Is the president's ISIS campaign even legal?

The Atlantic's Conor Friedersdorf says I give President Obama too much leeway to wage war without having to explain why. That's not exactly my position.

For the record, I think the president should ask Congress for its approval on his ISIS campaign. I also think the 2002 Authorization For the Use of Military Force against al Qaeda and associates should be declared null and void. These are not political judgments; they are judgments based on my evaluation of what seem to be the most persuasive arguments. And I am open to revising them.

I also think that the president's constitutional authority is broad enough to cover a campaign like this without going to Congress, but that, if given the option, he should. The international legitimacy of his actions would be bolstered by the concurrence of the legislative branch, at the very least, as would the likelihood that support for his policy will endure these initial stages.

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I'm not an expert, though, and I would like to see the president openly and transparently explain how his executive powers can accommodate a military campaign against a second-order threat to national security when there is no intelligence that ISIS is planning to attack the United States' contiguous territory imminently. (I realize that this administration has a weird view of what constitutes "imminence.")

I agree in general that the more cavalier the president is with his legal justifications, the more difficult it will be to convince anyone that he has made serious efforts to re-balance the distribution of national security power after the Bush years.

I know, however, that Congress has a ridiculously compact schedule and that even though Republicans tend to support this campaign, the leadership isn't eager to junk the schedule and throw this in. The White House believes that Democrats are scared to death of losing any base voters in November and would oppose anything unpopular with liberals. You can almost sympathize with a president who wants to avoid all that theater just to get a stamp of approval on something he's going to do anyway. Almost.

It does now follow that, because the president has not articulated in public the reasons he believes the AUMF applies, he does not or should not proceed as if he had or did. As a first-order priority, he will do what he needs to do to prosecute a real threat he perceives. For the sake of people who believe that he MUST be limited in his power here, I don't think anything he says will ever persuade them otherwise.

He should care, principally, about the precedents he sets because those precedents will be the foundation upon which future presidents wage ever more complex and nonlinear military campaigns against enemies who present themselves asymmetrically and without being tethered to a state.

Moreover, his responsibility, such as it is, to explain himself and to willingly subject his power to checks, is something that exists independently of whether or not you or I agree with him doing it. As Friedersdorf has pointed out many times in his essays on the NSA, the president cannot arbitrarily separate certain parts of the Constitution from others. He has not recognized this responsibility as vital in this instance.

I don't think this is because he does not care about it. I think it's because he cares about it less. It's okay to ask that he care about it equally. It's a stretch to suggest that he should care about it more.

When Conor and I have debated in the past about the essential wrongness of certain policies, I have argued that double standards are appropriate where qualitative differences in the intent, conception, and execution of policies are such that one label cannot possibly do justice to the range of considerations that reasonable people should make when deciding whether they are good, bad, right, wrong, moral, immoral.

(Torture is horribly immoral regardless of whether it "worked," and we know it didn't. Some of the NSA's domestic surveillance programs are troubling and others aren't; its compliance problems comical; its excessive secrecy counterproductive; its foreign intelligence activities are essential to the continuity of the state. The level of harm differs. He and I might disagree, but — well, you get my point. )

Where he and I agree is that far too often, the constraints on executive power appear too late in the process of determining these policies to meaningfully influence them. He and I might disagree about why this is so, but we can both agree that presidents who claim legitimacy must submit themselves to such constraints even if Congress ignores its responsibility.