AUMF: Scope and Reach

Not Asking the Girl to Dance

By Benjamin Wittes
Wednesday, September 10, 2014, 9:41 PM

Here's President Obama coyly not asking Congress to dance---that is, as I put it in my post earlier today, "signal[ing] that [he] would like to dance with Congress—saying [he] will consult with her, that [he] invites her support—but [stopping] short of anything like a formal request, and he insist[ing] that he’s happy to dance alone." In his speech tonight, Obama said:

My Administration has also secured bipartisan support for this approach here at home. I have the authority to address the threat from ISIL. But I believe we are strongest as a nation when the President and Congress work together. So I welcome congressional support for this effort in order to show the world that Americans are united in confronting this danger.

My earlier post, however, got one thing wrong, and it's an important thing. Apparently, the administration's legal theory for why it has authority to dance alone here is not inherent Article II authority. It is the 2001 AUMF.

I have to say, I find this reading extremely implausible. I have always supported the administration in taking a broad view of what it means to be an "associated force" under the AUMF. But "associated" does not mean "not associated" or "repudiated by" or "broken with" or even "used to be associated with."

This is not a stable or sustainable reading of the law, absent some dramatic, non-public intelligence about the ISIS-Al Qaeda relationship. Remember that this is a law that barely a year ago, President Obama was lecturing us needed to be narrowed and repealed. "This war like all wars must end," he piously intoned. Apparently not, however, before we dramatically expand its interpretive scope and deploy it to support a new and open-ended military campaign that, in the president's own words, "will take time." All to avoid asking the girl, who might say no, to dance.