Ackerman and Hathaway on the Iraq AUMF: How Strictly Should AUMFs Be Construed?

By Robert Chesney
Monday, November 1, 2010, 8:18 PM

In Limited War and the Constitution: Iraq and the Crisis of Presidential Legality (forthcoming Michigan Law Review), Bruce Ackerman and Oona Hathaway argue that the October 2002 AUMF for Iraq was subject to certain purpose-oriented conditions, that these conditions ceased to be satisfied at least at the end of 2008, and that President Bush and President Obama acted unlawfully by perpetuating a military role for the US in Iraq from 2009 onward.  I’m not persuaded, however, and want to push back against what I see as an unreasonably strict reading of that AUMF—and by extension, against unduly strict readings of AUMFs more generally.

Section 2 of the October 2002 AUMF states, in relevant part:

(a) AUTHORIZATION.—The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to—

(1) defend the national security of the United States against the continuing threat posed by Iraq; and

 (2) enforce all relevant United Nations Security Council resolutions regarding Iraq.

Against that backdrop, Ackerman and Hathaway argue that

(i) the first of these justifications should be read as focused on the alleged WMD threat, and thus this justification was either void from the outset or at least became void once the WMD fiasco became clear; and

(ii) the second of these purposes was exhausted at the end of 2008 when the last of several post-invasion UNSC resolutions expired.

Let’s set aside arguments to the effect that the domestic law authority to use force in Iraq does not depend entirely on the AUMF, but might instead stem at least in part from Article II.  And let’s also set aside arguments to the effect that these are political questions that do not admit of judicially-administrable standards (to be clear, Ackerman and Hathaway are not arguing for judicial enforcement of some kind, but rather are trying to make the case for illegality in support of an argument that Congress in the future should adopt a default rule for AUMFs involving a two-year sunset enforced by automatic funding cut-offs).

The question is whether Ackerman and Hathaway’s reading of the Iraq AUMF is a persuasive one.  I do not think it is, for three reasons.

First, I do not think it justified to treat the “continuing threat posed by Iraq” language as void from the beginning, even if we accept that this clause should indeed be read to refer more narrowly to a “continuing WMD threat posed by Iraq.”  The void-all-along position appears to rest on the premise that the Bush Administration itself did not actually believe Saddam had WMDs.  One can accept that the WMD evidence was hyped, oversold, etc., but it does not follow that the relevant executive branch actors (it is not clear, incidentally, just which actors matter for purposes of such an inquiry) actually themselves disbelieved it.   I don’t think that case has been made, whatever turned out to be the case once the invasion occurred.

Second, I’m not persuaded that the best way to read the “continuing threat” clause is to assume Congress meant only to encompass the threat posed by Iraq in relation to WMDs.  The many “whereas” clauses obviously emphasize WMDs, as did the administration and its supporters in making their case for war, but other concerns are mentioned in those clauses as well, and in the end the clause simply does not contain such a restriction.  One can of course read a WMD-nexus into the clause, as Ackerman and Hathaway do, but this approach seems inconsistent with a tradition of interpreting AUMFs generously rather than strictly in light of the executive branch’s claims of Article II authority in the military and foreign affairs realms, as described by Jack and Curt Bradley here.

Third, the proposed strict construction of the “continuing threat” clause produces consequences that Congress cannot have intended. Imagine that the UN Security Council never produced any post-invasion resolutions, and that no other arguments for application of the UNSCR-enforcement clause remained by the end of 2003. According to Ackerman and Hathaway, a continued U.S. military presence in Iraq would thus have become unlawful as soon as it became clear that there were no WMDs, creating some obligation (however unenforceable) to withdraw in due time despite the shambles left by the invasion and the emergence of a vicious insurgency.  Congress, it seems to me, would not have intended such a state of affairs.  It is more plausible, I think, to assume that when Congress confers authority to topple a foreign government that authority entails a mop-up power to deal with the violent aftermath of regime change, including authority to fight off insurgency and to remain in place to stabilize the successor government—whatever might become of the original rationale for toppling the original government.

Now, does that mean the original AUMF justifies a permanent military presence in Iraq, so long as there remains a prospect for some amount of political violence?  Of course not.  But the difficulty of determining when such implied stabilization authority runs out does not make it plausible to construe the AUMF to contain no such authority in the first place.

This debate is not entirely academic, incidentally.  “Combat operations” may be over in Iraq, but “combat” is not.