War Powers

Reading the AUMF Tea Leaves, 2002 Edition

By Wells Bennett
Monday, July 28, 2014, 12:42 PM

Nowadays figuring out what sort of post-2001 AUMF authority the White House wants is a bit of a tea leaf-reading exercise. Potentially relevant to it are the events of last Friday concerning the 2002 AUMF, which Congress passed in advance of the Iraq war.

Friday evening saw the House's approval of H. Con. Res. 105, a concurrent resolution filed pursuant to Section 5(c) of the War Powers Resolution. Apparently, the proposal arose from congressional concern over the executive branch's possible invocation---or stretching, depending on your point of view---of the 2002 Iraq AUMF, as a source of authority to take further action against ISIS or other current, Iraq-related threats. The legislation---which, so far as I know, hasn't been taken up in the Senate---thus instructed the executive branch:


The President shall not deploy or maintain United States Armed Forces in a sustained combat role in Iraq without specific statutory authorization for such use enacted after the date of the adoption of this concurrent resolution.


Nothing in this concurrent resolution supersedes the requirements of the War Powers Resolution (50 U.S.C. 1541 et seq.).

Prior to a vote on this, President Obama's national security advisor, Susan Rice, had written to House Speaker John Boehner and said, in so many words, that the resolution was "consistent with the Administration's views;" but also that Congress would be better off dispensing with a disapproval of future military force, and instead simply repealing the 2002 Iraq AUMF altogether:

While we understand that the House of Representatives will consider this resolution that support the President's position, we believe a more appropriate and timely action for Congress to take is the repeal of the outdated 2002 Authorization for Use of Military Force in Iraq (P.L. 107-243).  With American combat troops having completed their withdrawal from Iraq on December 18, 2011, the Iraq AUMF is no longer used for any U.S. government activities and the Administration fully supports its repeal. Such a repeal would go much further in giving the American people confidence that ground forces will not be sent into combat in Iraq.

So what does this tell us about statutory reform?

Not much, at least considering the letter's text. Naturally enough, given its subject, Rice's missive says nothing about the 2001 AUMF, or how much the Administration's interest in an update to that law has (or hasn't) shifted recently. And Rice also does not exactly repudiate the 2002 AUMF as a possible legal basis for using force if the need arises, either---though politically, I think the executive branch would have an awfully tough time invoking that statute down the road, having so many times called for its repeal publicly.

In that broad vein, the letter probably is at least a little bit helpful, for purposes of 2001 AUMF tea leaf-reading. The debate over the sufficiency of the President's constitutional powers to counter terrorism, whether standing alone or bolstered by some kind of updated 2001 AUMF, probably will come to resolution more quickly, and fruitfully, if another broad-brush statute in play, the 2002 AUMF, has been taken off the table as a practical matter.

Of course calling for a law's repeal isn't at all the same as abandoning it outright. Still, the more the White House seems to disown the 2002 Iraq AUMF, the less leeway it reserves to itself to make any use of it down the road. And that, in turn, should help to clarify the wisdom of various post-2001 AUMF legal policy options---a good thing, whether you favor or oppose a further authorization to use force, in countering threats outside the 2001 law's scope.