More on Administration’s Draft AUMF

By Jack Goldsmith
Thursday, February 12, 2015, 12:50 PM

Some follow-ups to my earlier post on the administration’s ISIL-specific AUMF:

Marty Lederman has a good analysis of the substance of the draft AUMF that is consonant with my analysis.  Marty charitably notes that the draft “raises some questions that I doubt the President intended to leave unsettled for future administrations.”  Those questions include the failure to supersede the 2001 AUMF as applied to ISIL, and the broad definition of associated forces, which he notes “deviates in at least three respects from the definition of “associated forces” that the government has been using under the AUMF, in ways that could unnecessarily raise problems or interpretive confusion.”

My colleague Noah Feldman agrees with my legal analysis – including the notion that the draft AUMF does not preclude the use of significant ground troops under the 2001 AUMF – but argues nonetheless that the draft, if passed, is politically significant:

By going to Congress and disclaiming all intention for the use of significant quantities of ground forces over an extended period of time, the Obama administration is saying publicly that it isn't going to treat the fight against Islamic State like the conflicts in Afghanistan or Iraq. As a realistic political matter, the passage and signature of this authorization would block Obama from changing course and sending major ground forces without going back to Congress.

I agree, but it is also obvious from everything the President has done since 2009 that there is no way he is going to use significant ground troops in Iraq regardless of what the new AUMF says.  I think the grounds troops proviso is a sop to the left side of his party that costs the President nothing since there is practically no scenario I can imagine in which he would want to deploy (in the language of Section 2(c)) “enduring offensive ground combat operations.”  Noah makes this point as well: “[T]he president has already made it blindingly clear that he won't be invading Syria or Iraq to take on Islamic State. It costs the administration nothing to reiterate this strategic-political judgment in the form of a congressional authorization -- so long as no legal power is given up.”

Ben has a response to my befuddlement about why the President would send up a draft AUMF to Congress that expands presidential power.  He notes that the administration deeply mistrusts Congress and speculates that it “may be anticipating amendment and staking out a hard line fully expecting Congress to walk the draft back.”  Perhaps so.  But the administration’s opening bid is a dangerous one, for if no AUMF emerges from Congress,the President is left having unilaterally expanded the Forever War last September and then proposing but failing to expand it further.  Hard to build an apparently still-desired legacy of restraint on that.

Finally, my favorite quote on the President’s draft, from a “defense official,” in the Daily Beast:

“We don’t need a new AUMF to do our jobs” because the ongoing AUMF has allowed the United States to conduct its war legally, said one defense official who asked for anonymity to speak more candidly. “The AUMF is frankly more of a political issue than a military one.”