When The U.S. Military Strikes, White House Points To A 2001 Measure

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In the frantic days that followed 9/11, Congress moved to give the president new powers, among them the power to use force to defend the U.S. against future attacks. Next week marks 15 years since lawmakers passed that bill called the Authorization for Use of Military Force. It cleared both the House and the Senate with overwhelming majorities, just one no vote between both chambers. As NPR's Mary Louise Kelly reports, the law is far more controversial today.

MARY LOUISE KELLY, BYLINE: On a hot day last month, Peter Cook walked into the Pentagon briefing room.

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PETER COOK: Afternoon, Everybody.

KELLY: Cook is Pentagon press secretary. He had an announcement to make.

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COOK: I want to begin today with an update on the campaign to defeat ISIL wherever it tries to spread.

KELLY: ISIL, another term for ISIS or Islamic State.

(SOUNDBITE OF ARCHIVED RECORDING)

COOK: Today, at the request of Libya's government of national accord, the United States conducted precision airstrikes against ISIL targets in Sirte, Libya.

KELLY: The Pentagon press corps jumped in with questions. Why now? What are the targets? What's the end goal? Finally, well into Cook's briefing - this.

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COOK: Nancy (ph).

NANCY: Under what legal authority are these strikes being conducted?

COOK: Under the 2001 Authorization for the Use of Military Force.

KELLY: Take a minute to wrap your head around that. The 2001 authorization runs just 60 words. It grants the president a congressional stamp of approval to use force against those responsible for the 9/11 attacks and those who might have harbored them - in other words, against al-Qaida and the Taliban.

Today, a decade and a half later, the Obama administration argues that the authorization continues to apply to U.S. military actions in Afghanistan - also that it applies in Iraq, in Syria and beyond, including, as you just heard, the ongoing airstrikes in Libya against ISIS, a group that did not exist on 9/11. Here's President Obama laying out the case.

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PRESIDENT BARACK OBAMA: The United States is at war with al-Qaida, the Taliban and their associated forces.

KELLY: Associated forces - that's key. Many terrorism experts call it a stretch to count ISIS as an associated force of al-Qaida when the two groups are now actively fighting each other. The president and his lawyers argue that ISIS and al-Qaida share the same roots and that both are focused on killing Americans.

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OBAMA: So this is a just war, a war waged proportionally in last resort and in self-defense.

KELLY: Those comments are from a speech Obama gave in 2013. Since then, he has proposed a new legal authorization specifically aimed at ISIS. It went nowhere in Congress. Both Republicans and Democrats hated it, calling it too broad or not broad enough. Plus, after the Iraq invasion, casting a vote on military force carries political risk, so this is where things have stood ever since. Enter Captain Nathan Smith.

MICHAEL GLENNON: Nathan Smith is an Army intelligence officer.

KELLY: That's Michael Glennon, one of the lawyers supporting Captain Smith in a lawsuit, a lawsuit that names as defendant his commander in chief, Barack Obama. Here's the backdrop. Captain Smith is active duty. He was deployed to Kuwait as an Army intelligence analyst supporting the campaign against ISIS.

GLENNON: He argues that he has been given an illegal order and directed to obey an illegal order by the president.

KELLY: Illegal, Glennon says, because Congress never signed off on war against ISIS. Glennon, now a professor at the Fletcher School at Tufts, says this violates the War Powers Resolution, which, by the way, he helped draft as a Senate lawyer back in 1973. Today Glennon believes Captain Smith is stuck either fighting a war he does not believe is legal or risking court martial if he disobeys orders.

GLENNON: He is really confronted with a Catch-22.

KELLY: The solution - Glennon points to Congress. He says members need to step up and own the fight against ISIS.

GLENNON: That's the purpose of this lawsuit, and that's the vision of the Constitution - to hold members accountable for the decision to go to war.

KELLY: So if I'm hearing you correctly, you're not taking a position on whether any of these wars are just or not just. That's not the point. The point is, if the U.S. is going to go to war, Congress needs to authorize it.

GLENNON: That's precisely right.

GLENNON: Jennifer Daskal agrees. She's a former Justice Department lawyer, now a professor at American University. Daskal says the current state of affairs does not reflect the intentions of the founding fathers.

JENNIFER DASKAL: Congress is supposed to be declaring war, and the president's supposed to be making war. There appears to be a clear abdication of responsibility on behalf of Congress.

KELLY: And that, Daskal says, sets a dangerous precedent, writing future presidents a blank check for war. Now, some members of Congress are pushing to weigh in - prominent among them - Virginia-Senator-now-Hillary-Clinton-running-mate Tim Kaine.

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TIM KAINE: The 2001 authorization passed in the days after 9/11 is badly in need of an update.

KAINE: Kaine speaking on the Senate floor in 2014 - since then, he has repeatedly called on his fellow lawmakers to revisit the war authorization, a cause he could take to the White House if a Clinton-Kaine ticket wins in November.

Meanwhile another development to watch for this fall - a possible ruling in the lawsuit filed by Captain Nathan Smith. The government's latest brief is due to the court September 14, 15 years to the day since Congress passed the Authorization for the Use of Military Force. Mary Louise Kelly, NPR News, Washington.

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