AUMF: Legislative Reaffirmation

Obama Administration Claims that 2002 Iraq Resolution is a Legal Basis for Air Strikes Against the Islamic State [UPDATED]

By Jack Goldsmith
Saturday, September 13, 2014, 6:57 AM

I always thought the 2002 AUMF was an obvious basis for air strikes against the Islamic State, easily in Iraq and possibly (given the right circumstances) in Syria.  Today Charlie Savage reports that “the White House believes that Congress’s 2002 authorization of the Iraq war — and not just the 2001 authorization to fight Al Qaeda — provides a legal justification for President Obama’s air campaign against the Islamic State in Iraq and Syria." (My emphasis.)  [Please see * below before reading bolded passage.] The use of the 2002 AUMF as a basis for force in Syria might seem a particular stretch.  But as I argued at the link above:

Also note that, in contrast to some previous AUMFs, the 2002 AUMF has no geographical limitation.  It authorizes force not in Iraq, but rather “against the continuing threat posed by Iraq.”  To the extent that the “continuing threat posed by Iraq” is today constituted by ISIS forces operating in tandem (and under a single military structure) in Iraq and Syria, the statute arguably authorizes the use of force against ISISin Syria.  Put another way, the 2002 Iraq AUMF arguably authorizes force against ISIS  in Syria if the President determines that such force is necessary and appropriate to defend the national security of the United States against the continuing threat posed by Iraq.  It is not hard to imagine that the President could make that determination.

Despite the plausibility of the administration’s position on the 2002 AUMF, the position surprises me.  Just six weeks ago, at a time when the Islamic State threat in Iraq was crystal clear, National Security Advisor Susan Rice wrote a full-throated letter to the Speaker of the House asking the Congress to repeal the “outdated 2002 Authorization.”  I am also surprised because all summer, in seven WPR letters, the administration relied on Article II as the basis for the use of force in Iraq, and just two days ago we were told that the basis was the 2001 AUMF.

This obviously leads one to wonder how much the policymakers are coordinating with the legal team in advance.  Force has been used in Iraq against ISIL for over a month, and yet in the course of a week the administration has floated three different legal theories for the strikes.  In truth, it is possible that all three legal bases – Article II, the 2001 AUMF, and the 2002 AUMF – may support aspects of the operation (though I am most skeptical of the 2001 AUMF basis).  Why not just say that?  The administration needn’t choose, and when all three bases of support are combined, the legal case is strengthened.  (Such combined bases of support for uses of force are not unusual – Presidents often rely on both statutory authorization and Article II when engaging in military action).

UPDATE: Someone just pointed out that the administration’s statement to the New York Times says that it might rely on the 2002 AUMF, but only for Iraq, and also stated that the administration would still like to see the statute repealed.  I cannot fathom why the administration would contemplate relying on a statute as a legal basis for the use of force and at same time urge its repeal.

* I now think I misread Savage’s story when I interpreted it to mean that the administration might rely on the 2002 AUMF to use force against the Islamic State in Syria as well as Iraq.  Savage wrote: “the White House believes that Congress’s 2002 authorization of the Iraq war . . . provides a legal justification for President Obama’s air campaign against the Islamic State in Iraq and Syria" (my italics).  I interpreted the italicized phrase to mean that the administration would use the 2002 AUMF as a basis for attacking the terrorist organization named The Islamic State in the nations of Iraq and Syria.  But in light of the administration’s statement, I now understand that Savage in the italicized phrase was referring only to the name of the organization with the acronym ISIS, i.e. the Islamic State in Iraq and Syria.  The statement on its face is entirely ambiguous, and it suggests to me (fwiw) that the NYT should start calling the Islamic State by its self-proclaimed name.  But in any event, my apologies for the misinterpretation.  In light of my misinterpretation, the bolded phrase above is no longer pertinent, though the rest of the post is.