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Constitutional Scholars: Sustained Airstrikes in Iraq May Be Unconstitutional
Townhall.com ^ | August 13, 2014 | Daniel Doherty

Posted on 08/13/2014 5:53:30 AM PDT by Kaslin

The legality of President’s Obama’s sustained and targeted airstrike campaign in Iraq against ISIS forces is a matter of contention among some constitutional scholars.

What they all seem to agree upon, however, is that any targeted military operation, lasting no longer than a few days, does in fact pass constitutional muster (via The Hill):

“I think any conflict of a couple days in nature could be justified,” said Louis Fisher, a scholar at the Constitutional Law Project, “but as President Obama said last weekend, this is not going to be for just a couple days or weeks, it could go on for a year or two. …

Under the War Powers Act, Obama is required to report to Congress within 48 hours of the airstrikes commencing, Fisher said. At that point, he has 60 days to convince Congress to get on board, or else pull out the troops.

President Obama could extend that period by 30 days if the troops’ lives would be endangered by an immediate withdrawal.

By this legal reasoning, the president should already have asked for Congress’ permission to continue taking out ISIS military targets in Iraq. (He hasn’t). And yet, the situation only becomes more convoluted when legal experts deliberate on the nature of the attacks. Part of the reason airstrikes were first deemed broadly lawful is because they were launched outside the city of Erbil, with the explicit purpose of protecting American citizens. Recent airstrikes, however, are being launched solely to protect the ethnic minority population in northern Iraq. And while there might not be a moral difference between protecting American lives and Iraqi lives -- the US’ stated objective is saving as many lives as possible -- this nuance under the law has all sorts of legal implications:

Obama has defended the airstrikes against ISIS near Mt. Sinjar as a “humanitarian effort” necessary to prevent genocide.

The airstrikes at Mt. Sinjar are a “little different situation, because Obama’s not defending Americans,” [Professor Peter] Raven-Hansen said.

“President Obama, arguably, has no constitutional authority to use American forces in combat to defend foreigners,” he added.

Of course, that’s only one expert’s opinion, and not all constitutional scholars agree on this point:

Robert F. Turner, a national security professor at the University of Virginia, though, defended Obama’s actions in Iraq.

Turner said that Obama can continue ordering airstrikes against ISIS, because they are not a foreign state, just a terrorist group.

“What he’s doing, it’s not an act of war,” Turner said. “He’s essentially coming to the defense of Iraq. Nobody recognizes ISIS as a state. They’re not set up as a government, they’re just a band of terrorists.”

Whatever the case may be, the president has pursued targeted airstrike campaigns in the past without Congress' approval, and against the wishes of his top legal advisors. If he does this again, however, it's safe to say cries of executive overreach will only grow louder, even if his actions are warranted and well-intentioned.


TOPICS: Constitution/Conservatism; Culture/Society; Front Page News
KEYWORDS: constitution; iraq; military

1 posted on 08/13/2014 5:53:30 AM PDT by Kaslin
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To: Kaslin


2 posted on 08/13/2014 5:59:48 AM PDT by Iron Munro (<i>)
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To: Kaslin
Constitutional Scholars: Sustained Airstrikes in Iraq May Be Unconstitutional

Here's a hint to those would-be eggheads:

ANYTHING a foreign born usurper does is UNCONSTITUTIONAL!

3 posted on 08/13/2014 6:01:09 AM PDT by The Sons of Liberty (I want a Speaker who'll stick that pen and phone where no one but Reggie Love can find it!)
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To: Kaslin
Image and video hosting by TinyPic
4 posted on 08/13/2014 6:01:19 AM PDT by SoFloFreeper
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To: Kaslin
<> If he does this again, however, it's safe to say cries of executive overreach will only grow louder, even if his actions are warranted and well-intentioned.<>

Precedent trumps the supreme law. Just ask Scotus.

5 posted on 08/13/2014 6:01:46 AM PDT by Jacquerie (Article V. If not now, when?)
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To: Kaslin

Thanks for posting this.
I mentioned this a few days ago.

Yes, the situation in Iraq is serious.
But the United States military does NOT belong to Obama.

He did this in Libya, and now in Iraq. He is not being challenged.


6 posted on 08/13/2014 6:04:12 AM PDT by kidd
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To: kidd
the United States military does NOT belong to Obama.
He did this in Libya, and now in Iraq. He is not being challenged.

