AUMF: Legislative Reaffirmation

The Obama Administration Wants a Super-Broad AUMF for the Islamic State (and Other Reactions to Yesterday’s AUMF Hearing)

By Jack Goldsmith
Wednesday, December 10, 2014, 2:07 PM

Secretary of State Kerry testified yesterday before the Senate Foreign Relations committee on the need for a new AUMF for the Islamic State (which Kerry referred to by the new moniker “Daesh,” and I will for now call “IS”).  It was a revealing few hours.  The Senators were well-informed and asked good questions with an unusual bipartisan flavor.  Kerry was well-informed too and did his best to answer their questions.  The big news is that Kerry laid the administration’s cards on the table about what it wants in an AUMF for IS.  It wants quite a lot.

Some reactions:

Obama’s Past Pledges.  President Obama has long said he wants to work with Congress to update presidential authorities to comport with the modern Islamic terrorist threat.  Most recently, on November 5, the President stated: “I’m going to begin engaging Congress over a new Authorization to Use Military Force against ISIL.”  Yesterday’s hearing made plain that this pledge, like past similar pledges, was hollow.  Senators from both sides of the aisle complained about the lack of Executive branch engagement, the absence of a concrete presidential proposal, and Congress’s general inability to get information from the Executive branch related to a new AUMF.

Kerry’s Outline of Administration Preferences.  While Kerry resisted the notion that the administration should send Congress a concrete AUMF proposal, he did state the four main elements of what the administration prefers in an IS AUMF: (i) authority to use force against IS andassociated forces; (ii) no geographical limitation; (iii) no ground troop limitation; and (4) a three-year time-limit on the authorization, with an exception for an “extension in the event that circumstances require it.”  Kerry was very vague on point (iv) but it sounds like he wants to maintain the Executive branch’s ability to extend the conflict beyond three years based on the President’s (as opposed to Congress’s) determination about the continuing threat posed by IS.  That does not sound like much of a time limit, and certainly not one that requires new congressional authorization after three years.

The Extraordinary Breadth of the Administration’s Desired AUMF.  What the administration appears to be seeking is an open-ended IS AUMF akin to the one that Congress gave the President for al Qaeda and affiliates in the 2001 AUMF.  In addition to the features noted above, the administration would like an “associated forces” extender but (apparently) not a reporting requirementabout covered groups or places.  This would replicate the problem under the 2001 AUMF of Congress (and the American people) not necessarily knowing who we are fighting against, or where.  It is also worth noting that Kerry envisions the proposed IS AUMF to extend very broadly geographically.  When Senator Udall asked how Kerry’s outlined AUMF would “treat groups who have pledged their allegiance to the Islamic State, including, as of December 2014, groups in Algeria, Libya, Egypt, Yemen, and Saudi Arabia?,” Kerry responded: “They should be associated forces. They fit under that category.”  All of these factors, taken together, amount to a desire for an extraordinarily broad IS AUMF.  Pretty amazing coming from an administration whose Chief Executive said in his NDU speech 18 months ago (i) “Unless we discipline our thinking, our definitions, our actions, we may . . . continue to grant Presidents unbound powers more suited for traditional armed conflicts between nation states,” (ii) that he “look[ed] forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the [2001] AUMF’s mandate,” and (iii) that he “will not sign laws designed to expand this mandate further.”  I view of Kerry’s testimony as the final repudiation of this element of the NDU speech, and as an acknowledgment that the “Forever War” is not close to over. 

End-of-Forever-War Watch.  Speaking of which, Kerry made clear that “[i]t will be years, not months, before [IS] is defeated.”  When Senator Johnson asked, “Does the president really believe that – that ISIS, or – or the new name, Daesh, will be defeated in three years?,” Kerry responded,  “No, the president has said this is going to take a long time.”  That must mean more than three years.

Ground Forces.  In arguing against a ground forces limitation, Kerry said that the President doesn’t plan to use ground combat troops in Iraq or Syria, but that Congress should not “preemptively bind the hands of the commander in chief or our commanders in the field in responding to scenarios and contingencies that are impossible to foresee.”  Senator Kaine responded that a congressional refusal to extend its authorization to ground troops does not preclude the President from ever using ground troops.  “The president,” he said, “always has the power under Article II to use any forces including ground forces to repel an imminent threat to the United States, by ISIL or by any other group or nation.”  Senator Kaine is right about this (though this President and his predecessors have interpreted Article II to do much more than authorize force in imminent self-defense.)  This point is important because it means that a ground force limitation would not, as Senator Durbin hopes, stop “this president or some future president” from “drag[ging] us into another deep, long lasting, blood, almost pointless conflict.”  The President can still do that under Article II if faced with a sufficient threat (and if he secures continued congressional financing).  But as Senator Kaine implied, a ground forces limitation raises the stakes politically for a President that wants to use combat ground troops under Article II, and to that degree makes such action less likely.  This is how a ground force limitation would have bite.

