Does Congress know enough to justify acting against the Islamic State?
Lyle Denniston, the National Constitution Center's constitutional literacy adviser, says the Executive Branch's powers could become more profound if Congress approves military actions based on uncertain intelligence information.
"All of the focus on the legal rationales for military force shouldn't obfuscate or excuse our continuing lack of understanding of the threshold questions. What, exactly, is the threat that ISIL poses to the United States, and why is that threat sufficient to justify uses of force beyond conventional self-defense? For all of the oxygen that will be consumed in the coming days and weeks over [authority to use military force], we shouldn't let that drown out these critical (and necessarily antecedent) questions."
– Stephen Vladeck, a law professor at American University in Washington, D.C., in a September 11 commentary on the "Lawfare" website, discussing President Obama's speech the day before on the new terrorism threat in the Middle East.
"How Big a Threat is the Islamic State?"
"The Islamic State threat has been overblown"
"These militants require more than a containment strategy"
– Headlines on news and commentary stories in The Washington Post on Sept. 14.
WE CHECKED THE CONSTITUTION, AND…
From the Founding generation up to today, those who have favored a strong presidency have always insisted that the nation would be kept safe from its enemies only if the Executive Branch was allowed to act swiftly and energetically. Alexander Hamilton wrote in Federalist Paper No. 70 in 1788, "In the conduct of war, the energy of the Executive is the bulwark of the national security." In modern times, that energy includes the unique capacity within the national government – through a vast intelligence-gathering apparatus – to generate very detailed information on the nature of threats to that security.
If Congress is to be brought into the conduct of military operations as a constitutional partner, it still must rely almost exclusively on what the Executive Branch tells it about those threats; it lacks the resources to find that on its own. If, however, there is a shortcoming in what the President knows (or is willing to share), any congressional response necessarily will have to be done mainly in the dark.
News stories out of Washington these days have been filled with demands from pundits and politicians for President Obama to react militarily and quickly to the threat perceived in the "Islamic State" campaign of territorial aggression and human atrocities, but there also has been a spate of commentary suggesting that not even the President knows the true dimensions of such a threat.
American University law professor Stephen Vladeck, a national security law expert who is quoted above, had written earlier in the month that the wave of proposals for military action in Iraq and Syria were "putting a rather large cart before an indeterminate pack of horses," because the suggestions "all assume … that we have a clear picture of what is actually true on the ground today."
As the public pressure to do something about the Islamic State exerts a political impact in Congress, the lawmakers will have to depend even more heavily upon the secret briefings they will be getting, perhaps as often as every day, from the Executive Branch. And those briefings necessarily will be only as good, or as dependable, as the intelligence data that the government has been able to pick up.
Although President Obama spoke with confidence to the nation last week about his understanding of the current nature of the threat in Iraq and Syria, and argued that this perception fully justified him in taking action on his own, with or without congressional support, other information coming from official Washington sources and making its way into the news media reflected a good deal more uncertainty. For example, the top story in The Washington Post this past Sunday reported a substantial degree of doubt about what the government actually knows.
Thus, there exists a real possibility that military commitments – narrowly defined or more expansive — may be made in coming days on the basis of exaggerations (or, perhaps, underestimates) of what is truly happening now in the Middle East.
And, in a real sense, with important constitutional consequences, those commitments could leave the President and the Pentagon with discretion to take action that may not exactly fit the necessities of the situation on the ground. One potential result could be that Congress's opportunity to keep a political check on those responses might well be diminished even further.
That may be a more comfortable position politically for the lawmakers to be in during an election year, but it would add to the long-term trend to shift government responsibility for acts of war to the Executive Branch.
As the nation marks another anniversary of the terrorist attacks of September 2001, tragic events that led almost immediately to a considerable expansion in the Executive Branch's war powers, the nation might also remember that the loosely worded resolution passed by Congress authorizing a response to those attacks helped enable that expansion.
That resolution – the Authorization for Use of Military Forces – was swiftly passed by Congress, three days after the attacks, and was signed into law by President George W. Bush a week after those assaults. Now, President Obama's legal advisers are citing that act as the legal basis of his authority to attack the Islamic State militarily.
That claim, of course, has met with widespread criticism – from, among others, Yale law professor Bruce Ackerman, who wrote in The New York Times on the Sept. 11 anniversary that President Obama had brought about "a decisive break in the American constitutional tradition."
If a new authorization now emerges, and especially if it does so based upon uncertain intelligence information about the new terrorism threat, the shift in war powers may be even more profound, and lasting.
Philadelphia's National Constitution Center is the first and only nonprofit, nonpartisan institution devoted to the most powerful vision of freedom ever expressed: the U.S. Constitution. Constitution Daily, the Center's blog, offers smart commentary and conversation about constitutional issues in the news, drawing insights from America's history and a variety of expert contributors.