- The Washington Times
Tuesday, September 23, 2014

With nearly two dozen attacks in Syria against both the Islamic State and the Khorasan Group, an al Qaeda offshoot that the administration said posed an immediate threat to the U.S., President Obama this week opened a new front in the war on terror that he said was winding down just a year ago.

The Pentagon said the Khorasan Group, made up of al Qaeda veterans who established a safe haven in Iraq, was “nearing the execution phase” of an attack either in Europe or the U.S. that demanded a preemptive strike to try to degrade their capabilities.

U.S. aircraft struck eight Khorasan targets in Syria, including training camps, a munitions production facility and a communications building, while an American-led coalition conducted 18 separate attacks — four in Iraq and 14 in Syria — on targets belonging to the Islamic State, the insurgents whose advance in both countries has forced Mr. Obama back onto war footing.

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“It must be clear to anyone who would plot against America and try to do Americans harm that we will not tolerate safe havens for terrorists who threaten our people,” Mr. Obama said at the White House Tuesday morning, minutes before flying to New York for meetings surrounding the opening of the U.N. General Assembly session this week.

The Obama administration pointedly noted it did not request permission from the Assad regime in Syria, which is fighting against both the Islamic State insurgents and a coalition known as the Free Syrian Army — the rebel forces the U.S. has chosen to back in the complex fight for control of the troubled country.

But The Associated Press reported that President Bashar Assad appeared to give a slight nod of approval on Tuesday, saying he supported “any international antiterrorism effort.”

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While members of Congress generally supported the president’s military tactic of using airstrikes, many of them said Mr. Obama is lurching into a legal morass with the attacks in Syria, which, until now, had not been part of the war on terror and had never been explicitly authorized by Congress.

The Obama administration asserted it had authority under the 2001 Authorization for Use of Military Force (AUMF) drafted three days after the Sept. 11 terrorist attacks on New York City and the Pentagon, which served as the commencement of the war on terror.

The AUMF authorized the president to go after the perpetrators of the Sept. 11 attacks, and a National Security Council legal adviser told reporters on Tuesday that they believe that covered the current sets of strikes as well.

The adviser said the Khorasan Group was made up of “al Qaeda veterans,” which made it a legal target, while the Islamic State, also known by the acronyms ISIS or ISIL, was born out of al Qaeda, and a recent split does not protect them from targeting.

“They were at war with the U.S. And it was only recently that they split with al Qaeda, but they remain at war and in conflict with the United States,” the adviser said. “Given the fact that we have been in conflict with them for many years, and that hasn’t changed, we don’t believe that Congress would have intended to remove the president’s authority to use force against this group simply because the group had a disagreement with al Qaeda leadership.

Still, there’s little doubt Syria was well beyond lawmakers’ thoughts when Congress approved the 2001 AUMF. Indeed, the country was mentioned just once during the House debate, when Rep. Brad Sherman cited the country as a source of terrorism, and once in the Senate, when Sen. James M. Inhofe, mentioned its weapons of mass destruction program.

Mr. Sherman, California Democrat, said Tuesday that the legal situation now is murky.

“ISIS did not exist on 9/11. It grew out of an al Qaeda affiliate that sprung up during the Iraq war, and it has left the al Qaeda fold, actually becoming a competitor. Whether war on ISIS is authorized by the 2001 AUMF is therefore almost a metaphysical question about what ISIS is, and its relationship to al Qaeda and associated groups,” he said in a statement to The Washington Times.

“The administration lawyers have convinced themselves the 2001 AUMF covers strikes against ISIS, including in Syria. They may be right, but we are on a much better footing legally with a new AUMF. That also gives us the opportunity to set limits on scope and duration of the current conflict,” the congressman said.

A spokesman for Mr. Inhofe, the Oklahoma Republican who raised Syria in the Senate’s 2001 debate, didn’t return a message seeking comment.

More than a dozen countries have seen U.S. military action stemming from the 2001 AUMF, ranging from Africa to Asia and even Georgia in Eastern Europe.

Mr. Obama had previously said the 2001 AUMF is outdated and would welcome an update from Congress, but has not proposed any new language himself.

Democratic congressional leaders this month have said they are comfortable with Mr. Obama’s actions so far, while Republican leaders have said they believe the president should come to Congress for permission — but the GOP leaders have declined to take the lead themselves in writing such a bill.

Louis Fisher, an expert on war powers who served for years as senior specialist at the Congressional Research Service, said under Mr. Obama’s interpretation, Congress authorized “any president at any time to do whatever they wanted against a terrorist group.” He said that is belied by the 2001 debate, which saw then-President George W. Bush request that kind of broad authority but saw Congress limit it for action against the perpetrators of Sept. 11.

“They’re scurrying around for some sort of authority that eliminates the need to get authority from Congress,” said Mr. Fisher, who is now scholar in residence at the Constitution Project.

He said it was telling that in the notices the administration is providing to Congress to comply with the War Powers Resolution, no mention is made of the specific statutory authority for the strikes — a violation of the War Powers Resolution’s rules.

Mr. Fisher also questioned whether the Justice Department’s Office of Legal Counsel had weighed in with an opinion.

A call to the Justice Department Tuesday wasn’t returned.

Defense officials said they were still assessing the impact of the strikes against both Islamic State and Khorasan Group targets, and could not say whether Muhsin al-Fadhli, the group’s leader, was killed in the strikes.

Senior administration officials briefing reporters on Tuesday indicated the U.S. would have attacked the Khorasan targets even if the Islamic State hadn’t prompted expanding the war on terror into Syria.

Mr. Obama and his top aides said the justice of their decisions can be judged from the coalition of more than 50 countries that are providing some support.

This week’s strikes on the Islamic State in Syria were conducted by Bahrain, Jordan, Saudi Arabia and the United Arab Emirates, with Qatar in a supporting role.

Meeting with coalition partners in New York, Mr. Obama said the first set of attacks was “obviously not the end of an effort, but is rather a beginning.”

Samantha J. Power, the U.S. ambassador to the U.N., also sent a letter Tuesday to U.N. Secretary-General Ban Ki-moon saying the American-led attacks were justified by Iraq’s own invitation and by international norms.

“ISIL and other terrorist groups in Syria are a threat not only to Iraq, but also to many other countries, including the United States and our partners in the region and beyond,” Ms. Power said.

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