Constitutional Lawyers: 2001 Military Authorization Doesn't Apply to ISIS

By Lauretta Brown | September 17, 2014 | 5:34pm EDT

Former associate deputy attorney general Bruce Fein. (Facebook)

( - Two constitutional  lawyers criticized President Obama for invoking a 2001 congressional authorization to take military action against the Islamic State of Iraq and Syria (ISIS) during a debate in Washington over the extent of executive war powers.

In a “Debate on War and the Constitution,” sponsored by the non-partisan Committee for the Republic and held at the National Press Club Tuesday evening, Bruce Fein and John Yoo said that a previous congressional authorization to go after Al-Qaeda did not automatically extend to ISIS, and that the president owed the American people an explanation.

The debate was moderated by Harvey Rishikof, former senior policy adviser to the Director of National Counterintelligence.

Yoo, former legal counsel to the Bush administration and a defender of broad powers for the executive branch, and Fein, a senior policy adviser to Ron Paul’s 2012 presidential campaign, had different reasons for their shared belief that Obama overstepped his authority as commander-in-chief.

Fein challenged the Obama administration’s attempts to justify military action in Syria through the 2001 Authorization for Use of Military Force (AUMF), passed by Congress in response to the 9/11 attacks, saying that the authorization’s language “describes the universe of targets that the president can set as those who were complicit – it can be persons, organizations, individuals – who were complicit in 9/11 or harbor those who were. It’s not an authorization to go after every terrorist in the world.”

He pointed out that ISIS “is sort of an opponent of al-Qaeda, they clearly are rivals,” and that they “didn’t even exist in 2001.”

“Congress thought it was authorizing an attack on an organization that didn’t even exist at the time?” he asked. This is “an example, I think, of the insouciance that the president utilizes in going to war without any congressional authorization,” he stated.

Former deputy assistant attorney general John Yoo. (AP photo)

Yoo, author of the controversial memos on "enhanced interrogation" of terror suspects, also participated in the drafting of the 2001 AUMF. He agreed with Fein that “if ISIS is not part of Al-Qaeda, if they’re actually in conflict with each other, then I don’t think it falls within the 2001 AUMF.”

On Sept. 11th, White House spokesman Josh Earnest said that the two terror groups have been linked together for more than a decade. “That long — decade-long or more — relationship is not something that can be disregarded as the result of one internal disagreement that was aired in public.”

But Yoo said that instead of relying on the 2001 AUMF, the administration “should focus on the 2002 AUMF to use force in Iraq, pointing out that “if you look at, carefully, at how that law’s written, it doesn’t talk about using force against Saddam Hussein, it doesn’t talk about the regime, it talks about threats to the U.S. national security from Iraq.

“And if ISIS represents a terrorist organization that has modern weaponry, that has a large population and territory under its control and resources, financial and natural, and they intend to attack us, as they appear to and they say so in public, then I think they may fall under the 2002 AUMF,” he explained.

However, Yoo emphasized that “it’s incumbent on President Obama to go to the American people and to Congress and explain why he thinks the facts are such [that] they fit under the statute. I mean, I don’t think they [AUMFs] are blank checks.

“They are much broader than any other authorizations in the past, because they’re not limited by time or the 2002, by geography, certainly.

“But that puts us back into what it was like in September 18, 2001 when it was written and passed. We were not sure exactly who had attacked us yet, and we wanted to make sure that [if] Al-Qaeda evolved… or transform[ed] itself into different groups, renamed itself, the authorization would still be able to follow them and the people helping them.”

Invoking the 2002 AUMF could be problematic for the president, considering the fact that Obama was publicly opposed to it at the time and later campaigned for president on his opposition to the Iraq war.

“The 2002 Iraq AUMF would serve as an alternative statutory authority basis on which the President may rely for military action in Iraq. Even so, our position on the 2002 AUMF hasn’t changed and we’d like to see it repealed,” an unnamed senior Obama administration official said in a statement obtained by The New York Times.


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