AUMF: Syria

More on the War Powers Resolution and the Use of Force Against the Islamic State

By Jack Goldsmith
Wednesday, October 8, 2014, 12:56 PM

This morning I argued that the Obama administration had violated the War Powers Resolution unless its is correct in its contention that the 2001 and 2002 AUMFs together authorize the use of force against the Islamic State in Iraq and Syria.  Three follow-ups:

First, I speculated this morning that “the administration was pushed by the looming WPR deadline to switch from an Article II basis for the conflict against the Islamic State to a combined AUMF-Article II basis.”  This speculation finds some confirmation in this “on background” statement by a “senior administration official” at about the time of the switch to the AUMF theory:

“We believe that he can rely on the 2001 AUMF as statutory authority for the military airstrike operations he is directing against ISIL, for instance.  And we believe that he has the authority to continue these operations beyond 60 days, consistent with the War Powers Resolution, because the operations are authorized by a statute.”

Second, I said that “very few in Congress . . . seem to care how its vital framework war statutes are being construed.”  A staffer on the Hill pointed to this statement from the Senate Republican Policy Committee to show me I was wrong:

This abuse of the 2001 AUMF has significant consequences. Under section five of the War Powers Act, if the president introduces the U.S. military into hostilities, he may generally keep them there beyond 60 days only if Congress somehow acts to authorize such a use of military force. It is clear President Obama is claiming the authority to act against ISIS under the 2001 AUMF so he can avoid the requirement to seek congressional authorization under the War Powers Act. As one administration official admitted, the 2001 AUMF serves as the congressional authorization for these operations against ISIS, and thus the president “has the authority to continue these operations beyond 60 days.”

OK, fair point, but this has not exactly been an issue item for Republican party (or Democratic party) leadership.

Third, Ryan Goodman appears troubled by my last paragraph because, he says, I am “a firm believer that _2002_ AUMF may justify ISIL strikes.”  What I said about the 2002 AUMF is that it is “not at all hard” to apply it to strikes against the Islamic State in Iraq, and that it “arguably authorizes” force in Syria if certain conditions are met.  I have not seen anyone else who agrees with me on this interpretation (Ryan doesn’t), especially with regard to Syria, and I am not even sure that the administration is relying on the 2002 AUMF in Syria.  The relative weakness of the 2002 AUMF argument as applied to Syria is why I said, in my original post, that “compliance with the WPR, especially for airstrikes in Syria, depends on the administration’s tenuous interpretation of the 2001 AUMF.”  But if in fact the 2002 AUMF does authorize the use of force in the Islamic State in Iraq and Syria – any takers? – then there is no WPR problem.