Can America be at war without “boots on the ground?”

The White House claims there is no war against ISIS without combat troops on the ground. The death of a young Marine in the Persian Gulf complicates that position.

Photo by Cpl. Katherine Keleher, Defense Video & Imagery Distribution System (DVIDS)

This article is the second in a three-part series on legal issues surrounding American involvement in conflicts in the Middle East. You can read Part One and Part Two here.

With growing concern about ISIS’s stronghold in parts of the Middle East, the logistics of how President Obama combats the terrorist group may seem by many to be “much ado about nothing.”  However, the White House’s public statements regarding their authority to use force against ISIS, consisting of calculated airstrikes in Syria and Iraq, has caused concern that the President is overstepping his Constitutional bounds.

Article I, Section 8, of the United States Constitution grants Congress the power to declare war.  Additionally, Article II Section 2 grants the president certain powers as Commander in Chief of America’s armed forces.

In addition to the constitutional outlay of power, Congress passed the War Powers Resolution, or War Powers Act, on November 7, 1973.  The Act was famously passed despite President Nixon’s attempt to veto the bill at the time of its introduction.  The main principle of the Act is the limitation of the president’s authority to send American troops into hostile territory.

The War Powers Act requires the acting president to report to Congress any introduction of troops “into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.”  Moreover, any use of force by the president must be terminated within sixty to ninety days unless Congress gives authorization for an extension of time.

Interestingly, President Obama has sent letters to Congress informing them about certain airstrikes in Iraq.  Yet, these letters, although mentioning the War Powers Resolution, are not necessarily “reporting” to Congress any introduction of troops into hostilities as defined in the Act.

Not surprisingly, presidents have long opposed the War Powers Resolution because of the restrictions it places on the Executive Branch.  Muddying the present day waters is the White House’s continued stance that they have not ordered American troops on the ground to combat ISIS (no “boots on the ground”).

The fact that American troops are not fighting ISIS on the ground demonstrates the ambiguity of the definition of “hostilities” as used in the War Powers Act.  The language of the War Powers Act determines if American troops are “introduced” into “hostile” situations by looking at the specific facts of each situation.

Questions about American military involvement in the fight against ISIS were raised when Cpl. Jordan L. Spears was declared dead in early October 2014, in what many news outlets deemed the first casualty in the fight against ISIS.  Even though Cpl. Spears was not killed on the ground fighting ISIS, it was stated that his involvement in the Persian Gulf was “related to the operations [against ISIS] that are going on, in some form or fashion.”

Despite the many difficult decisions that must be made while the United States battles ISIS, the president will always be accountable to the American public and our Constitution.  Although it may be easier for the president to directly authorize airstrikes against ISIS, the United States is at its strongest when the Legislative and Executive branches work in tandem.

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About Brady Ciepcielinski, Former Features Editor (16 Articles)
Brady Ciepcielinski served as the Features Editor of the Campbell Law Observer during the 2014-2014 school year. He received his Bachelor’s Degree in Finance with a minor in History from Virginia Tech in 2012. Brady has previously worked for Chief Bankruptcy Judge Randy D. Doub; Cobin Law, PLLC; the North Carolina Office of the State Auditor; and Rogers Townsend & Thomas, PC of Charlotte. Brady graduated from Campbell Law School in May 2015.
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