AUMF: Legislative Reaffirmation

On the President’s Request for a Vote on an AUMF for ISIL

By Jack Goldsmith
Monday, December 7, 2015, 7:03 AM

There were at least two points of note in President Obama’s call last night for Congress to “vote to authorize the continued use of military force against these terrorists.” First, the President did not mention his draft AUMF for ISIL, much less ask Congress to approve that draft. Second, the President said that Congress should vote for an ISIL AUMF in order “to demonstrate that the American people are united, and committed, to this fight.” In other words, the President thinks Congress should enact an ISIL AUMF to symbolize the nation’s seriousness about the conflict with ISIL.

A vote on an ISIL AUMF would be purely symbolic for reasons stated by the Secretary of Defense last week: “[T]he lawyers tell me that we don't technically need [a new AUMF for ISIL]. …. We can conduct what we need to do within the law.” Administration lawyers have likely reached this conclusion for two types reasons. The first is the original administration interpretation of the 2001 and 2002 AUMFs to justify the use of force in Iraq and Syria. Whatever one thinks of this interpretation (I have been critical of reliance on the 2001 AUMF), it is now bolstered by a second reason. The administration probably thinks that Congress authorized the use of force against ISIL when it approved the President’s request for “Overseas Contingency Operations” funding, which (I am informed) a continuing resolution extends to the current fiscal year. The administration made clear at the time that the OCO funding was needed specifically for operations to “to degrade and ultimately defeat ISIL through a comprehensive and sustained counterterrorism strategy.” Under this OLC opinion, which places reasonable reliance on many judicial and other precedents, congressional appropriations enacted for ongoing uses of force can constitute authorization for those uses of force.

Because the President wants Congress to make a purely symbolic vote in support of his use of force against ISIL, members of Congress will be freer than usual in this context to let politics and politicking inform their votes. And that in turn means that we can expect the same old split to emerge between those who want to limit the war against ISIL geographically, and by troop levels, and on timing; and those who want to avoid any such limits, and to push the President to be more aggressive against ISIL. This split will be especially hard to avoid if, as expected, the administration does not push hard in Congress, with public pressure and on-the-ground arm-twisting, for a particular AUMF.

For these reasons, I am skeptical that any ISIL AUMF will emerge from Congress. I also think that the only type of ISIL AUMF that has any chance is one that simply preserves and blesses the President’s status quo authorities, including the same relatively broad authority to use force that two presidents have asserted against al Qaeda under the 2001 AUMF. Such status quo preservation will not attract those who want to limit the war against ISIL. But it should attract moderates who like the status quo, as well as the hawkish members of Congress who want the President to be more aggressive. Note to the hawks: President Obama made clear again last night that he is not going to deploy large-footprint ground troops to fight ISIL, and there is nothing that Congress can do to make him do so. Thus the best thing to do, from the hawks’ perspective, is to simply affirm (beyond what the OCO appropriation already established) that the president has full authority, without statutory limitation related to geography, ground troops, or timing, to use military force against ISIL. Such authorization would include authorization to use ground forces when this or a future president deems them necessary.

Last year, Bobby, Matt, Ben and I outlined a substantively neutral but procedurally constraining AUMF. Our draft is substantively neutral because it codifies all of the authorities the President currently says he possesses and needs, and adds no new authorities. It is procedurally constraining because it imposes a three-year time limit on the authorities and robust disclosure requirements about which enemies the United States is fighting, and where. I suspect that the procedurally constraining elements of this proposal, which I continue to believe are prudent, will be controversial and hard to enact in the current environment. (Therein lies a lesson.)

If so, then perhaps the simplest solution would be for Congress to vote on this sentence:

The 2001 and 2002 AUMFs are repealed, and the President is authorized to use all necessary and appropriate force against al Qaeda, the Taliban, the Islamic State, and associated forces.

These thirty words would refresh every statutory authority to use force that the President currently claims, and not give him any more or any less authority than he currently claims. And it would repeal the old AUMFs in the process.

Nothing this simple will ever emerge from Congress, which will want to send many other messages, both at home and abroad. But if enacted into law, this single sentence would “demonstrate that the American people are united, and committed, to this fight,” would wipe away the old AUMFs, and would affirm the President’s current authorities, all without having to resolve whether and how those authorities should be broadened or narrowed.