RUTHFULLY YOURS

I’m temporary between road trips, so some quick thoughts on the newly launched U.S. bombing campaign against jihadists in Syria and Iraq.

1. As significant as the strikes on IS/ISIS are the attacks against al-Qaeda franchises that have not broken away from original al-Qaeda. I’ve been arguing for a few weeks (e.g., here) that IS/ISIS is not even half of the equation — that al-Qaeda is also more powerful than it was prior to 9/11/01. Shortly after that, we got congressional testimony from Obama’s national-security team and other administration statements to the effect that al-Qaeda could be a more imminent threat to attack the US (even if IS/ISIS is currently the more powerful of the two networks in Iraq/Syria).

2. If the administration is accurately stating that the al-Qaeda threat is imminent, the strategic importance of hitting al-Qaeda targets is obvious. But it is also worth considering the significant legal considerations.

The administration has been arguing that military action against IS/ISIS does not require congressional approval because it is covered by the 2001 authorization for the use of military force (AUMF) that applied to the 9/11 attacks and the 2002 AUMF that applied to Iraq. This argument may technically be correct (John Yoo makes a strong case for it, here and here), but it is debatable. IS/ISIS did not exist as such in 2001–02. It is, however, an al-Qaeda spin-off and the 2001 AUMF has been broadly construed to include other al-Qaeda franchises that exist now but did not on 9/11. The Iraq AUMF has also been very broadly construed . . . not to mention that the franchise IS/ISIS grew out of is al-Qaeda in Iraq (also known as AQI and AQIM — as in al-Qaeda in Mesopotamia).

But now, let’s add the al-Qaeda franchises into the mix (notwithstanding that they are in an on-again, off-again intramural jihad with IS/ISIS). There is no question that they are covered by the existing military force authorizations as those have been construed for the past 13 years (as I have long contended, this interpretation is a strained reading of the text, which has long needed overhauling). Equally significantly, consider the repeated recent statements by executive branch officials that the al-Qaeda franchises in Syria/Iraq pose “an imminent threat” to the United States. It is a longstanding doctrine, affirmed by the Supreme Court since the Civil War, that when there is an imminent threat the president has not only the authority but the duty to respond with any necessary force — it is an inherent power of the presidency under Article II of the Constitution and does not require a congressional green light.

The unleashing of the campaign of U.S. air strikes on terrorist targets throughout Syria last night may be the beginning of an offensive that will, as President Obama claimed this morning, “take the fight” to ISIS. If so, the bombings must be judged to be a commendable, if belated instance of presidential leadership. But as even the president’s cheering section at MSNBC and other liberal strongholds suddenly take on the appearance of being “war lovers,” it’s fair to wonder about one question that was uppermost on the minds of most of the media this past summer when other terrorists were being pounded from the air: what about the civilian casualties and infrastructure damage?

Accounts of the attacks on ISIS targets as well as those on the Khorasan group speak of strikes on bases, training camps, and checkpoints as well as command-and-control centers in four provinces and having been in the vicinity of several Syrian cities. Many terrorists may have been killed and severe damage done to the ability of both ISIS and the Khorasan group to conduct operations. The first videos of the aftermath of the bombings show members of the groups digging out the rubble and seeking survivors of the attacks. The surrounding area appears to be one of built-up structures. While some of these bases and command-and-control centers may well have been in isolated places, it is likely that many, if not most, were in the vicinity of civilian residences. All of which leads to the question that almost no one, at least in the American media, is asking today: what about civilian casualties or damage to infrastructure facilities that might severely impact the quality of life of those who live in these areas?

If we are being honest, the answer to such queries is clear: we don’t know. American forces conduct such operations under rules of engagement that seek to limit if not totally eliminate non-military casualties. But even under the strictest limits, civilians are killed in war. It is also to be hoped that all of the strikes were conducted with perfect accuracy, but that is the sort of thing that generally only happens in movies. In real life, war is conducted in an environment in which a host of factors make perfection as unattainable as it is in every other aspect of life. Which means it is almost certain that at least some Syrian civilians (a population that may include supporters of the terrorists and some who are essentially their hostages) were killed and wounded last night.