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Wednesday, October 26, 2016

By Marisa Taylor and Jonathan S. Landay, McClatchy Washington Bureau (TNS)

WASHINGTON — As U.S. military operations against the Islamic State approach the one-year mark, the White House has failed to give Congress and the public a comprehensive written analysis setting out the legal powers that President Barack Obama is using to put U.S. personnel in harm’s way in Iraq and Syria.

The absence of an in-depth legal rationale takes on greater urgency with Obama’s decision this week to dispatch up to an additional 450 U.S. military trainers and other personnel to Iraq and to establish a second training site for Iraqi forces in war-ravaged Anbar province, most of which is under Islamic State control.

The only document the White House has provided to a few key lawmakers comprises four pages of what are essentially talking points, described by those who’ve read them as shallow and based on disputed assertions of presidential authority.

“It’s very thin,” Rep. Adam Schiff of California, the senior Democrat on the House Intelligence Committee, said of the document.

Schiff contended that without a new congressional resolution that specifically confirms the president’s power to intervene militarily against the Islamic State in Iraq and Syria, Obama is overseeing a dangerous expansion of presidential war-making powers.

“This is opening the door to future presidents making war without any reliance on congressional authorization,” said Schiff. He added that Congress also is to blame because it has failed to pass a new resolution expressly authorizing the deployment of U.S. military trainers, advisers and security units to Iraq and the use of U.S.-led airstrikes that have been staged against the Islamic State in Iraq since August and in Syria since September.

The absence of a public legal analysis — replete with court rulings and historical precedents — constrains public debate on the growing U.S. military role in the tumultuous Middle East nearly four years after Obama pulled U.S. combat troops out of Iraq, and has hampered congressional efforts to forge a new resolution on the Islamic State, also known as ISIL or ISIS.

“The burden is on the administration to come forward and ensure that its legal basis is justified and appropriate,” said Raha Wala, senior counsel for Human Rights First, a nonprofit New York-based advocacy group. “In any democracy, we can’t operate with secret law.”

More significantly, by not setting out a legal case in public documents, Obama may be trying to preserve his flexibility to authorize new operations against the Islamic State or other extremist groups elsewhere, unfettered by constraints that could be imposed by Congress.

In his secretive and expansive view of presidential powers, some experts see Obama following the lead of his predecessor, George W. Bush.

The administration’s only public articulation of its legal position has come in speeches, letters and the four-page document provided to key lawmakers — titled “Legal Basis for U.S. Military Operations in Syria” — that was drafted around the same time of the first U.S. airstrikes on the Islamic State in Syria. By contrast, a secret 2010 Justice Department opinion — released by the administration under court order — that authorized the targeted killing of American leaders of al-Qaida runs 31 pages and cites extensive examples of domestic and international laws and U.S. court decisions in setting down a comprehensive framework for such operations.

When it comes to Syria and Iraq, the administration “has clearly articulated our legal authorities in numerous public venues including White House press briefings, congressional testimonies and other forums,” said a White House official who is knowledgeable of the issue but wasn’t authorized to speak publicly as a matter of practice.

The president’s legal team “engaged with lawyers from key departments and agencies in discussions about the underlying authorities for those actions,” said the White House official.

“It defies common sense to believe that the president has taken this type of action based on a four-page set of bullet points and not a full legal analysis by either the Office of Legal Counsel or the White House counsel,” said Chris Anders, senior legislative counsel for the American Civil Liberties Union. “This is too important of a decision to be made without that kind of legal advice.”

Initially, the administration argued that Obama could authorize military operations under Article Two of the Constitution, which designates him as the commander in chief of the U.S. armed forces.

But under fire from Congress, the administration adopted as its main arguments for Obama’s authority the 2001 congressional resolution that authorized the use of force against al-Qaida and “associated forces” and the 2002 resolution approving the invasion of Iraq and the overthrow of the late dictator Saddam Hussein.

The 2001 resolution “authorized the use of force against ISIL beginning in at least 2004, when ISIL, then known as al-Qaida in Iraq, pledged its allegiance to (the late Osama) bin Laden,” says the four-page document. “The recent split between ISIL and al-Qaida’s current leadership does not remove ISIL from coverage.

