The Fall of Mosul and legal authority for anti-ISIS strikes
I am angry, but there isn't more I can add to what I said to express my anger in January when Fallujah fell to the terrorists invading Iraq from the Syrian civil war:
The feared consequence of the Obama administration's contravening the Strategic Framework Agreement (2008) by disengaging from US-Iraqi affairs at a critical stage of Iraq's post-Surge development, abandonment of President Bush's Freedom Agenda, weakness in the Arab Spring, appeasement of Iran, and bungling of the SOFA negotiation causing our irresponsible exit from Iraq is becoming real. ...Columbia University subject matter experts from the Saltzman Institute of War and Peace Studies explain ISIS. ISIS did not form as a direct consequence of Operation Iraqi Freedom. ISIS formed in the Syrian civil war which is part of the disintegration of the Arab Spring that started after President Bush left office. For the ISIS crisis, the decision for OIF is less relevant than President Obama's feckless approach to the Syrian civil war, the Arab Spring, and Iraq.
[Read the rest of Infuriating.]
The terrorists did not start the Syrian civil war. The Syrian civil war started with the Assad regime's violent reprisals against the peaceful protests by moderate reformers in 2011. In fact, the Assad regime, with the backing of Russia and Iran, is responsible for much vaster harm than ISIS. The Assad regime and its allies appear to be using ISIS as leverage to neutralize the moderate opposition to the Assad regime.
The terrorists, which included the defeated remnants of Al Qaeda in Iraq that reconstituted with ISIS, are opportunistic predators who have exploited the conflict. Terrorists routinely exploit conflicts and in the fecund conditions provided by the Syrian civil war, it's probable that absent AQI, other al Qaeda-related factions jockeying for dominance in the fecund conditions of the Syrian civil war - including AQI's pre-OIF elements under different banner in different configuration - would have developed like ISIS. In fact, AQI was not "created" by OIF. AQI came from pre-OIF al Qaeda elements and their pre-OIF allies from Saddam's regime who were supported by the Assad regime against OIF. Saddam's regime was not a secular bulwark, as it is often erroneously represented by OIF opponents. Saddam's terrorism included jihadists, including affiliates of al Qaeda, and he had undertaken the sectarian radicalization of Iraqi society since the Iran-Iraq War. The Saddam regime's terroristic rule in violation of UNSCR 688 was why the de-Ba'athication was considered necessary, per UNSCR 1483 and Public Law 105-338, by the Coalition Provisional Authority. (CPA senior advisers provide clarification on the de-Ba'athification here. Learn more about the CPA perspective here.)
Blaming OIF for current events in the Middle East relies on the fallacy of attenuated causation. When President Bush left office, the Arab Spring hadn't happened yet, while Iraq was stabilized, compliant, and progressing following the counterinsurgency "Surge" and Anbar Awakening. Operation Iraqi Freedom was not the disease. Until President Obama disengaged the peace operations, Operation Iraqi Freedom was working as the cure.
To wit, in May 2011 at the dawn of the Arab Spring, President Obama marked the historic opportunity for peace in the Middle East where Iraq's "promise of a multiethnic, multisectarian democracy ... is poised to play a key role in the region if it continues its peaceful progress":
Indeed, one of the broader lessons to be drawn from this period is that sectarian divides need not lead to conflict. In Iraq, we see the promise of a multiethnic, multisectarian democracy. The Iraqi people have rejected the perils of political violence in favor of a democratic process, even as they’ve taken full responsibility for their own security. Of course, like all new democracies, they will face setbacks. But Iraq is poised to play a key role in the region if it continues its peaceful progress. And as they do, we will be proud to stand with them as a steadfast partner.President Obama inherited Iraq from President Bush as a firming strategic victory and keystone strategic partner growing at peace. To wit, statement on the US Embassy in Baghdad, Iraq website:
The Strategic Framework Agreement for a Relationship of Friendship and Cooperation between the United States and the Republic of Iraq (PDF version full text - 647 KB) guides our overall political, economic, cultural, and security ties with Iraq. This agreement is designed to help the Iraqi people stand on their own and reinforce Iraqi sovereignty, while protecting U.S. interests in the Middle East. The SFA normalizes the U.S.-Iraqi relationship with strong economic, diplomatic, cultural, and security cooperation and serves as the foundation for a long-term bilateral relationship based on mutual goals.The Iraq praised by President Obama and the US Embassy in Baghdad as an emerging "strategic partner" was the post-Saddam Iraq that had been developing with US intervention. But it required staying the course with Iraq and the Bush Freedom Agenda. In his benchmark May 2011 address, President Obama pledged US support for the Arab Spring. Middle East activists took the US president's pledge to heart to risk their lives but Obama subsequently proudly reneged.
After a long and difficult conflict, we now have the opportunity to see Iraq emerge as a strategic partner in a tumultuous region. A sovereign, stable, and self-reliant Iraq that can act as a force for moderation is profoundly in the national security interests of the United States and will ensure that Iraq can realize its full potential as a democratic society. Our civilian-led presence is helping us strengthen the strong strategic partnership that has developed up to this point.
The proximate causes of the subsequent crisis in Iraq are, one, the construction of ISIS in Syria in the degeneration of the Arab Spring that combined with, two, the Iran encroachment upon the US-abandoned vulnerability of Iraq. Both conditions arose from post-Bush events that are related to fundamental errors made by President Obama, such as the 'lead from behind' approach to the Arab Spring, appeasement of Iran, and contravening the Strategic Framework Agreement with premature disengagement from Iraq, that sharply deviated from President Bush's course.