Astonishing Absence of Presidential Leadership.  As I have explained before, in the modern era, AUMFs have emerged from concrete presidential proposals and related presidential explanations about why the particular AUMF is needed.  I gave two reasons for this practice: “Congress is naturally responsibility-dodging,” and “its de-centralized structure makes it very hard for it to get its act together, on its own initiative, to authorize force.”  Other reasons are that the Commander in Chief has a near-monopoly on intelligence and is best organized to craft strategy and tactics, at least as an initial matter.  The main exceptions to the rule of presidential leadership on AUMFs – Lebanon (1983) and Somalia (1991) – are “not happy precedents for the presidency, for they are instances in which presidential unilateralism went badly, and Congress in response took the initiative to insist on the applicability of the War Powers Resolution and to authorize force with President-constraining conditions.”  And yet yesterday, Kerry invoked these two unfortunate precedents in arguing for congressional leadership, and presidential backseat-ism, in crafting an IS AUMF.  Across the spectrum the Senators rejected this view and complained about the lack of presidential leadership and Executive branch engagement on the IS AUMF.  They practically begged the administration to tell the Congress straightforwardly what authorities it wants and why it needs them.  The references here are too numerous to cite; they are all over the transcript.  Kerry gave no good reason why the administration is proceeding this way, especially in light of the President’s past pledges to engage Congress.  The President’s leadership from behind on this issue continues to astonish me.

Law, Strategy, and Intelligence.  A related point made by Senators in both parties was that it is impossible to craft a responsible AUMF for IS until the administration explains its strategy for defeating IS and the intelligence that underlies it.  To take two of maybe a dozen examples, Senator Coons said:  “I think one of the reasons there remains real hesitation -- real resistance to just an open-ended commitment to conduct of any kind -- is that we haven't had a full debate or discussion about the strategy.”  And Senator Corker said:  “What I would like to understand is how we're going to go about ensuring that we have an outcome here that is worthy of the effort. . . .  And I would just say that for all of us to conduct a situation where we pass an AUMF, I think it would be good to understand how the administration's going to go about it.”

It also emerged yesterday that the administration has not adequately briefed Congress on its current tactics and strategy, or even on the intelligence related to its tactics and strategy.  Senator Shaheen stated:

And we were hoping to work with some members of the administration in a classified setting to hear more about what is currently underway with respect to the war against ISIL.  . . . [S]hould we assume that there are members from the Department of Defense and from the intelligence communities who could also be part of working with us on that kind of a back and forth? And is that something that we could get set? Because my understanding is that one of the challenges has been a commitment from folks to actually come and answer some of the questions and the concerns that this committee has had.

Senator Corker similarly said: “Some of the things that will be discussed, obviously, as are things like boots on the ground and yet we have no defense presentations here, we have no intelligence presentations here.”  Or as Senator Rubio said, even more tersely: “If [the President] wants the authority to win the fight, he's got to tell us what the fight looks like.”

What About the 2001 AUMF?  Kerry said a few interesting things about the 2001 AUMF.  He argued that the 2001 AUMF extends to IS because (i) IS is the same group as al Qaeda in Iraq (AQI), which the United States fought in the 2000s, (ii) AQI was part of or an “associated force” of al Qaeda, and (iii) a mere name change from AQI to IS cannot destroy the 2001 AUMF authorization.  The problem with this argument is that Kerry fails to note the organizational and other differences between AQI and IS, most notably the crucial fact that IS (unlike AQI) is not part of or associated with Al Qaeda.  He kind of made this last point, and thus contradicted himself, when he said: “We acknowledge that there is a gap in time and a sufficient differential in what we're fighting that the American people are owed a more precise articulation that meets the current moment.”  Kerry also said that “we will support the inclusion of language in the new AUMF that will clarify that the Daish-specific AUMF rather than the 2001 AUMF is the basis for the use of military force.  And I think that will give comfort to a lot of people.”  But it shouldn’t give comfort unless Congress somehow (i) makes clear that the 2001 AUMF does not authorize force against IS, and (ii) repudiates the flexible “associated forces” rationale (or whatever it is) for IS being covered by the 2001, to make sure it is not applied to the IS AUMF to extend it to some distantly related group in the future.

War Powers Resolution Piffle.  Kerry stated:

President Obama, who served on this committee for, you know, four years, and Senator Biden -- then Senator Biden, now vice president -- served in this committee for about -- what is it? You know, 30 years, or near. Both are huge supporters of the War Powers Act, as I am. He's lived by it, even in situations where he didn't feel like he had to necessarily strictly set it up, he set it up. He always, you know, moved on the side of caution, and -- and of -- of compliance.

This simply isn’t accurate.  It is more accurate to say that the Obama administration rendered the WPR’s 60-day limit “meaningless in many important contexts when it concluded that it did not apply to the Libya action.”

Recommended Reading.  In connection with a discussion of limited AUMFs of the past, Senator Kaine stated:  “I would recommend to all of my colleagues an article, Congressional Authorization and the War on Terrorism, authored by Jack Goldsmith and Curtis Bradley, May of 2005, in the Harvard Law Review.”  Thanks, Senator Kaine!