Saturday, November 8, 2014

The evidence is strong.

President Obama seems suffering from head injuries — perhaps a concussion from a bruising basketball encounter with legendary Michael Jordan after the two squabbled over Mr. Obama’s golfing aptitudes.

At first blush, no other explanation seems plausible for Mr. Obama’s intellectual incoherence in explaining legal authority for his initiating war against the Islamic State in Iraq and Syria three months ago.

The subject is supremely important. The war power is the most significant in the U.S. Constitution’s hierarchy. The president ordinarily can be expected to summon all the knowledge in his cranium and among his advisers in deciding legal matters implicating war and peace. No rational president would consider sending U.S. soldiers into harm’s way without the most meticulous and professional investigation of his authority for doing so.

Mr. Obama’s sub-sophomoric explanations for his war against IS thus bespeaks a concussion.

He initially argued the 2001 Authorization for Use of Military Force. It authorized force against al Qaeda because of its complicity in the 9/11 abominations. But IS was born several years later, and as an antagonist, not as an ally or an affiliate of al Qaeda. IS is not al Qaeda in any of its moods or tenses. Moreover, its sweling ranks are predominately filled by Muslim youths from around the globe who were children at the time of 9/11. Mr.  Obama inventively maintained, however, that at least some members of IS had defected from al Qaeda, and, that once al Qaeda, always al Qaeda; or, a leopard never changes its spots. Thus, Mr. Obama urged, Congress intended IS to be a legitimate war target based on an exiguous connection to al Qaeda — even though IS is attempting to destroy al Qaeda, the object of congressional wrath.

Mr. Obama soon lost confidence in his zany first argument and scrambled to cobble together a second. He asserted that the 2002 Authorization for Use of Military Force Against Iraq authorized the IS war because it was attacking the Government of Iraq (GOI) and creating a danger to the United States from Iraqi soil. That legal theory is even more imaginative than Obama’s first. The Iraq AUMF authorized military force against Iraq to defend the national security against hostile actions by the GOI then headed by Saddam Hussein. The entire Iraq war resolution references “Iraq” as the GOI, not the geographic territory within Iraq’s boundaries. Mr.  Obama’s counter-textual interpretation would mean that Congress intended to authorize war against Iran and set the entire Middle East ablaze if it dispatched troops to Iraq to oppose IS, to control the GOI or otherwise.

But that atextual conclusion startles, and the U.S. Supreme Court has repeatedly lectured that Congress does not intend to hide elephants in mouseholes. It speaks volumes that the Justice Department has remained aloof from Mr. Obama’s outre’ legal theories.

Three months into the IS war, Mr. Obama abruptly decided he needed specific congressional authorization to fight it — a tacit concession that war was and continues to be illegal until or unless Congress acts. He is currently seeking to negotiate language with the House and Senate.

Mr. Obama’s erratic or contradictory thinking about statutory authorization is puzzling because in 2011 regarding Libya he claimed inherent constitutional power to initiate war unilaterally in the name of “regional stability.” So why is he approaching Congress at all?

Maybe there is method in Mr. Obama’s madness.

He sees the IS war as a sinking ship. After-the-fact congressional authorization will enable him to shift or share the blame.

Constitutional law is often made of such political manuevering with ulterior motives. So much worse for the Constitution and the country.

For more information about Bruce Fein, visit brucefeinlaw.com.

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