Iraq should have continued to progress with the careful aid of American leadership as a "strategic partner in a tumultuous region ... that can act as a force for moderation ... profoundly in the national security interests of the United States". Instead, what is happening to Iraq now is because Obama made the historic error of disengaging prematurely and leaving Iraq unprotected surrounded by danger instead of staying the course like President Eisenhower stayed the course with Korea. The necessary condition for securing and building the peace is security. Obama took away Iraq's security. Obama's foreign policy has created insecurity.
The issue of the President's legal authority to deploy the military to Iraq under current circumstances, absent a new statutory authority, presents interesting legal questions.
President Clinton deployed the military to Iraq throughout his presidency with the statutory authority of P.L. 102-1 (1991). President Bush deployed the military to Iraq with the redundant statutory authority of P.L. 102-1 and P.L. 107-243 (2002). Because a "specific statutory authorization" is equivalent to a declaration of war under the War Powers Act, within the constitutional scope, there is no domestic legal controversy over the US military mission with Iraq from 1991 to 2011.
The failure to negotiate a new Status of Forces Agreement with Iraq that was effective past 2011 was cited as the main reason for the withdrawal of US forces from Iraq. (Update: It's reported the US and Iraq agreed to a SOFA by executive agreement in June 2014, but I can't find an official announcement and text for it on-line.) However, did the departure of US forces from Iraq in 2011 coincide with an actual severing of all the relevant, or at least plausible, statutory authorities for deploying the military to Iraq? Or was some legal authority retained, perhaps applicable in the event of an emergency such as the current crisis, despite the physical removal of US forces from Iraq in 2011? I don't know; I hadn't thought about the post-OIF legality of deploying the military to Iraq without a new statutory authorization.
Note that the United States has a Strategic Framework Agreement with Iraq, which provides the overarching long-term conditions-based guidelines for the US-Iraq relationship. See the State Department press release, US Iraqi embassy statement, and a PDF of the agreement. Also see this CRS legal summary and CFR legal summary.
Add: September 2014 CRS review of the legal grounds for current military action against ISIS.
* The first question is whether Iraq-specific P.L. 102-1 and/or P.L. 107-243 are still live. Since they authorized the President to enforce the UNSC resolutions relevant to Iraq, a related question is whether the UNSC resolutions related to the security of Iraq are still live. For example, UNSC Res 1511 (2003) "authorizes a multinational force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq". Update: The answer is that the 17NOV08 Status of Forces agreement between the US and Iraq
* The second question is whether P.L. 107-40 (2001) or other counter-terror law cover the situation in Iraq "in order to prevent any future acts of international terrorism" (P.L. 107-40), especially if a plausible 'organizational' link can be drawn between ISIS and al Qaeda. Furthermore, the standing policy since the Clinton administration has been "the President has authority under the Constitution [Article II] to take action to deter and prevent acts of international terrorism against the United States" (P.L. 107-40). Congress has affirmed that the President's counter-terrorism authority derives directly from Article II of the Constitution rather than Congressional statutory authorization. The unsettled question, which was debated for OIF, has been the specific character of a threat that opens such authority. If President Obama can make the case that ISIS "threaten[s] the security of U.S. nationals or the national security (national defense, foreign relations, or the economic interests) of the United States," this seems the most likely route for Obama to take military action without seeking additional authority from Congress. Update: The President's counter-terror authority is the strongest legal basis for countering ISIS as long as the counter-terrorism neither targets nor is opposed by the sovereign nations, Syria and Iraq. The State Department has designated ISIS as a Foreign Terrorist Organization (FTO) and Specially Designated Global Terrorist (SDGT). UNSCR 2170 states, "ISIL is a splinter group of Al-Qaida", which activates the specific statutory authorization of P.L. 107-40 (2001) on top of the stated premise of P.L. 107-40 that the President holds inherent counter-terror authority under Article II of the Constitution. UNSCR 2170 also appears to re-activate the specific statutory authorization of P.L. 107-243. In addition to P.L. 107-40 and P.L. 107-243, see section 324 of P.L. 104-132 (1996), which states, "the President should use all necessary means, including covert action and military force, to disrupt, dismantle, and destroy international infrastructure used by international terrorists, including overseas terrorist training facilities and safe havens", Presidential Decision Directive/NSC-39 (1995), and Clinton's practical precedent for overseas military counter-terror action. War directed against a sovereign nation-state actor, such as the Taliban or Saddam, is a different issue than counter-terrorism directed against a non-state actor such as al Qaeda or ISIS in a foreign territory.
The third question is whether the US has an operative Congressionally approved multi- or bilateral security agreement (treaty) that covers Iraq. For example, President Clinton cited to the NATO treaty when he skipped Congress for the Balkans intervention. As far as I know, we only have the Strategic Framework Agreement with Iraq, which only states a commitment to "close cooperation" on defense and security issues. That does not by itself rise to a treaty.
The fourth question is whether there is a statutory authority linked with a security agreement under international law. For example, President Obama claimed the 'Responsibility to Protect' justification was authorized by the general US agreement with the United Nations covenant when he skipped Congress for the Libya intervention. I thought R2P was a weak stand-alone legal basis in domestic and international law to deploy the military even before Obama severely stretched an already controversial novel application of R2P in the Libyan regime change. Nonetheless, it is a precedent.
The question of statutory authorization may be rendered moot if a US entity is attacked in Iraq. According to 50 USC 1541 (1973) of the War Powers Act, other than by Congressional declaration of war or specific statutory authorization, the military can also be deployed by the President "pursuant to ... a national emergency created by attack upon the United States, its territories or possessions, or its armed forces." For example, a legal basis for OIF was Iraq firing on the American aircraft enforcing the no-fly zone pursuant to UNSCR 688. When I served with 2ID in Korea, we sometimes would joke that our function was less to stop (really, delay) a north Korean attack than to serve as a tripwire for the insertion of US-led UN forces.