The Washington Post reports tonight that the White House is actively considering whether to go to Congress to seek an explicit authorization to use force against ISIL. [UPDATE: see also the corresponding NY Times story, which focuses on the underlying policy debate rather than the law; it helps make clear that the legal debate reported in the Post comes about precisely because the administration in contemplating operations focused on degrading ISIL, not just defending US personnel in Iraq or preventing specific humanitarian disasters.] There are many interesting legal angles to the Post's story on the legal elements, and I'd like to flag and comment on a few.
1. Geographic Scope
Not surprisingly, the article suggests that the contemplated AUMF would encompass both Iraq and Syria:
A mandate from Congress could provide domestic legal justification for the unlimited use of force against the Sunni Muslim group across Iraq and Syria, a senior administration official said.
It will be very interesting to see if any new AUMF is limited to Iraq and Syria, or if instead it might follow the 2001 AUMF model by omitting explicit geographic constraints. I'm betting the former, yet it's not obvious that Syria and Iraq are the only places ISIL personnel might be (under conditions where a lethal strike might be desirable as a matter of policy). Might you eventually have some in Yemen, for example, given reports of AQAP signalling support to ISIL and given that AQAP has personnel with scarce and particularly-troubling bomb-construction skills? Of course, I would expect the administration to simply rely on its Article II authorities in that case, though once you've got an AUMF for ISIL explicitly limited to certain locations, Article II arguments to attack ISIL elsewhere get trickier...
2. Alternatives to an AUMF
The article suggests that there are two options on the table in addition to the AUMF:
The “range of options” for direct use of the U.S. military includes temporary authority under the War Powers Resolution, constitutional authority for emergency action to protect U.S. citizens, and “having that discussion with Congress” about a more open-ended authorization to combat the Islamic State, the official said.
Obama has ordered airstrikes in Iraq under the first option, good for 60 days until early October. The second option was used this summer to launch a failed rescue attempt of American hostages held by the Islamic State in Syria. The third would entail a debate with an uncertain outcome among lawmakers with widely divergent views on presidential powers and overseas military action.
I think the administration's legal analysis may be somewhat lost in translation here, for the passages above appear to suggest that the administration thinks that the War Powers Resolution can be read as conferring affirmative authority to use force until the 60-day clock expires. The WPR itself explicitly disclaims such a reading of its clock provision, and it just doesn't seem likely that the Obama administration would make such a claim here. It seems clear, in fact, that the administration's position up to this point is that the airstrikes it has conducted have been based on a claim of inherent Article II power to use air power either to protect US forces and personnel on the ground in Iraq (first in Irbil (threatened by the approach of ISIL's personnel) and then in Baghdad (threatened, ostensibly, by the consequences of a potential catastrophic breach of the Mosul Dam upstream)), or based on a novel claim to do the same to forestall acute humanitarian catastrophes (Mt. Sinjar, and again the Mosul Dam). The War Powers Resolution enters into the conversation insofar as US forces thus have been introduced into "hostilities" and the 60-day clock for getting statutory approval as a result began ticking. Put simply, Article II, not the WPR, is the ostensible affirmative legal basis here; the WPR is a potential long-term obstacle, not a short-term solution.
Of course, the 60-day clock is an obstacle that this administration blew past in Libya a few years ago, maintaining that the use of American combat air power in that setting just didn't count as hostilities (or "war" insofar as the Declare War clause is concerned). Either the administration does not want to relive the criticism it got there, or it accepts that such arguments will not fly here given the factual differences (including, for example, the overt ground presence of uniformed US military personnel in roles involving operational support to host-state forces, even if not immediate participation in combat themselves). At any rate, they seem to consider the clock to be ticking this time around. From the article:
For its part, the administration expects to continue airstrikes in Iraq for the foreseeable future, although it is “mindful” that it will soon have to address the 60-day war powers restriction, the senior official said.
Of course, that reference to airstrikes in Iraq "for the foreseable future" should be enough on its own to drive the administration to seek Congressional approval, or for Congress (gasp!) to take up the question on its own. Read Jack's powerful commentary, here.
3. Could they just invoke the 2001 AUMF?
I was surprised to read that this was getting serious discussion. Perhaps it's not really serious discussion. Yet, the article reveals that this argument is under consideration too:
Authority for any military action, should it be seen as feasible and desirable, could theoretically be found under the existing 2001 Authorization for the Use of Military Force, or AUMF, against al-Qaeda.
“Three years ago, they would have clearly fit,” the senior administration official said of the Islamic State. But al-Qaeda’s Pakistan-based core announced last year that it had split with the group, objecting to its brutality against Muslims and declaration of an Islamic caliphate across Syria and Iraq. Now, officials are not certain whether that is a case worth making.
That's probably not a case worth making. The passage is making the point that ISIL once was AQI, "al Qaeda in Iraq." Think Zarqawi. AQI had long been resistant to direction and control from AQ's ostensible senior leadership, and as the passage itself notes, in its ISIL incarnation it has had a formal and substantial rupture with that leadership. I won't belabor the point; ISIL at this time does not fairly fall within the scope of the 2001 AUMF, either as part-and-parcel of "al Qaeda" nor as an "associated force" thereof. If the administration contends otherwise without evidence that ISIL has reconciled with AQ and in some fashion come back into its fold, it will fuel criticism that the 2001 AUMF lacks sufficient organizational boundaries. For all of these reasons, I doubt we'll see any real effort to rely on the 2001 AUMF.