Judge Nap: New Authorization From Congress Is Needed to Go After ISIS
The White House is set to ask Congress for an authorization for the use of military force against ISIS.
The U.S. has been carrying out airstrikes against the terrorists, most commonly known as ISIS, in Iraq and Syria since August and September, respectively. In doing so, Obama has been relying on congressional authorizations that President George W. Bush used to justify military action after the terrorist attacks of Sept. 11, 2001. Critics have called the White House's use of post-9/11 congressional authorizations a legal stretch, though Obama has previously argued that a new authorization isn't legally necessary.
White House spokesman Josh Earnest said Thursday that the administration is dedicated to getting a new authorization with bipartisan support. He declined to comment on specific provisions, including how long the authorization will last, what geographical areas it will cover and whether it will allow for the possibility of ground troops. Earnest said those details were still being worked out.
"When it comes to fighting a war, the Congress should not tie the president's hands, House Speaker John Boehner, R-Ohio, told reporters Thursday morning. However, Boehner later added, "It's also incumbent on the president to make the case to the American people on why we need to fight this fight. This is not going to be an easy lift."
House Minority Leader Nancy Pelosi, D-Calif., said talks with the administration are focusing on an authorization time frame of three years, while the other issues are still being worked out. Pelosi added that she ultimately expects a compromise on the outstanding issues to be reached and added that she hopes Congress will repeal the 2002 congressional authorization for the war in Iraq while retaining the 2001 authorization for military action in Afghanistan.
"I'm not saying anybody's come to an agreement on it," Pelosi said. "I think it's going to be a challenge, but we will have it."
Judge Andrew Napolitano explained on "Special Report" that a new type of resolution from Congress is needed in order to authorize military force.
Napolitano said the United States has not formally declared war since December 1941 and never on a non-state entity like ISIS.
He explained that the United States has enacted statutes and signed treaties that limit a declaration of war to four circumstances.
"I don't think any of those pertain to the ISIS case," said Napolitano, acknowledging that the American public is so outraged by ISIS' actions that Congress probably will not want to "stand on the type of constitutional arguments that I am making as an impediment to getting rid of ISIS."
He said the post-9/11 authorization for the use of military force is "clearly inadequate" as a legal justification to attack ISIS in Syria and Iraq.
"The government needs something new, whether it's a traditional declaration of war, an AUMF or something that combines the two."
Charles Krauthammer said under the Constitution, "if Congress decides it needs to go to war it goes to war."
He said the AUMF is problematic because it restricts U.S. actions to certain territories, calling that "absurd" because ISIS exists in so many places.
"We declare war on the Islamic State and then we enjoy the rights of a belligerent, like a blockade and other steps that would not otherwise be available to us," said Krauthammer.
Watch the All-Star Panel discussion above and the preceding discussion about Jordanian strikes against ISIS below.