AUMF: Legislative Reaffirmation

The Administration Wants an ISIL AUMF to Prop Up Troop Morale

By Jack Goldsmith
Thursday, December 3, 2015, 6:45 PM

Secretary of Defense Carter and Chairman of the Joint Chiefs of Staff Dunford testified Tuesday before the House Armed Services Committee.  The news was that JSOC will play a bigger role against ISIL in Iraq (and probably Syria).  But both men also revealed why the Obama administration is not serious about an ISIL AUMF, and also why Congress is unlikely to enact one any time soon.

As the announcement about the increased JSOC presence makes plain, Carter and Dunford (like the Obama administration generally) believe the U.S. military currently has all the legal authorities it needs – presumably under the 2001 and 2002 AUMFs – “to prosecute the campaign against ISIL,” as General Dunford put it.  As Secretary Carter made clear:  “[T]he lawyers tell me that we don't technically need [a new AUMF]. …. We can conduct what we need to do within the law.”   

Despite the administration’s belief that it can prosecute the war against ISIL without a new AUMF, Carter and Dunford also said – in seemingly coordinated statements – that they would nonetheless welcome an ISIL-specific AUMF from Congress along the lines proposed by the President earlier this year.   Why a new AUMF, if the USG has all the legal authorities it needs?  Answer: To show the troops we support them!  “I [think a new ISIL-specific AUMF] would be helpful, principally because I think you can't do enough to show the troops that we're behind them and that this is a big deal and it's serious and the country is behind them,” said Secretary Carter.  General Dunford similarly stated: “I absolutely believe that a clear and unequivocal statement of support for the men and women that are prosecuting the campaign and our allies from their elected officials would be absolutely helpful.”

So the administration’s argument is that an ISIL-specific AUMF would help troop moral.  In other words, the administration’s proposed ISIL AUMF is purely symbolic.  That in a nutshell is why the administration has not been pushing hard for the ISIL AUMF.  (For further analysis, see here and here.)  That in a nutshell is why Congress is unlikely to enact one. 

Indeed, if the administration really wants “clear and unequivocal” evidence that Congress and the nation are “behind” the troops and that the campaign against ISIL is a “big deal,” the last thing it should seek is a debate about an ISIL AUMF.  Such a debate will raise contested issues about “boots on the ground,” time limits, what many think is the President’s feckless strategy, etc.—issues that are likely to be divisive and likely to diminish the “support” message.  The administration knows this.  That and other other political risks it would face from a robust AUMF debate is why it has barely been lifting a finger to secure one.   

If the administration really wants the nation's support for the troops, it should ask Congress for a simple Resolution of support, not a new AUMF.  Such a Resolution would give the administration all it says it needs from Congress.  And it would allow Congress to “support the troops” without taking any concrete affirmative responsibility for the steady expansion, along many dimensions, of the 2001/2002 AUMF war.  In short, a Resolution of support for the troops would be a great deal for everyone in our broken war powers system.  (Compare Great Britain!)

Some may argue against such a Resolution on the ground that it would implicitly bless the administration’s legal interpretation of the 2001 and 2002 AUMFs to extend to ISIL.  Perhaps so -- it would depend on the wording.  But I am afraid that Congress has (probably) already blessed that interpretation in its “Overseas Contingency Operations” funding, which the administration has been crystal clear is needed for to operations to “degrade and ultimately defeat the Islamic State of Iraq and the Levant (ISIL).”  (For support for the claim that appropriations for an ongoing war can constitute authorization for that war, see this OLC opinion, which cites many judicial and historical authorities.)