Before President Obama does anything else in the lame-duck Congress or the new one in January, he needs forthrightly to seek an update or new authorization for the new war he's fighting against the Islamic State in Iraq and Syria.
Although he has said that he already has legal authority under the authorization of use of military force (AUMF) voted in 2001 after the 9/11 terrorist attacks, it's a very flimsy crutch to lead on, and it should be strengthened.
For one thing, the targeted enemy, also known variously as ISIS or ISIL, did not exist at the time of the assaults on the World Trade Center in New York and on the Pentagon. For another, the 2001 AUMF referred to going after the perpetrators of the 9/11 attacks, known to have been harbored in Afghanistan, rather than in Iraq or Syria.
Mr. Obama has initiated an entirely different war, about which Congress has neither been asked for its permission nor expressed a clear position on either its wisdom or legality. Although the Islamic State's beheadings of captives, including three Americans, is undeniably brutal and inhumane, this country still is governed by law in its response.
The constitutional assignment to Congress of the power to declare war remains clear in Article I, Section 8, though presidents both Democratic and Republican have chosen to ignore it ever since FDR invoked it against the Axis powers after Pearl Harbor.
The War Powers Resolution of 1973 also remains in place, though frequently also ignored or given lip service at best. In general it requires the president to inform Congress of any use of force and to keep it informed with periodic reports at least every 60 days, or the authority lapses.
One Democratic senator, Tim Kaine of Virginia, has called for at least an update of the 2001 AUMF and also of the 2002 AUMF for George W. Bush's invasion of Iraq. But House Speaker John Boehner has argued that any action should await the swearing-in of the new Congress in January rather than being considered in a lame-duck session of the Congress still sitting.
"Doing this with a whole group of members who are on their way out the door, I don't think that is the right way to handle this," he told the New York Times.
Much earlier, the Obama White House told the Times: "The president may rely on the 2001 AUMF as statutory authority" for the air strikes he is directing against the Islamic State and that "the 2002 Iraq AUMF would serve as an alternative statutory authority basis" inIraq. But it added: "Even so, our position on the 2002 authorization hasn't changed. We'd like to see it repealed."
In a weekend Washington Post op-ed, a former legal counsel of the Bush Justice Department, Jack Goldsmith, now a Harvard law professor, and two others at NYU and American University offered a comprehensive approach to repealing and updating the old authorizations.
They called specifically for identifying the targeted enemy with full transparency to Congress and the public, while complying with international law regarding sovereignty, and sunsetting all authorizations by 2017. The proposals, they said, came from former legal experts in both the Bush and Obama administrations.
"If the principles became law," they wrote, "they would give the president all of the authorities he needs to conduct the current the armed conflicts against terrorist organizations, give those armed conflicts Congress' contemporary imprimatur, ensure that we do not slide into endless war without deliberation and choice...."
Mr. Obama has already stirred up Republican hostility in Congress by promising early executive action on immigration reform. He and the country would be better served by dealing first with the confusion over the legality and reach of his intentions in confronting the new military threat in the Middle East.
He should do so openly in conjunction with Congress -- or at least require the legislators of both parties to take a clear position on this critical issue of national security, and war and peace.
Jules Witcover is a syndicated columnist and former long-time writer for The Baltimore Sun. His latest book is "Joe Biden: A Life of Trial and Redemption" (William Morrow). His email is firstname.lastname@example.org.