Constitutional Scholars: Sustained Airstrikes in Iraq May Be Unconstitutional

Daniel Doherty

8/13/2014 7:30:00 AM - Daniel Doherty

The legality of President’s Obama’s sustained and targeted airstrike campaign in Iraq against ISIS forces is a matter of contention among some constitutional scholars.

What they all seem to agree upon, however, is that any targeted military operation, lasting no longer than a few days, does in fact pass constitutional muster (via The Hill):

“I think any conflict of a couple days in nature could be justified,” said Louis Fisher, a scholar at the Constitutional Law Project, “but as President Obama said last weekend, this is not going to be for just a couple days or weeks, it could go on for a year or two. …

Under the War Powers Act, Obama is required to report to Congress within 48 hours of the airstrikes commencing, Fisher said. At that point, he has 60 days to convince Congress to get on board, or else pull out the troops.

President Obama could extend that period by 30 days if the troops’ lives would be endangered by an immediate withdrawal.

By this legal reasoning, the president should already have asked for Congress’ permission to continue taking out ISIS military targets in Iraq. (He hasn’t). And yet, the situation only becomes more convoluted when legal experts deliberate on the nature of the attacks. Part of the reason airstrikes were first deemed broadly lawful is because they were launched outside the city of Erbil, with the explicit purpose of protecting American citizens. Recent airstrikes, however, are being launched solely to protect the ethnic minority population in northern Iraq. And while there might not be a moral difference between protecting American lives and Iraqi lives -- the US’ stated objective is saving as many lives as possible -- this nuance under the law has all sorts of legal implications:

Obama has defended the airstrikes against ISIS near Mt. Sinjar as a “humanitarian effort” necessary to prevent genocide.

The airstrikes at Mt. Sinjar are a “little different situation, because Obama’s not defending Americans,” [Professor Peter] Raven-Hansen said.

“President Obama, arguably, has no constitutional authority to use American forces in combat to defend foreigners,” he added.

Of course, that’s only one expert’s opinion, and not all constitutional scholars agree on this point:

Robert F. Turner, a national security professor at the University of Virginia, though, defended Obama’s actions in Iraq.

Turner said that Obama can continue ordering airstrikes against ISIS, because they are not a foreign state, just a terrorist group.

“What he’s doing, it’s not an act of war,” Turner said. “He’s essentially coming to the defense of Iraq. Nobody recognizes ISIS as a state. They’re not set up as a government, they’re just a band of terrorists.”

Whatever the case may be, the president has pursued targeted airstrike campaigns in the past without Congress' approval, and against the wishes of his top legal advisors. If he does this again, however, it's safe to say cries of executive overreach will only grow louder, even if his actions are warranted and well-intentioned.