Could Obama Wage War In Iraq Without Congressional Approval Because The 2002 Resolution Remains In Effect?

June 13, 2014 - 11:04 AM

As the Islamist ISIS [Islamic State in Iraq and Syria] forces bears down on Baghdad, the United States assured Iraqi government leaders that they have our full support.  ISIS has overrun most of Northern Iraq; formerly known as Al-Qaeda in Iraq, and seeks to establish an Islamist state.  Al-Qaeda split ties with the group in February of 2014.

But, as the Obama administration ponders what to do, does the president know he can still wage war to help the embattled nation without congressional approval?  Yep, the 2002 authorization to use force in Iraq under the Bush administration never expired (via Roll Call):

President Barack Obama has the authority to wage war in Iraq without going to Congress, because the original use of force authorization remains in effect. Obama said Thursday he's "not ruling anything out" in Iraq, as rebels have swept through some of that country's largest cities and are bearing down on Baghdad.

But White House Press Secretary Jay Carney appeared to walk back Obama's comment at his briefing.

"We are not contemplating ground troops. I want to be clear about that. The president ... was answering a question about airstrikes," Carney said.

When asked about getting Congress's permission to take action, Carney was noncommittal.

"We are in active consultation with members of Congress," he said.

He demurred when asked directly about the 2002 authorization to use military force (AUMF). An administration spokeswoman, Caitlin Hayden, told Yahoo's Olivier Knox in January "the administration supports the repeal of the Iraq AUMF."

Hayden emailed CQ Roll Call late Thursday and to reiterate that what she said then remains in effect.

...

Some Capitol Hill sources believe Obama could still act using other authorities, including the broad war on terror AUMF passed by Congress after the Sept. 11, 2001, attacks, even if the Iraq AUMF is repealed. Obama has used that authority for drone strikes in a number of countries.

A recent Congressional Research Service report says the AUMF in Iraq had no expiration date and has not been repealed. Therefore it remains current law, "although its continued effectiveness is questionable.

Nevertheless, given the president's negligence to inform Congress about the Bergdahl swap, he'll probably face intense opposition from the Hill, including members of his own party.