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International Politics

Obama, Ground Troops and Congressional Approval

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The air campaign against the Islamic State has entered its 43rd day since bombing officially began on the 8th of August[1]. Today, the Rafale fighters of our gallant French allies destroyed an ISIS logistical depot in north-eastern Iraq[2], marking the first sorties by non-US aircraft in the war and coming only 2 weeks after NATO’s agreement to join the US coalition. Merçi bien, Monsieur Hollande.

The air campaign has proven successful in stabilizing the situation and allowing the Iraqi and Kurdish forces to regain their balance. The application of close air support has helped local forces win some key battles and retake some key ground: the Mosul and Haditha dams and the town of Barwana. It remains an open question whether air power alone will suffice to destroy ISIS: the Kurds will be unwilling and possibly unable to push beyond their self-defined frontiers, while the Iraqi Army is still very much a force in the process of creation. Although the Iraqi Army has recently launched an offensive on Ramadi, Fallujah and Haditha to retake these three key Islamic State strongholds[3], their capacity to press home the fight is questionable. The Chairman of the Joint Chiefs, General Dempsey, has described half of the Iraqi Army as “incapable of partnering effectively with the U.S.”[4]

This has led the most hawkish members of Congress to criticize President Obama for his continued insistence that US ground forces will not be used against the Islamic State. This split has extended to serving members of the military, though with greater caution[5]: they are, after all, criticizing their Commander-in-Chief.

The President’s critics might not even be right regarding his abandonment of the use of ground troops. In addition to the air strikes being launched by the USAF and USN, the Navy also has two Carrier Strike Groups (CSG) and two Amphibious Readiness Groups (ARG) in the Persian Gulf and Arabian Sea. That includes the 4,000 Marines of the 11th and 22nd Marine Expeditionary Units. Furthermore, the Navy has three more carriers and two more ARGs with another 4,000 Marines on board conducting exercises near Guam. In other words, if the President so ordered, there could be 4,000 Marines in Iraq within 24 hours and another 4,000 within a week[6], assuming they don’t sail towards the Indian Ocean. This is a substantial increase of ships at sea from last week.

20140919_CVN deployments

Of course, the US could simply fly troops to Iraqi airbases in less time; but this option is also very expensive and time consuming. Troops are easy to move, but their heavy equipment is not, and there are only so many C-17 Globemasters available. Meanwhile, the MEU’s travel with all their gear on board. Undoubtedly, the President and Pentagon are hedging their bets: if the situation were to deteriorate rapidly for whatever reason, it´s comforting to know that Semper Fi is on station.

Having the power doesn’t mean the President is authorized to use it, and there have been many and insistent calls on Mr. Obama to seek specific Congressional authorization for the use of US forces against ISIS. The Constitution gives to Congress sole authority to declare war; and the War Powers Resolution of 1973 obliges the Executive:

“to notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days, with a further 30 day withdrawal period, without an authorization of the use of military force or a declaration of war.”

It is not clear that the Constitution is being called into question here. For one thing, war is declared between sovereign powers: the United States cannot declare war on John Doe, an individual; nor even on Al Qaeda, which is a terrorist organization. Notwithstanding the Islamic State’s self-proclaimed declaration as a Caliphate, it remains legally a terrorist organization operating in Syria and Iraq.

That doesn’t mean that the President is authorized to unilaterally use force against them. Even after the 9/11 attack, when the President could certainly have used the “self-defense” clause in his constitutional executive powers, Mr. Bush sought and was given explicit authority by Congress to go after Al Qaeda. This authority does not extend to ISIS. However, there are existing treaties with the Republic of Iraq that certainly cover the defense of Iraq’s territorial integrity and her people by US forces when requested by the Iraqi government.

The Strategic Framework Agreement between the United States of America and the Republic of Iraq states:

“Section III: Defense and Security Cooperation

In order to strengthen security and stability in Iraq, and thereby contribute to international peace and stability, and to enhance the ability of the Republic of Iraq to deter all threats against its sovereignty, security, and territorial integrity, the Parties shall continue to foster close cooperation concerning defense and security arrangements without prejudice to Iraqi sovereignty over its land, sea and air territory. Such security and defense cooperation shall be undertaken pursuant to the Agreement Between the United States of America and the Republic of Iraq on the Withdrawal of United States Forces from Iraq and the Organization of Their Activities during Their Temporary Presence in Iraq.”

Article 4 of the above cited treaty reads:

“Article 4 Missions

1. The Government of Iraq requests the temporary assistance of the United States Froces for the purposes of supporting Iraq in its efforts to maintain security and stability in Iraq, including cooperation in the conduct of operations against al-Qaeda and other terrorist groups, outlaw groups, and remnants of the former regime.”

Just as the President would not need the prior authorization of Congress to commence operations against an enemy attacking one of our NATO allies (though he should), President Obama’s current intervention seems to be legally covered by the treaties with Iraq and the fact that the Iraqi government has asked for our assistance. I still think the President should get congressional authorization, but his legal bases seem to be covered.

Where the President is on less solid ground is regarding the extension of operations into Syria. There is obviously no treaty with the Syrian government covering any military operations in their country. Furthermore, the Strategic Framework Agreement states:

“Section I: Principles of Cooperation

This Agreement is based on a number of general principles to establish the course of the future relationship between the two countries as follows:

4. The United States shall not use Iraqi land, sea and air as a launching or transit point for attacks against other countries; nor seek or request permanent bases or a permanent military presence in Iraq.”

That would appear to preclude any operations launched from Iraq against ISIS in Syria even if the President had Congressional approval. We would be in violation of our treaty with the Republic of Iraq; so airstrikes would have to come from Turkey or from Jordan. But only with Congressional approval, and even then, we should really seek the cover of a Security Council resolution declaring ISIS to be a threat to international peace and stability and authorizing military action against them. Otherwise, we would be in gross violation of Syria’s sovereignty without a fig leaf to cover us.

That’s the Common Sense point of view, though I’m no scholar on international or US constitutional law. Nevertheless, is seems highly probable that air operations will be extended into Syria, despite the illegality of the act by both American and international law. And it also seems likely that US troops will have a combat role in Iraq sooner or later.


 

Sources and Notes

[1] Chelsea J. Carter, Tom Cohen and Barbara Starr, “U.S. jet fighters, drones strike ISIS fighters, convoys in Iraq,” CNN, 09 August 2014

[2] Kim Willshire, “France bombs Isis depot in Iraq,” The Guardian, 19 September 2014

[3] “Iraqi Army Launches Offensive on Islamic State,” Newsweek, 17 September 2014

[4] Robert Burns, “Dempsey: Half of Iraqi Army Not OK as US Partners,” ABC News, 17 September 2014

[5] Craig Whitlock, “Rift widens between Obama, U.S. military over strategy to fight Islamic State,”, The Washington Post, 18 September 2014

[6] Guam is 5,300 nautical miles from Basra. At an average speed of 30 knots, it would take the ships approximately 7 days to reach their destination.

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