President Barack Obama is asking Congress for authorization to fight Islamic State largely on his own terms.
The war resolution sent to Congress Wednesday would authorize the president to deploy U.S. ground troops for a variety of purposes short of “enduring offensive ground combat operations” and empower him to carry the fight against Islamic State beyond the current battlefields in Iraq and Syria.
Obama’s proposal sets the stage for weeks of debate over how much flexibility the president should be given to continue an offensive that began with airstrikes six months ago.
Obama’s measure is “carefully worded to provoke the least amount of criticism, but he will get it anyway, from both the left and the right,” said Charles Dunlap, a former deputy judge advocate general of the U.S. Air Force who’s now a law professor at Duke University in Durham, N.C.
Even so, he said, “I believe that the president will get most or all of the authority he seeks.”
Some members of Obama’s own party, such as Democratic Senator Tim Kaine of Virginia, said they want language more clearly limiting the use of ground troops, while Republicans such as House Speaker John Boehner of Ohio said they’re concerned the draft language constrains this president and his successor too much.
The “enduring offensive” restriction on using U.S. ground troops is problematic, said Christopher Swift, a senior counsel at Foley & Lardner LLP who specializes in national security law.
“I have no idea what that means,” said Swift. “Is ‘enduring’ 48 hours, 48 days, 48 months? I’d like them to define it better.”
Obama is seeking a three-year authorization for use of military force, or AUMF, even though he’s repeatedly said the fight may need to continue for many years.
John Bellinger, legal adviser to the White House National Security Council during the George W. Bush administration, said he’s troubled that the proposed three-year duration may be taken as a sign of weakness by Islamic militants.
“It sends the wrong signal to ISIL,” Bellinger said, using an acronym for the extremist Sunni group. “They can wait it out. And it just sets up a fight three years from now.”
“The suggestion that the U.S. commitment is temporally limited may trouble allies, and three years is a blink of the eye in that part of the world,” Dunlap said.
There was no sunset provision in the resolutions that authorized the Iraq war and the fight against al-Qaida. Obama’s resolution would repeal the 2002 authorization for the Iraq war, but leave the broad 2001 authorization to fight al-Qaida and splinter groups untouched.
Lawmakers in both parties have expressed support for the time limitation, saying the next president could seek a renewed authorization if needed.
“These things are so hard to get through Congress at any time that you don’t want to go back for multiple bites of the apple,” said Bellinger, now a partner in the national security practice of Arnold & Porter LLP.
Overall, the resolution “strikes about the right balance,” he said.
Since ordering airstrikes against Islamic State starting in August, Obama repeatedly promised that he wouldn’t return U.S. ground troops to a combat role in the Middle East. There now are 2,600 American troops in Iraq training Iraqi and Kurdish forces, Obama said Wednesday at the White House.
In a letter to Congress Wednesday, Obama said his resolution “would not authorize long-term, large-scale ground combat operations like those our nation conducted in Iraq and Afghanistan.”
It would allow a variety of ground missions, such as using special operations forces to go after Islamic State leaders, finding targets for airstrikes, collecting intelligence and conducting rescue operations, according to his letter.
The resolution is intended to provide the flexibility needed “for unforeseen circumstances,” Obama said, such as if intelligence identified a gathering of Islamic State leaders where special operations forces might be able to take action.
“A new authorization should place more specific limits on the use of ground troops to ensure we do not authorize another major ground war without the president coming to Congress to make the case for one,” said Adam Schiff of California, who is the top Democrat on the House intelligence committee.
In designating Islamic State as the enemy, the resolution allows for combating “individuals and organizations fighting for, on behalf of, or alongside ISIL or any closely-related successor entity in hostilities against the United States or its coalition partners.”
That would authorize U.S. military intervention in places such as Libya, where individuals claiming allegiance to Islamic State have sought to gain influence.
Swift said he’s troubled by the effort to define the enemy as Islamic State and “associated persons or forces” because it risks conflating various adversaries.
“It’s a term that’s pretty contested right now because nobody knows who they are,” he said. “There’s a lot of question as to who gets to be an associated force and who is not.”
The new measure raises questions about the fate of the 2001 resolution authorizing the war against al-Qaida and any others responsible for the Sept. 11, 2001, attacks on the World Trade Center and the Pentagon.
Eight legal scholars, including former acting Solicitor General Walter Dellinger and former State Department legal adviser Harold Koh, urged Obama in a letter to set an ending date for the 2001 resolution.
Unless that earlier measure is set to expire, they said, a new authorization against Islamic State “would simply expand the president’s already broad statutory authorities, while doing nothing to ensure public deliberation and congressional accountability respecting significant new military operations.”
Obama, in his letter to Congress, said he wants “to refine, and ultimately repeal,” the 2001 resolution.
When Obama ordered airstrikes against Islamic State in August, he told Congress he had sufficient legal authority to act based on his powers as commander in chief and the 2001 resolution against al-Qaida, from which Islamic State, originally called al-Qaida in Iraq, broke away.
Since then, lawmakers have pressed to exercise their constitutional war-making authority by acting on an AUMF.
The U.S. and other members of the coalition have conducted 1,298 air strikes in Iraq and another 1,055 in Syria through Monday at an average cost of $8.4 million a day, according to Commander Bill Urban, the budget spokesman for the Pentagon.