Does ISIS threaten the United States? If So, the American People Deserve to Know How.

The swift advance of the Islamic State of Iraq and Syria (ISIS), and their self-proclaimed caliphate, under the name the “Islamic State,” has led to the deployment of additional U.S. advisors and reconnaissance assets to Iraq, as the United States considers its options in responding to the crisis in the region. Fears of a potential threat to the United States were first raised in early June, when ISIS seized Mosul, Iraq’s second largest city. President Obama said that “this poses a danger to Iraq and its people, and given the nature of these terrorists, it could pose a threat eventually to American interests as well.

There is no doubt that the spread of a vicious group like ISIS, that butchers its enemies and has no regard for human rights could pose an eventual threat to American interests. Last week, Secretary of Defense Chuck Hagel expressed the threat posed by ISIS as more pressing, stating, “make no mistake … ISIL [alternate name for ISIS] may not appear to be an imminent threat to the United States. It is a threat to the United States. It is a threat, a clear threat to our partners in that area, and it is imminent.” Secretary Hagel’s comments are significant due to the legal implications of declaring ISIS an “imminent threat.” An imminent threat to the United States permits the President to exercise his Article II authority to take military action against that threat. Responding with military force to an imminent threat is also permitted under Article 51 of the U.N. Charter.

To date, the information that the administration has provided to the American people does not substantiate an imminent threat to the United States. In written testimony for last Thursday’s Senate Armed Services Committee hearing, Lieutenant General Joseph L. Votel, currently the Commander of the Joint Special Operations Command said that ISIS “represents the greatest threat to the governments of Iraq and Syria, and threatens to destabilize the entire Levant region by fomenting a sectarian war.” However, while Votel testified that foreign fighters “will ultimately present a threat to the homeland,” he did not declare ISIS to be an imminent threat to the United States.

An important question in this discussion is, what constitutes imminence? The Caroline test is considered by many to be the customary law standard for determining when an attack is “imminent” and thus legitimizing a response of anticipatory self-defense. In the Caroline case, in which Canadian loyalists to Britain crossed into the United States to destroy a ship bearing arms to insurgents, the standard for imminence was described as “instant, overwhelming, leaving no choice of means, and no moment of deliberation.

The Obama Administration has previously expressed a rather unsatisfactory interpretation of imminence, which is significantly broader than the Caroline test. According to a Department of Justice Office of Legal Counsel White Paper, released in February 2013, an “imminent threat” necessary to give rise to the use of force “does not require the United States to have clear evidence that specific attack on U.S. persons and interests will take place in the immediate future.” As Human Rights First noted after the White Paper’s release, this definition “is neither specific nor immediate [and] greatly expands the circumstances in which a President could [use force].”

Given that experts have repeatedly stated that ISIS “does not appear to be focused on the United States,” declaring the group to be an ‘imminent threat’ because it may one day have the potential to attack the United States would be an even further expansion of the concept of imminence. This is not to say that the United States should be passive to the long-term threat of ISIS, but if the threat is not imminent, any military response must be the result of deliberation with Congress and part of a conversation with the American people, rather than reliance on a gross expansion of executive authority.

Perhaps the administration is undecided about the level of threat ISIS poses, while it continues to gather more intelligence about the situation on the ground. If that is the case, it must refrain from using inflammatory rhetoric and live up to its pledges of transparency by providing the American people more information about the criteria it is using to determine whether the threat posed by ISIS is imminent and justifies the use of military force without congressional authorization.

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Published on July 15, 2014

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