by Neil J. Kinkopf, Professor of Law, Georgia State University College of Law
A growing chorus of legal scholars has argued that President Obama’s move against the Islamic State of Iraq and the Levant (ISIL) lacks legal authority. Professor Noah Feldman has most recently added his voice. He first made the claim on Tuesday in a blog post and repeated it Thursday on NPR’s “All Things Considered.” Feldman assures his readers that “We can dispense quickly the justifications that the administration has proffered ….” True to his word, Feldman dispenses with the arguments quickly – too quickly, leaving his analysis facile and utterly unpersuasive.
In fact, at least three sources firmly establish the President’s authority to proceed against ISIL.
1. Days after the terrorist attacks of September 11, 2001, Congress specifically empowered the President to respond. Under the 2001 Authorization of Use of Military Force, “the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons ….” Prof. Feldman argues that this law does not support the President’s action against ISIL. Here’s the full argument:
The 2001 authorization is less applicable still. In it, Congress told the president he could make war on anyone he determines to have “planned, authorized, committed, or aided” the Sept. 11 attacks. The George W. Bush and Obama demonstrations [sic] have vastly expanded this language to cover al-Qaeda affiliates and spinoffs that didn't exist in 2001. But even these extensions don't cover Islamic State, which is not only unaffiliated with al-Qaeda but also at war with its affiliate in Syria, known as the Nusra Front.