U.S. Army Spc. Paul M. Cattorn provides security for Afghan national security forces on day two of a six-day dismounted operation in Baraki Barak District, Afghanistan
On February 11, President Obama submitted a proposal to Congress for the Authorization for Use of Military Force (AUMF) against the Islamic State of Iraq and the Levant, or ISIL. Foreign policy and legal experts have since parsed the draft to death, decrying it as either too expansive or not expansive enough. Should it place geographic limits on military operations? Should it have a termination date? Should it target groups other than ISIL? The list of concerns goes on — but does any of it really matter?
The whole AUMF saga, which began when the president first suggested the need to develop a new legal framework for combating non-state terrorist actors in May 2013, has been an exercise in political theater. At every stop along the way, President Obama has made sure to reiterate that he does not need any authorization, but would welcome the opportunity to work with Congress to retroactively (and, according to him, superfluously) “authorize” actions he has taken already.
This raises the question of whether President Obama, or his successors, would actually obey the constraints set forth in a new AUMF. If not, how should the U.S. government go about defining the scope of counterterrorism operations in the Middle East from here on out?
A good place to start is to recognize that drafting a new AUMF is by no means a lost cause. Now that congressional declarations of war have fallen out of fashion, it is in fact the only option. But the president’s baffling insistence that he requires no further authorization has failed to generate a meaningful discourse on what exactly a new AUMF should look like. According to his administration, his emergency war powers under Article II of the Constitution along with the 2001 AUMF—which, in general terms, authorized the president to target al-Qaeda and other “affiliates” responsible for 9/11—provide him with enough legal footing to engage ISIL militarily. The problem is that several prominent legal scholars, and even the president himself, have argued otherwise.
This legal charade began in earnest during a speech by President Obama at the National Defense University in May 2013, where he said in plain terms:
“The AUMF is now nearly 12 years old…Unless we discipline our thinking, our definitions, our actions, we may be drawn into more wars we don’t need to fight, or continue to grant presidents unbound powers more suited for traditional armed conflicts between nation states. So I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate.”
Unfortunately, the president has backtracked on his commitment to repeal the 2001 AUMF and replace it with a statute that accounts for present-day realities in the fight against terror. In trying to explain his administration’s reliance on a document that he himself has called obsolete, the president belies his rule-of-law rhetoric. In a recent letter to Congress, for instance, he writes: “Although existing statutes provide me with the authority I need to take these actions, I have repeatedly expressed my commitment to working with the Congress to pass a bipartisan authorization for the use of military force against ISIL.” In other words, President Obama is not seeking an updated authorization in the legal sense of the word, for the White House draft notably omits a sunset provision that would abrogate the prior construction of the 2001 AUMF as it pertains to ISIL. Instead, the president is simply asking Congress to acknowledge the war-making authority that he has claimed all along, which would allow his administration to preserve the 2001 AUMF as a separate basis of authority.
In trying to explain his administration’s reliance on a document that he himself has called obsolete, the president belies his rule-of-law rhetoric.
The president’s confusing posture reflects the tension between “Obama the lawyer” and “Obama the commander-in-chief.” On the one hand, the president recognizes the very thin legal rationale for using a fourteen year-old authorization to fight an enemy that came into being less than a year ago. However, he also feels tremendous pressure from the American people to do something in response to the heinous and horribly graphic murders of innocents in the Middle East. The nation is looking to him for immediate answers on how to “degrade and defeat ISIL.” Yet the weight of public expectation does not make the task of confronting violent non-state actors any less formidable, particularly from a legal point of view. A state is a state, whereas an extremist group is in constant flux, splintering and mutating in unpredictable ways. Is it even possible, then, to write an AUMF that allows for these contingencies but is also not a carte blanche? If so, can the president afford to sit idly until such an authorization reaches his desk?
While striking the right balance between license and constraint is no small feat, President Obama remains largely to blame for the disappointing content and timing of his draft AUMF. By insisting for two years that he required no new authorization even as he continued to make overtures to Congress and drop bombs on the Middle East, President Obama transformed the concept of a new AUMF into a symbolic gesture—at best, a vote of confidence from Congress; at worst, a tepid nod toward presidential etiquette. He has clearly shown his willingness to act without proper license since the beginning of the present campaign against ISIL. In doing so, he has rendered all talk of “new limitations” on executive action largely meaningless.
Drafting a new AUMF is by no means a lost cause.
His words may well have dissuaded lawmakers from taking the AUMF seriously, but that doesn’t excuse Congress from any responsibility. While many in the Republican camp favor an expansive view of executive war powers, many others in Congress do not, but their opposition has failed to reach a critical mass. What both parties can agree on, however, is the primacy of law, which requires immediate repair in the area of using military force against non-state actors. The onus falls on both Congress and the president to define and constrain the use of force through statutory means, and to respect the boundaries set forth. Otherwise, the conditions are ripe for another Forever War.