As the threat of terrorism reemerges in Iraq, President Obama has already publicly announced that he has the power to use, without congressional approval, American military force to combat the spread of the Islamic State in Iraq and Syria (ISIS), and indeed to degrade and destroy the group.
There has been much ink spilled since this announcement was made on national television earlier this month. Many other editorialists have questioned the president's argument, whether commenting on if presidential candidate Obama would have been convinced by now-President Obama's position; opining on the weak legal argument that the 2001 Authorization for Use of Military Force (AUMF) would lend credibility to attacking an organization that did not exist on 9/11 and is locked in struggle with al Qaeda, the terrorist group that attacked Americans on that fateful day; or noting that the Constitution grants sole authority to declare war to Congress.
It is important to question not merely the legal bases of the administration's claim, but also the wisdom of establishing a national security policy without congressional aid. It is important to note that several national security experts have made arguments that congressional vetting of proposed executive actions improves the quality of the product, legitimizes the policy and lends itself to lesser chance of backlash, either by the public, the federal judiciary or Congress. In short, getting Congress's approval is often in the best interest of the president.
Jack Goldsmith, former assistant attorney general in the Office of Legal Counsel, current professor at Harvard Law School and author of two books about presidential power, has written that "When the executive branch acts in the secret world it defines for itself, it makes more mistakes than usual, and the mistakes are harder to correct because the normal checking functions of the government cannot operate."
Echoing Goldsmith, Director of National Intelligence James Clapper noted, in the aftermath of leaks exposing secret surveillance and data collection programs, that had the executive branch been transparent and gone to Congress and the people with the program goals and legal safeguards, "[w]e wouldn't have had the problem we had" when Congress and American citizens pushed back against those programs after Edward Snowden began to leak information about National Security Agency (NSA) data collection last year.
In his ISIS speech earlier this month, President Obama stated that he has "the authority to address the threat from [ISIS]." Let us hope, however, that his real position, stated in the sentences immediately following claim of authority, is thathe "believe[s] we are strongest as a nation when the president and Congress work together," and as such "welcome[s] congressional support for this effort in order to show the world that Americans are united in confronting this danger" is his true position.
Rather than claiming authority that may not exist to act without apprising Congress, Obama and others in his administration should act in concert with Congress to establish viable and effective programs to address the threat to the United States, Iraq and the Middle East that ISIS clearly poses.
It is an important lesson to learn that just because you have the power to take an action, does not mean that doing so is the responsible course of action.
Gibson is an associate professor of political science at Westminster College.