al Qaeda to justify every new conflict.
But it gets worse. Seven weeks since the commencement of military operations in Iraq and Syria, the White House has provided no official legal justification for the war. Instead, they’ve argued that the 2001 AUMF — which a year ago the president said needed to be replaced — as well as the 2002 AUMF sanctioning war in Iraq, give them all the legal cover they need.
You don’t have to be a lawyer to see the absurdity of this argument. The Islamic State didn’t even exist in 2001. Plus, it’s a rival, not an ally, of Al Qaeda. According to Obama himself, its militants are not actively plotting to attack the United States.
The use of the Iraq authorization is even bolder given the fact that Obama so loudly trumpeted his role in ending the war in that country. To cite it now as justification for a new conflict is the definition of chutzpah.
The administration has also repeatedly said that operations against the Islamic State could last for years, which means that Obama could end up fighting this war for the rest of his presidency with no congressional authorization and no clear legal basis. This was precisely the kind of situation that the War Powers Act was intended to prevent.
Congress is not off the hook here. The legislative branch has a responsibility to weigh in and not abdicate its responsibility by heading home as the current Congress has done. But considering that Obama has said he doesn’t need their permission, there is little political incentive for them to act. If anything, Obama should demand their support, for precisely the reasons he told the Globe six years ago.
Michael A. Cohen is a fellow at the Century Foundation. Follow him on Twitter @speechboy71.