“Although the threat posed by Saddam Hussein’s regime in Iraq is the focus of the 2002 (resolution), the statute … has always been understood to authorize the use of force for additional purposes,” it says.

Those administration assertions, however, only generated more heat.

Critics dismissed the White House’s assertion that the Islamic State is an appendage of al-Qaida, pointing to the 2014 rupture between the two extremist organizations and the ongoing battles they’re fighting in Syria. Moreover, they say, the Islamic State didn’t exist in 2001.

Critics also reject the administration’s reliance on the 2002 resolution because Saddam is no longer in power and the situation in Iraq is radically different.

“There’s no question in my mind that the ongoing war against ISIL goes well beyond the existing 2001 and 2002 (resolutions),” said Sen. Tim Kaine, D-Va., who this week introduced with Sen. Jeff Flake, R-Ariz., draft legislation that would authorize the U.S. campaign against the Islamic State.

The White House and the Justice Department have refused to even acknowledge if the president has sought a written legal analysis underpinning his authority. The White House referred McClatchy to the Justice Department, which declined to comment.

(Anita Kumar contributed to this report.)

(c)2015 McClatchy Washington Bureau. Distributed by Tribune Content Agency, LLC.

File photo: U.S. President Barack Obama speaks on the legislation he sent to Congress today to authorize the use of military force (AUMF) against Islamic State in the Roosevelt Room of the White House Feb. 11, 2015 in Washington, D.C. (Olivier Douliery/Abaca Press/TNS)

  • Freedom Fighter

    That’s because he stands with isis!

    • Independent1

      Yeah!! Right!! I guess that’s why he’s made the effort to pull together a coalition of almost 50 countries that have pledged to at least try and do something to prevent the spread of ISIS. Only totally ignorant people would believe your idiotic post!!!

      • Freedom Fighter

        Wow! It’s sheep like you that put this POS f’cker in office, try opening your eyes and you will see he hasn’t done jack sh!t to get isis……………you people are f’cking robots that don’t use the brain God gave you…………….truly sad!

        • Independent1

          Hey! You did a great job of describing the level of your brain. I guess Congress refusing to give Obama the authority he asked for to expand the war on ISIS hasn’t got anything to do with the fact that more hasn’t been done??? HUH!!!!

          When are you going to take your head out of the sand and realize that it’s been months since Obama asked for that authority?????? HUH!!!!!!


        • Independent1

          And are you even SMART ENOUGH to understand this article???

          People in Congress are complaining Obama is DOING TOO MUCH without Congress’ approval??? Where do you have your head anyway??? Obviously where the light never shines!!!!

        • Independent1

          And as far as Obama being a POS, what does that make the last 5 Republicans??? Triple POS’s???? More has been accomplished beneficial to American in the past 6 years than was accomplished in the 28 years the last 5 worthless Republicans spent in the White House destroying America.

          Start thinking about anything really good for America that these 5 worthless Republicans did and they won’t come close to having accomplished even this very short list of what Obama has done- this is only about 1/4 of his accomplishments:

          1) Obama has presided over the longest stretch of continuous positive jobs growth in America’s history – more than 62 months and counting; with more jobs created in the 3 months ending in January of 2015 than had been created in any 3 month period in the past 17 years. (And more jobs in 6 years than were created in the 12 years that the 2 Bushes were in office.)

          2) The stock market has virtually tripled during the Obama
          administration (from a low around 6,600 to well over 17,000) with it reaching levels NEVER SEEN BEFORE which has improved the lives of millions of American retirees such as myself!!

          3) The Obama Administration has managed America’s economy in a way that has allowed its energy sector to expand during his presidency to the point that TODAY, America is the largest distributor of energy on the planet FOR THE FIRST TIME IN HISTORY!!

          4) The Obama Administration has rounded up and deported more troublesome illegal aliens that have been costing America billions THAN THE THREE PREVIOUS PRESIDENTS COMBINED!!

