Last August, shortly after the U.S. government said forces loyal to Syrian dictator Bashar al-Assad had used chemical weapons against opposition forces near Damascus, President Obama announced he would be asking Congress for permission to strike the Assad regime.
It was an abrupt course correction, one that followed bipartisan outrage over the possibility of the U.S. becoming mired in another war in the Middle East. But with the Iraqi Army crumbling in the advance of the Islamic State in Iraq and the Levant, the president is again contemplating military action in the region. Two of Iraq's biggest cities, Mosul and Tikrit, have fallen to ISIL in recent days.
"We will not be sending U.S. troops back into combat in Iraq, but I have asked my national security team to prepare a range of other options that could help support Iraq's security forces," Obama said in a press conference Friday. "And I'll be reviewing those options in the days ahead." Those options could include air strikes.
With Syria, the president never got his authorization, and the strikes never happened -- instead the U.S. and Russia brokered a deal to have the Syrian government give up its chemical weapons. The president is unlikely to find himself in the same situation with Iraq however, because legislative aides say that while Congress must be consulted, the president may already have the legal authority to act. Unlike the Assad regime, legislators appear more convinced that ISIL, a group U.S. forces spent years trying and failing to destroy during the Iraq War in its earlier iteration as Al Qaeda in Iraq, could pose a direct threat to the United States. The more Congress wants Obama to act the less likely they are to make him have to ask permission.
"Legally the president doesn't necessarily need congressional authorization to provide assistance to an ally who is under attack," said an aide to the Senate Armed Services Committee. Though U.S. forces withdrew from Iraq in 2011 after a U.S.-Iraq security agreement was not renewed, the U.S. still maintains certain security-related commitments to Iraq. "Presidents have constitutional authority to act as commander in chief, and we have some existing legal arrangements with the Iraqis that the president doesn't need congressional authorization to live up to."
An aide to the House Armed Services Committee stressed that legislators were in the early stages of contemplating what if any authorities might be needed. But the aide also suggested the president might be able to act on his own, because U.S. citizens would be threatened by ISIL's advance. "As long as there are Americans in Iraq in jeopardy as there clearly are, he can use his Article II powers," the aide said, referring to the president's authority as commander in chief.
That's not to say all lawmakers will be on the same page on the issue. Republicans Lindsey Graham and John McCain did not mention congressional authorization in their statements urging air strikes on ISIL following the president's press conference Friday. Tennessee Republican Senator Bob Corker said in his that "The president must make this one of his top priorities and work with Congress to authorize support as needed."
The group currently known as Islamic State in Iraq and the Levant was once allied with Al Qaeda, but the two groups split publicly months ago. That means that ISIL, despite its ideological similarities with Al Qaeda, wouldn't be covered by the 2001 Authorization to Use Military Force, passed in the aftermath of the 9/11 terrorist attacks.
Legal experts such as former Bush Justice Department official Jack Goldsmith have argued that the 2002 Authorization to Use Military Force in Iraq might give the president statutory power to act. "The 2002 AUMF has no geographical limitation," Goldsmith wrote. "It authorizes force not in Iraq, but rather "against the continuing threat posed by Iraq."
Stephen Vladeck, a professor at American University's Washington College of Law, said he wasn't sure that on its own the Iraq AUMF would cover the current crisis. "I’m somewhat more circumspect [than Goldsmith], as I don’t think Congress back in 2002 could fairly have been said to be authorizing military force in perpetuity against any group in, or coming from, Iraq," Vladeck said.
Asked about the 2002 Iraq AUMF, National Security spokesperson Caitlin Hayden said in an email that "the Administration supports the repeal of the Iraq AUMF since it is no longer used for any U.S. Government activities. We understand that some in Congress are considering legislation related to the Iraq AUMF, and we look forward to working with them."
The administration may not end up needing to. The Senate Armed Services committee aide stressed the magnitude of the crisis in Iraq, and the urgency of developing a proper response.
"In terms of the debate that we're likely to be in in the next couple of days, what exactly is authorized and what is not authorized is secondary to what the right thing to do is from a policy standpoint," the aide said. "Acting to protect American interests, if an action would serve our national security, that's going to be what's important rather than the fine points of legality here."
That isn't to say U.S. military action in Iraq is inevitable. Obama said Thursday that "any action that we make take to provide assistance to Iraqi security forces has to be joined by a serious and sincere effort by Iraq's leaders to set aside sectarian differences, to promote stability and account for the legitimate interests of all of Iraq's communities, and to continue to build the capacity of an effective security force." With Iraq riven by sectarian conflict, those are requirements its political leadership may not be prepared to meet.