Against the backdrop of a collapsing ceasefire in Syria, President Obama announced last week that he approved the deployment of an additional 250 special operations troops to Syria, a marked increase over the 50 troops currently “advising and assisting” local forces fighting ISIS. Jen Daskal responded to the increase in troops with an op-ed in The New York Times urging President Obama to do more to engage with Congress on a new authorization for use of military force (AUMF) during his remaining months in office. Steve Vladeck followed up, discussing the dangerous precedent being set by Congress’s failure to act in relation to the use of military force against ISIS, leaving a broadly interpreted authorization open to even broader interpretations by subsequent administrations. Daskal is right that Obama should push Congress harder — and both Daskal and Vladeck are right that Congress should step up.
But Obama should not, and need not, wait for Congress to act in order to avoid leaving an amorphous and indefinite war as his legacy. Obama should define, clarify, and formalize the parameters of the current conflicts with various terrorist organizations in an executive order or presidential memorandum before he leaves office. Obama rightly disavowed the Global War on Terror moniker when he became president and has ever since been attempting to define who the United States is at war with, where, and on what legal basis. But these boundaries are set forth in scattered court filings, congressional testimony, a White House factsheet, a draft ISIL AUMF, and over half a dozen speeches without domestic legal force (e.g., here, here, here, here, here, here, here, and here). The years of effort spent clarifying the administration’s views on the key legal and policy boundaries are at risk of being for naught if the administration does not formalize them before Obama leaves office. The administration would be wise to synthesize these efforts into a single official document that defines and clarifies the parameters of the wars Obama will leave to his successor.
Signing an order won’t stop a future president or future Congress that is hell bent on expanding the existing wars from doing so. But it will make it more difficult for either to do so without good reason and without strong public support. Continue Reading »