          5) Obama following through on the auto bailout has resulted in America’s largest manufacturing sector, the Auto Industry, recording profits the past couple years that haven’t been seen since Clinton was in office. And in that process arguably saved 1.5 million Americans their jobs and kept America from falling into a full fledged depression.

          6) During Obama’s time in office, deficit spending has come done FURTHER and FASTER than under any previous president IN HISTORY (from a 1.4T deficit in Bush’s last budget to under 500B for 2014 – reducing deficit spending more than 1T/yr in 5 budgets)!!

          7) During Obama’s time in off the unemployment rate has come down further and faster than under any previous PRESIDENT IN HISTORY!! (From 10.1% when the freefall Bush created turned around, to below 5.8% in less than 6 years.)

          8) The Obama administration started a war on fraud early in his 1st term, the spring of 2009, focusing on fraud in the defense and healthcare sectors which has resulted in bringing more fraud-related crooks to justice and recovering more illegally gotten government money than the last 3
          presidents combined.

          9) Obama pushed for a stimulus in 2009, that not only helped keep America out of a depression, but also invigorated the alternative energy sector to create alternatives to fossil fuels (solar, wind, hydro, tidal and plasma) that will greatly reduce demand for oil and coal in the near future; greatly helping the world’s efforts to combat global warming.

        • charleo1

          What have you done, “freedom Fighter,” A- hole to, “get ISIS?”
          You sorry Puke.

      • charleo1

        I wouldn’t waste my time with this copy and paste moron, Indy. He’s obviously not a serious person.

  • Dominick Vila

    I suspect that the rationale being used by the administration to deploy an additional 450 advisers/trainers is that this contingent are, theoretically, not going to engage in combat, and will only perform support operations. Having said that, I think President Obama is making a huge mistake escalating our involvement against ISIS in Iraq and Syria. We have already provided enough materiel and training to the Iraqi military to defend the opportunities we gave them and fight their own war. If they prefer to run every time they face the enemy, and leave the weapons we gave them behind, for ISIS to use, they don’t deserve any sacrifices by the USA or anyone else.
    Regarding the Republican feigned concern, let’s not forget that a few weeks ago Sens. McCain and Graham were criticizing the administration for not doing enough to stop the ISIS advances. Not surprisingly, the same Republicans who advocated greater intervention in Iraq and Syria, are the same ones who are now criticizing Obama for escalating our involvement to accomplish their purported goals. Looks like hypocrisy on steroids.

    • Independent1

      When are congressional people and even authors of articles going to do their homework??

      “This is opening the door to future presidents making war without any reliance on congressional authorization,” said Schiff.

      Opening the door?? Where was Schiff when President Truman sent troops into Korea on a moment’s notice to try and stop the spread of Communism back in June of 1950 with no authorization from Congress? Or President Eisenhower sent American advisers into Laos, to do the same thing, try and stop the spread of Communism in the Far East back in November of 1955 without any authorization from Congress?? Or how about when Reagan sent more than 300 Marines into Lebanon for some flimsy effort of his part where at least 241 of them got killed without any authorization from Congress??

      What’s going on with all our congressional people today that run around ignorant of the past and thereby making idiot comments; and especially about a president of your own party??

      This whole article is about as flimsy as it gets!!! Numerous presidents in the past have done far more than Obama in getting American advisers and troops involved in some form of military confrontations and with no more ‘legal rationale’ than Obama has provided.

      • Dominick Vila

        …and JFK’s decision to send “advisers” to Vietnam. As you pointed out, this is new. The only thing that is new is the fact that we have an African American in the Oval Office, and a media more interested in market share than objective journalism.

    • CPAinNewYork

      Doesn’t it remind you of the rationale put forth to justify our involvement in Viet Nam?

      • Dominick Vila

        The similarities could not be more apparent. We must stand up to the arms industry and the warmongers who are willing to sacrifice our young to make a profit and pursue their geo-political and economic goals.

        • CPAinNewYork

          Further: it was Eisenhower, a departing Republican president, who warned against the dangers post by hte “military – industrial complex.” Instead of “complex,” he should have termed it “conspiracy.”