Obama’s New, Undeclared Iraq War

President Barack Obama’s war in Iraq just got more ambitious. 

Speaking to reporters before departing for a two week vacation with his family on Martha’s Vineyard, President Obama said the U.S. had to make sure the Islamic State “is not engaging in actions that could cripple a country.” 

Noting the foreign jihadists fighting with the Islamic State, Obama said, “There is going to be a counterterrorism element that we are already preparing for.” And while Obama stressed that the U.S. military cannot solve Iraq’s problems it “can play an extraordinary role in bolstering efforts of an Iraqi partner as they take the right steps to keep the country together.” 

No wonder the president said the new military campaign would last months and not weeks. 

All of these goals are fine as they are, but they go way beyond the mission Obama spelled out on Friday in a formal notification to Congress that he was launching air strikes inside of Iraq. 

That notification said the new missions would be “limited in their scope and duration as necessary to protect American personnel in Iraq by stopping the current advance on Erbil by the terrorist group Islamic State of Iraq and the Levant and to help forces in Iraq as they fight to break the siege of Mount Sinjar and protect the civilians trapped there.” 

Obama needed to inform Congress of the air strikes because the legal authority for the president’s new Iraq war stems from the U.S. Constitution’s Article II, which has been interpreted by modern presidents to allow the president to order military action abroad without the consent of Congress.

The 1973 War Powers Resolution requires presidents to notify Congress when invoking Article II powers and to seek authorization from Congress if the new conflict lasts more than 60 days. 

In this sense Obama’s new Iraq war is for now undeclared, even though the authorization for the old Iraq war remains on the books. Obama campaigned in 2012 in part on his accomplishment of ending the Iraq War and as recently as last month, his administration urged Congress to repeal the 2002 law that authorized it.

On Saturday, Obama got touchy when asked whether he regretted pulling troops out of Iraq at the end of 2011 after Iraq and the U.S. failed to reach a Status of Forces Agreement that would have shielded U.S. troops from the Iraqi justice system, as is common in other countries hosting American military personnel. He said if U.S. troops were in Iraq and the country fell apart the way it has in the last two years, the problem the U.S. would be facing would be worse. 

“What I just find interesting is the degree to which this issue keeps coming up as if this was my decision,” he said. “Under the previous administration we had turned over the country to a sovereign, democratically elected Iraqi government. In order for us to maintain troops in Iraq, we needed the invitation of the Iraqi government and we needed assurances our personnel would be immune from prosecution.”

However, in 2011 Maliki at one point did offer to extend immunity to U.S. troops absent a vote from his parliament. At the time, Obama and his top advisers rejected it because they argued any changes to the the U.S. agreement to keep forces in Iraq had to be approved by Iraq’s parliament, where it had no chance of passing. 

In June, Colin Kahl, who served as a senior defense official in Obama’s first term, wrote in Politico that Maliki’s offer to sign a memorandum of understanding extending legal protections to U.S. troops was not good enough.

“For any agreement to be binding under the Iraqi constitution, it had to be approved by the Iraqi parliament,” Kahl wrote. “This was the judgment of every senior administration lawyer and Maliki’s own legal adviser, and no senior U.S. military commander made the case that we should leave forces behind without these protections.”

Ironically Obama in 2014 is relying on the same kind of written assurance of legal immunity for U.S. forces without a vote in parliament that he rejected when it was offered in 2011 by Maliki himself. 

Either way Obama does not regret the decisions he made in 2011 that ended the U.S. troop presence in the country. He said even if U.S. forces remained in Iraq, they would be at risk because of the decisions made by Maliki to alienate and target his country’s Sunni minority. 

As for his critics who say he was wrong to pull out of Iraq, the president showed some teeth. “That entire analysis is bogus and is wrong,” he said. “But it gets frequently peddled around here by folks who often times are trying to defend previous policies that they themselves made.”