How Not to Authorize Force Against ISIS: A Response to Jack Goldsmith

Over at Lawfare, Jack Goldsmith appears to suggest that President Obama’s decision to authorize limited uses of force in Iraq underscores the need for an open-ended congressional use-of-force authorization to deal not only with the specific threat posed by ISIS there, but the “Islamist threat,” writ large. As he writes in support of his call for a new force authorization, “Given the large and growing nature of the Islamist threat, not just in Syria and Iraq, but elsewhere, I do not see how the President can protect U.S. national security interests with exceptional and limited uses of force under Article II.”

In our view, this would be a dangerous and unjustified leap.  Jack’s reasoning to the contrary notwithstanding, the way the politics of military force are unfolding in Iraq is exactly the way we believe that they should–as we have discussed here, here, and here. The President has identified a grave threat to U.S. persons in Iraq — as well as an imminent genocide — and has authorized limited, targeted strikes in response. Presumably, as Jack notes, this is being done pursuant to the President’s self-defense authorities under Article II.  And assuming that the threat persists and/or cannot be adequately ameliorated through self-defense authorities, the President absolutely can and should go to Congress to obtain more formal authorization for additional uses of force. Indeed, on this point, we and Jack appear to agree. But the type of request that should be made and authorization granted should be tailored to the specific threat posed.  Whereas Jack worries about “the large and growing nature of the Islamist threat, not just in Syria and Iraq, but elsewhere,” we worry about Congress going further than it needs to by authorizing forward-looking military force in cases in which it is not yet necessary–and may never be.

Indeed, in our long-running debate over future use-of-force authorizations, the central point of contention between us, on the one hand, and Jack and his co-authors on the Hoover Institution white paper, on the other, is not whether Congress should ever provide new use-of-force authorizations in these contexts; it’s (1) when; and (2) to what end. We agree with Jack that it would be a good thing for the President to go to Congress to get an authorization for any ongoing uses of force to both protect US persons and avert a humanitarian crisis in Iraq. But the notion that the possibility of future threats posed by other “Islamist” groups elsewhere justifies anything more at this point is not just unsupported by the facts; it would be a very dangerous precedent to set going forward politically, legally, and morally.