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Response to Peter Spiro on the Senate’s Syrian AUMF, and a Request for Clarity

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Wednesday, September 4, 2013 at 11:17 AM

I disagree with Peter Spiro’s take on Section 4 of the draft AUMF.

Section 4 terminates the congressional authorization after 60 (or 90) days, but it does not affirmatively prohibit the President from using force at that point, and thus it allows the President to fall back on his claims of inherent presidential power (which, I argued, are enhanced by the draft AUMF).  I thus do not see how the 90-day limit of Section 4 “will almost certainly stick” because it applies “the WPR timeline to Syria.”  The WPR has something important that this AUMF doesn’t – a requirement in Section 5(c) that the President “terminate any use of United States Armed Forces” after 60 (or 90) days.  Only if there is such an affirmative prohibition on presidential power in the draft AUMF would the President be in a Jackson category 3 situation.  But there is no such affirmative prohibition on presidential use of force in the draft AUMF – only a removal of authorization after 90 days.  Thus I believe I am right that the draft AUMF does not prohibit the President from using force pursuant to his inherent powers after 90 days.  After 90 days the President would be in Jackson category 2, not Jackson category 3.

But on an issue that Peter did not raise (but that his post caused me to see), matters are yet more complex.  (Very complex – sorry).  Does Section 5(b) of the WPR itself, as opposed to Section 4 of the draft AUMF, apply to bar the President from engaging in “hostilities” after 90 days of military activity in Syria?  Even if it did, it would not prevent the President from using significant Libya-like military “force from a distance” (at a minimum, drones, cruise missiles, cyber) in Syria, in light of the narrowing interpretation the administration gave the WPR in the Libya matter.  But does the WPR apply, even in theory?  Section 2(c) of the draft AUMF says that the AUMF constitutes specific statutory authorization for presidential use of force within the meaning of section 8(a)(1) of the WPR, and that, taken alone, would mean that Section 2(c) suspends the automatic termination requirement of Section 5(b) of the WPR.  However, Section 4 of the draft AUMF adds that the authorization (and thus, perhaps, the suspension of the WPR termination provision) applies “within the limits of the authorization established under this Section.”  Does that mean that the self-executing prohibition on military hostilities in Section 5(b) kicks in 90 days after the initial bombing in Syria?  Or 90 days after the running of the 90-day window authorized by the Senate’s AUMF?  (I.e. after 180 days?)  Whichever it is, it would not mean that the WPR prevents war from a distance in Syria, for reasons stated above.  But qualifying what I said this morning, and setting aside even more complex counterarguments not now worth mentioning, it might block the President from introducing (or keeping) combat ground troops in Syria, pursuant to his inherent power, after 90 (or 180!) days.

I have no idea if the Senate AUMF drafters intended this complexity.  I doubt they did.  But whatever they intend, and whoever is right between me and Peter, I urge the drafters to be clearer on this point if their aim is to affirmatively bar presidential military action in Syria.  If the Congress wants to terminate presidential power to use military force in Syria after 90 (or 180) days (as opposed to remove authorization for the use of such power, thereby allowing the President to fall back on his inherent powers), it can probably do so constitutionally in this context, but it must be crystal clear.