Administration: ISIS war funding amounts to authorization

By Rebecca Kheel
07/13/16

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Congress’s funding of the fight against the Islamic State in Iraq and Syria (ISIS) amounts to a ratification of the president’s authority to pursue the war, the administration argues in a legal brief asking a federal court to dismiss a lawsuit that alleges the war is illegal.

“The president has determined that he has the authority to take military action against ISIL, and Congress has ratified that determination by appropriating billions of dollars in support of the military operation,” Benjamin Mizer, principal deputy assistant attorney general, and Anthony Coppolino, deputy branch director of the Justice Department’s civil division, write in the brief. ISIL is the administration's preferred acronym for the terrorist group.

“Congress has made these funds available over the course of two budget cycles, in connection with close oversight of the operation’s progress, and with knowledge of the authority under which the operation is being conducted,” they add.

The memo, filed Monday in court and highlighted Tuesday night by The New York Times, provides new insight into the administration’s justification for being allowed to prosecute the war.

Publicly, the administration has said past authorizations for the use of military force (AUMF) give it the power to deploy troops overseas to fight ISIS. Specifically, the administration points to the 2001 AUMF to fight al Qaeda, from which ISIS originated.

To a lesser extent, the administration has also cited the 2002 authorization for the Iraq War.

Still, President Obama has requested Congress pass a new AUMF to signal the United States’s commitment to fight against ISIS.

But Congress has been hesitant to take it up, with Republicans worried it would be too restrictive and some Democrats worried it wouldn’t be restrictive enough.

In the absence of an AUMF specific to the ISIS war, Army Capt. Nathan Michael Smith sued Obama in May. Smith, an intelligence officer stationed in Kuwait, argued that those Bush-era authorizations do not give Obama the authority to prosecute the war.

“How could I honor my oath when I am fighting a war, even a good war, that the Constitution does not allow, or Congress has not approved?” Capt. Nathan Michael Smith wrote in a May court filing. “To honor my oath, I am asking the court to tell the president that he must get proper authority from Congress, under the War Powers Resolution, to wage the war against ISIS in Iraq and Syria.”

In addition to arguing that Congress passing appropriations bills that fund the war amounts to an authorization of the war, the administration’s brief also points to policy provisions in support of the war in the National Defense Authorization Act, the president’s six-month letters to Congress on the progress of the war “consistent with the War Powers Resolution,” various other reporting requirements Congress has imposed and the numerous hearings Congress has held on the war.

The brief reiterates, too, that the previous AUMFs give the president the authority to fight ISIS.

The brief also argues that the judicial system does not have the jurisdiction to decide on war powers, which is the job of Congress and the executive branch.

“The court not only would have to pass judgment on the president’s determination that ISIL is an authorized military target, but it would have to do so in the midst of a live armed conflict, without the relevant expertise or access to the type of information necessary to render an informed decision, and without judicial standards to govern its analysis,” the 53-page brief says.

Further, the brief says, sovereign immunity prevents the lawsuit, and Smith does not have standing to bring it.

“A litigant’s injury cannot be based on the public’s generalized interest in enforcing adherence to the Constitution, and courts repeatedly have rejected the proposition that swearing an oath to support and defend the Constitution can transform such a generalized interest into a concrete harm,” the brief says. “And even if this theory of standing were viable, plaintiff cannot show that performing his official duties has forced him to violate his oath.”