President Obama has shifted his legal rationale for justifying military force to defend Syrian rebel forces battling the Islamic State in Iraq and Syria as the prospect has increased that they could come into conflict with Syria’s government.
The administration had been using a 2001 authorization approved by Congress after the Sept. 11 attacks to justify air strikes against ISIS.
“If Syrian government forces attack the Syrian fighters we have trained and equipped while they were engaging ISIL, the President would have the authority under Article II of the Constitution to defend those fighters,” a senior administration official told The Hill, using another acronym to describe ISIS.
The legal shift comes as the Syrian rebels are beginning to deploy back into Syria from their training sites.
This is raising the prospect that they will come into conflict with Assad’s forces, prompting the need for a U.S. response.
And the U.S. is not only protecting the rebels they've vetted and trained, but the groups they were recruited from and will return to — many of which have not been vetted.
In fact, a U.S. official said, the U.S.-led coalition already is providing those groups with air support against ISIS – even though they do not yet have U.S.-trained rebels embedded with them.
Asked whether the coalition would also support those groups against al Nusra and Assad without trained rebels, the senior administration official declined to comment due to operational security.
The Pentagon has refused to say how many groups they are working with in Syria. A diplomatic official close to the Syrian opposition said it used to be about a dozen, but some may have fallen off the list. On Friday, the Central Command spokesman said it was working with a “wide range" of groups.
“We're working with a wide range, and that's as specific as I can get,” said Air Force Col. Pat Ryder.
The diplomatic official said some of the groups may target Assad — which would bring the U.S. closer to war with the regime.
Already, things have not gone as planned. Although the rebels were trained to fight ISIS, the first rebels to return almost immediately came under attack by al Nusra — an al Qaeda affiliated group, prompting coalition airstrikes.
The administration maintains the U.S. can defend the rebels from al Nusra — al Qaeda's affiliate in Syria — using the 2001 AUMF.
So far, there has been no conflict with Syrian forces.
Both the expansion of the fight, and the shifting rational for its legality has drawn criticism from Congress.
Lawmakers in both parties have been critical of the White House’s strategy in Syria, and Obama appeared on the verge of an embarrassing defeat in 2013 when he initially sought congressional backing for air strikes against the Assad regime. He ultimately backed off after Russian President Vladimir Putin intervened with Assad.
Efforts to provide a new Authorization for Military Force (AUMF) to justify the fight against ISIS have gone nowhere. Democrats have demanded tight limits on the administration’s authority and Republicans have sought to provide the military with broad authority.
Legal scholars said using Article II to justify defensive actions as protecting the rebel groups from Assad is a stretch.
“That means nothing. That’s pretty bad when you have to cite Article II…You have to be more specific than that,” said Louis Fisher, scholar in residence at the Constitution Project and former Congressional Research Service researcher.
He and other legal experts say Article II has been interpreted to allow a president to “repel sudden attack” against U.S. troops, the U.S.mainland, and its interests.
Using it to defend Syrian rebels would not fit under that previous interpretation, he said.
“Invoking Article II is question-begging,” agreed Stephen Vladeck, law professor at American University.
Vladeck said Article II has also been interpreted to allow the U.S. to defend its “assets.”
However, he said “by that logic any person or piece of military equipment used by anyone on a side of a conflict with which we agree is all of a sudden covered by Article II. And that cannot be right.”
As recently as last month, Marine Gen. Joseph Dunford, the incoming chairman of the Joint Chiefs of Staff, told the Senate Armed Services Committee that the U.S. did not have the authority to conduct airstrikes against the Syrian regime.
“My understanding is that we don't have the legal authority at this time to go after the Assad regime. And it's also the policy of the administration not to go after the Assad regime militarily,” he said at a hearing on July 7.
The administration now is saying it will conduct “offensive” strikes against ISIS that would be justified by the 2001 AUMF, use the same AUMF to justify “defensive” strikes against al Nusra, and use Article II to justify “defensive” strikes to defend the rebels against the regime.
Some lawmakers are becoming increasingly uncomfortable with the blurred lines, one year after the airstrikes against ISIS first began.
Sen. Tim KaineTim KaineDemocrats exploring lawsuit against Trump Overnight Defense: US moving missile defense system to South Korea | Dems want justification for Syria strike | Army pick pushes back against critics of LGBT record Kaine, Schiff press Trump on legal justification for Syria strike MORE (D-Va.) and Rep. Adam SchiffAdam SchiffSchiff: Trump will blame Obama during his entire presidency Russia investigation 'back on track' after Nunes recusal Overnight Defense: US moving missile defense system to South Korea | Dems want justification for Syria strike | Army pick pushes back against critics of LGBT record MORE (D-Calif.) — Congress' two leading advocates of passing a new AUMF to authorize the war against ISIS blasted both the Congress and the administration.
“One year in, our service members are doing their jobs but they're still waiting on us to do ours,” Kaine said Wednesday.
“This dereliction of our duty must come to an end,” said Schiff on Thursday.
“When Congress returns in September, the Speaker must put an authorization of the war against ISIS on the agenda – the longer we wait the greater the damage to our system of checks and balances.”
-- Updated 12:34 p.m.