And he won't be. He has purged the upper echelons of anyone that would challenge him. Next test: Kill Americans.

7 posted on 08/13/2014 6:14:24 AM PDT by The Sons of Liberty (I want a Speaker who'll stick that pen and phone where no one but Reggie Love can find it!)
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To: kidd
"He did this in Libya, and now in Iraq. He is not being challenged."

And it is doubtful that he ever will. Pigmentation immunity goes a long way in PC America.

8 posted on 08/13/2014 6:14:43 AM PDT by Baynative (How much longer will the media be able to prop up this administration?)
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To: Kaslin

He already violated the War Powers act before this, and nothing happened. So, why should he care when he knows there are no consequences?


9 posted on 08/13/2014 6:32:46 AM PDT by Boogieman
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To: Kaslin
"Constitutional? You have got to be kidding me."

Former Speaker of the House Nancy Pelosi said that or words to that effect during questioning about the Constitutionality of OBAMACare before it was passed. That sums up the Democrat Party and Obama's disdain for our Constitution.

10 posted on 08/13/2014 6:49:05 AM PDT by mosaicwolf (Strength and Honor)
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To: Kaslin
He has two authorizations to use military force that are still in effect, the one passed after 9/11 and the one authorizing the Iraq invasion.

The real problem here is the languorous pursuit of inconclusive conflicts that are never resolved by outright victory.

11 posted on 08/13/2014 6:50:04 AM PDT by pierrem15 (Claudius: "Let all the poisons that lurk in the mud hatch out.")
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To: mosaicwolf

So? If there no consequences...So???


12 posted on 08/13/2014 6:51:18 AM PDT by hal ogen (First Amendment or Reeducation Camp?)
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To: Kaslin

These professors always rediscover the Constitution when the nation is at war, then forgets it at home at every chance. I think the Congress should declare war against ISIS and Islamic extremism. The Islamists know we’re at war, what good does pretending we’re not do?


13 posted on 08/13/2014 6:56:27 AM PDT by 1010RD (First, Do No Harm)
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To: Iron Munro

The idiots do believe anything.


14 posted on 08/13/2014 6:56:28 AM PDT by Ray76 (Nationally: Re-elect No One)
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To: Kaslin

All I can say in this case is that Obama did the right thing. And, Congress should approve!


15 posted on 08/13/2014 7:00:42 AM PDT by odds
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To: Kaslin

You forget that Barry is a constitutional scholar and he knows what he is doing /sarc


16 posted on 08/13/2014 7:33:43 AM PDT by Resolute Conservative
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To: Kaslin

Has anyone asked the ISIS constitutional law scholars what THEY think? Shouldn’t we be worried that ISIS might sue us for war crimes in the Hague? Have we heard from their lawyers?


17 posted on 08/13/2014 7:52:45 AM PDT by Flash Bazbeaux
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To: Iron Munro

Without the consent of the Senate it would be unconstitutional.


18 posted on 08/13/2014 7:58:03 AM PDT by Logical me
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To: Kaslin

This is impossible because 0bama is a Constitutional Scholar and Lecturer.


19 posted on 08/13/2014 8:35:15 AM PDT by Uncle Miltie (The GOP-e scum enlisted Democrats to steal the Republican primary. The GOP-e can go to Hell.)
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To: kidd
The main problem is the GOP wants the same power. Political parties worship at the feet of a mythical unitary executive.

That is part of why there is no real call for Impeachment.

20 posted on 08/13/2014 9:35:05 AM PDT by Theoria (I should never have surrendered. I should have fought until I was the last man alive)
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To: Kaslin

No need to comment. That’s why the tag line says what it says.


21 posted on 08/13/2014 12:02:18 PM PDT by upchuck (It's a shame nobama truly doesn't care about any of this. Our country, our future, he doesn't care.)
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To: Kaslin

Obama is worried about doing something that’s against the constitution? That’s funny.

I haven’t heard one republican demanding he get congress’ approval.


22 posted on 08/13/2014 2:32:35 PM PDT by VerySadAmerican (Liberals were raised by women or wimps. And they're all stupid.)
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To: VerySadAmerican

What is a Republican? What is a Congress?

