Law Professors Talk Obama’s ISIS Strategy

Two Harvard Law School professors critiqued the legal grounds of President Obama’s military strategy against the Islamic State of Iraq and Syria during a lecture Monday.

Speaking to an audience of nearly 200 people at the Law School, professors Jack L. Goldsmith and Noah R. Feldman ’92 analyzed the Obama administration’s legal justifications for the increased use of U.S. military force against ISIS.

Obama has repeatedly condemned ISIS for alleged human rights abuses, and, in a recent address, announced a broad campaign to destroy the militant group.

Both professors dismissed the administration’s legal arguments, with Goldsmith characterizing the efforts as “scrambling to convince the public that there is a legal justification [for the use of military force].”

Obama has defended his policy by citing Article II of the Constitution, which defines the President as commander-in-chief of the armed forces, and the 2001 and 2002 Authorizations for Use of Military Force, which permitted former President George W. Bush to intervene militarily against al-Qaeda and the Iraqi government respectively, the speakers explained.

The President’s power to use military force without consulting Congress is detailed in the 1973 War Powers Resolution, but Feldman said the legislation’s 60-day limit on unapproved military action precludes its application in a conflict that experts predict will last more than two months.

While Goldsmith argued that the two AUMFs provide more plausible legal grounds for President Obama’s strategy, the 2001 AUMF only allows intervention against Al Qaeda and its affiliates—not ISIS—and the 2002 AUMF refers particularly to the use of military force against threats from Iraq.

Feldman identified two general assumptions that he said underpin Obama’s policy.

“First, if [military force] comes from the air, it is not war… and second, if the President is killing Muslims, he is authorized to do this by the two AUMFs,” he said.

Feldman quickly acknowledged that this was an “extremely cynical” analysis, but noted the value of considering this perspective.

The speakers did not express in detail their opinions on the practical merits of Obama’s policy, keeping the focus on the legal rationale for the use of military force without the explicit consent of Congress.

The lecture was organized by the Law School’s chapter of the American Constitution Society.