Weighing military options in Iraq, US faces legal, tactical challenges

The Obama administration has been quietly considering using U.S. air power to bolster the Iraqi government in the face of a dramatic march toward Baghdad by fighters of the Islamic State of Syria and the Levant (ISIL). While the administration appears to have made no firm decision on any military action for now, a number of legal and practical challenges could stand in the way of a president who has been cautious, but not always unwilling to use force on foreign battlefields. 

An unnamed administration official told The Wall Street Journal on Wednesday that any military action in Iraq would be part of a “broader effort” to help contain ISIL. "What the president is focused on is a comprehensive strategy, not just a quick military response,” the official said. The New York Times reported that it had been told by a U.S. official that military action could take the form of limited drone strikes.

For now, the United States has turned down a number of requests from the Iraqi government to conduct airstrikes, an ask that was formally reiterated on Wednesday by the government of Prime Minister Nouri al-Maliki.

“We have a request from the Iraqi government for air power,” said Gen. Martin Dempsey, chairman of the Joint Chiefs of Staff, at a congressional hearing subsequent to Iraqi Foreign Minister Hoshyar Zebari’s entreaty to Washington.

According to The Associated Press and other reports, the administration will for now refrain from authorizing military options because of the difficulty of identifying clear targets and the fear of causing civilian deaths.

But what the administration has yet to publicly reckon with is whether military action would be legal or practical.

“The Constitution is clear,” Chris Anders, senior legislative counsel at the American Civil Liberties Union, wrote in an email, about the legal implications of any action. “At this point, the president has no authority to use any significant force in Iraq, including armed drones or other air power, unless Congress now authorizes it.”   

In conducting drone strikes without congressional approval in other theaters such as Pakistan, the administration has argued that such attacks are justified under the Authorization for the Use of Military Force (AUMF), the 2001 congressional authorization allowing the use of military action to go after the perpetrators of the Sept. 11 attacks. But while even that justification has been questioned by many, Anders says it has no bearing on the Iraqi battlefield of today.

“More than a decade ago, Congress passed a 2001 authorization for use of military force to go into Afghanistan, and a 2002 authorization for the use of military force against the regime of Saddam Hussein. But the 2001 AUMF is inapplicable to [ISIL] in Iraq or Syria, and the 2002 one has expired,” he wrote.

In addition to the legality involved, some experts also believe that any military action would either do nothing to address the long-standing political issues at the heart of the Iraqi state's dysfunctionality, or otherwise prove counterproductive militarily.

“Many in Washington will want to offer assistance to save Iraq from complete collapse,” wrote Marc Lynch, professor of Middle East studies at George Washington University, in The Washington Post. “But at the same time, U.S. policymakers understand from painful experience that such military aid will simply enable Maliki’s autocratic sectarianism and allow him to avoid making any serious concessions.”

U.S. officials have repeatedly insisted that the crisis in Iraq can't be resolved without political changes that address the widespread alienation of Iraqi Sunnis from the new political order in Baghdad. But there's no sign that Maliki is inclined to change course politically. Shortly before joining a congressional delegation meeting Obama to discuss the crisis in Iraq on Wednesday, Senate Majority Leader Harry Reid said, "It's time for the Iraqis to resolve it themselves." 

But the scale of the crisis was underscored, earlier in the day, when ISIL appeared to have captured Iraq’s largest oil refinery, giving greater urgency to the U.S. discussion on military action to support the Iraqi government.

Aside from the political aspect of the practical challenges to any military approach, others think any external intervention may actually help ISIL’s efforts to keep its recent gains. 

“ISIL planners are looking to the long-term securing and consolidation of an Islamist Caliphate,” wrote Paul Rogers, global security consultant with the Oxford Research Group, arguing that the group would try to hold onto its gains ahead of an expected counterattack from Maliki's forces and their allies. “The greatest short- or medium-term aid to this will be open Western military intervention in any form, even if restricted primarily to the use of armed drones.”

In his briefing Wednesday, Dempsey noted, “It is in our national security interest to counter ISIL wherever we find them.”

What remains to be seen is whether countering the group will for the Obama administration take the shape of military engagement, and whether in doing so the White House addresses the legal and practical challenges that have yet be reckoned with.