Reading articles on this you would think they do not exist


23 posted on 08/13/2014 2:34:25 PM PDT by GeronL (Vote for Conservatives not for Republicans)
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To: Kaslin
The War Powers Act is not only unconstitutional, it is absurdly so.

First of all, the War Power of the United States is OUR power, delegated or granted to a Congress for a specific reason. It has NOTHING to do with the President, in fact, his designation as Commander-in Chief of the Army and the Navy only makes sense as the executor of powers located elsewhere.

Look at this: " the President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial Government of Japan…"

Authorized and directed. As it should be.

24 posted on 08/13/2014 2:40:17 PM PDT by Jim Noble (When strong, avoid them. Attack their weaknesses. Emerge to their surprise.)
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To: odds

“All I can say in this case is that Obama did the right thing. And, Congress should approve!”

No, no, no. Iraqi oil exported to the EU through Turkey will thwart Putin’s influence over the EU and delay his conquest of Ukraine and the Baltics. We can’t have that! Quick, we must alert the FSB Influence Agents to activate their conservative, anti-US government, isolationist assets to stop anti-imperialist aggression.

Quick, someone post the picture of John McCain with “ISIS spokesman Abu Masa” in Syria. We must make it clear this is all the fault of the US so the US has no moral authority to oppose ISIS or Russian conquests. We will tell them opposing ISIS or Russia is actually “helping Obama” improve his poll numbers. Is good.

/s


25 posted on 08/13/2014 3:06:08 PM PDT by Justa
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To: Kaslin

I’d go with Bob Turner’s statement. He’s a longtime friend of mine, a two-career Vietnam veteran (soldier and diplomatic staff), one of the US’s top scholars on law and war, and perhaps the top scholar on Thomas Jefferson and the wrongful reporting that TJ fathered a child with a slave named Sally Hemmings (it was his brother, re DNA tests).

Our Vietnam Veterans for Factual History (VVFH.org) just held a press conference in DC last week in which we discussed some of these issues re the Gulf of Tonkin Resolution and the circumstances around it re going to war against No. Vietnam.

There is, as Bob says, a major difference between going to war against an established state as opposed to taking counter-terrorism actions against a genocidal bunch of maniacs who have also threatened to attack our country.

I would add the following: Continue to kill all the Islamic Jihadist bastards and let the buzzards and lawyers sort them out in the sand graveyards of Iraq.


26 posted on 08/13/2014 4:12:21 PM PDT by MadMax, the Grinning Reaper
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To: pierrem15

To #11> Good observation about “two authorizations to use military force that are still in effect”.

One of my son’s medals for service in Kuwait and Iraq is the “Global War on Terrorism” one. He’s very proud of having received it.

I believe that this “Global War on Terrorism” authorization is also still in effect.”


27 posted on 08/13/2014 4:17:48 PM PDT by MadMax, the Grinning Reaper
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To: Kaslin

I’d go with Bob Turner’s statement. He’s a longtime friend of mine, a two-career Vietnam veteran (soldier and diplomatic staff), one of the US’s top scholars on law and war, and perhaps the top scholar on Thomas Jefferson and the wrongful reporting that TJ fathered a child with a slave named Sally Hemmings (it was his brother, re DNA tests).

Our Vietnam Veterans for Factual History (VVFH.org) just held a press conference in DC last week in which we discussed some of these issues re the Gulf of Tonkin Resolution and the circumstances around it re going to war against No. Vietnam.

There is, as Bob says, a major difference between going to war against an established state as opposed to taking counter-terrorism actions against a genocidal bunch of maniacs who have also threatened to attack our country.

I would add the following: Continue to kill all the Islamic Jihadist bastards and let the buzzards and lawyers sort them out in the sand graveyards of Iraq.


28 posted on 08/13/2014 4:23:51 PM PDT by MadMax, the Grinning Reaper
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To: Kaslin

I’m pretty sure that if he promises “days, not weeks” he has an eight month window for unlimited airstrikes.


29 posted on 08/13/2014 4:27:40 PM PDT by Flag_This (You can't spell "treason" without the "O".)
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To: MadMax, the Grinning Reaper

And I agree with you 100 percent


30 posted on 08/13/2014 4:35:31 PM PDT by Kaslin (He needed the ignorant to reelect him, and he got them. Now we all have to pay the consequenses)
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