John Locke Update / Research Newsletter

The North Atlantic Treaty, the Constitution, and the War Against ISIS

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Last week’s horrific terrorist attack in Paris seems to be causing changes in the way policymakers think about the rise of the Islamic State in Iraq and Syria, and, one way or another, those changes are likely to have an impact here in North Carolina.

One very obvious change is in how policymakers think about the danger of ISIS agents entering the country disguised as Syrian refugees. On Monday Pat McCrory joined a growing list of governors who want to completely halt the flow of refugees into their states for that reason. ABC News quoted the Governor saying:

We have an act of war going on that could come to our country and my job as governor is to protect the people of our state while also showing empathy to those people who are being harmed by terrorists.

Because so many North Carolinians are actively serving in the military or have loved-ones who serve, however, the biggest impact here may come from changes in the way the President and Congress think about how to wage war against ISIS.

Until now, the President has been waging that war on his own initiative, without Congressional approval and without a formally constituted group of allies. In addition to raising new questions about the efficacy of that approach, the terrorist attack in Paris has opened up new alternatives. That’s because the United States and France are both parties to the North Atlantic Treaty, Article 5 of which states:

The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them … will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.

France has already begun a series of retaliatory air strikes against ISIS in response to last week’s attack, but Article 5 would appear to justify military action against ISIS by other NATO members as well, either individually or in coordination with others. This possibility is already being discussed in the press (see here, here, and here), and at least two presidential candidates (Marco Rubio and John Kasich) have called for a coordinated NATO response.

The United States, of course, is already at war with ISIS, and because of Article 5 the Parisian attack could have an impact on the status and conduct of that war even in the absence of a formal NATO response. At the Volokh Conspiracy blog, David Bernstein observes that:

U.S. military action against the Islamic State is currently illegal; it violates the Constitution and the War Powers Act, and it can’t reasonably be justified as covered by Congress’ 2001 authorization of the use of military force against Al-Qaeda and its enablers….

But now the administration has a golden opportunity to make any future military action against Islamic State lawful. The Islamic State has attacked France. France is a NATO ally. The president could invoke the NATO treaty, which obligates the United States to come to France’s aid. The war against the Islamic State would rest on sound legal authority, with no congressional involvement (beyond funding, which Congress is already doing) needed.

To which Bernstein’s co-blogger, Ilya Somin, adds:

Article VI of the Constitution makes treaties the "supreme law of the land" if they were made "under the authority of the United States." This, at the very least, allows the president, with Senate ratification, to make legally binding commitments to use the powers of the federal government, which clearly include the power to wage war, and otherwise use military force. Article 5 of the North Atlantic Treaty is such a commitment, and it pretty clearly applies in this case.

Not every legal commentator agrees. At the Opinio Juris blog, Julian Ku writes:

I agree with Ilya that the Obama Administration’s current domestic legal justification for the war against the Islamic State is sketchy at best.  But I am not sure I agree with him that [Article 5] should be read as a "pre-authorization" for the President to use military force without going back to Congress for a specific authorization….

[Article 11] of the North Atlantic Treaty states that "[t]his Treaty shall be ratified and its provisions carried out by the Parties in accordance with their respective constitutional processes."… If you are someone who believes that Congress must authorize the use of force by the President in most cases, than this language would mean that the President has to go back to Congress….

In any event, I don’t think it makes sense to read the NATO Treaty as saying much at all about domestic allocation of war powers.  The main legal purpose of [Article 5] was (is) to allow NATO countries to act consistently with the U.N. Charter’s limitations on the use of force (such as they are).  Invoking [Article 5] … might have mattered if the U.S. and France weren’t already using military force against ISIS in Syria in ways somewhat inconsistently with the UN Charter.  But they have been bombing for months already, so I am not sure it is even worth invoking [Article 5] at this point.

Regarding Prof. Ku’s point about Article 11, Somin says:

In the event of an enemy attack on the US itself, the president has the legal authority to use force…without additional congressional authorization…. Article 5 [gives] him the same authority to use force as he would have in the event of an attack on the United States itself. All of this is in accordance with US "constitutional processes."

And regarding Ku’s point about "the main legal purpose" of Article 5, Somin adds:

The true main purpose of Article 5 is to commit the signatories to a system of collective defense against attack — a commitment originally necessitated by the threat of the Soviet Union, but not limited to that specific danger. Empowering the president to assist an ally under attack without having to seek congressional authorization pretty obviously facilitates that purpose, as it makes the US commitment to defend its European allies more credible and certain.

Of course, if Congress were to exercise its constitutional authority by declaring war on ISIS all of these legal arguments would be moot, and one presidential candidate at least is proposing exactly that:

Jeb Bush wants the United States to declare war on ISIS.

Speaking on "Meet the Press" on Sunday, Bush addressed the recent attacks in Paris and said that he believes America has a responsibility to lead in the fight against what he called "this radical Islamist threat."…

"This is viewed as a law enforcement exercise by the Obama administration. We should declare war," Bush said. "We have the capabilities to do this. We just have to show the will."

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Jon Guze is Director of Legal Studies at the John Locke Foundation. Before joining the John Locke Foundation, Jon practiced law in Durham, North Carolina for over 20 years. He received a J.D., with honors, from Duke Law School in… ...

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