AUMF: Legislative Reaffirmation

Representative Schiff’s Good New Draft AUMF

By Jack Goldsmith
Thursday, December 10, 2015, 12:30 PM

I remain skeptical that Congress will ever pass an ISIL AUMF.  But if it is going to enact one, I recommend the one just proposed by Representative Schiff (which differs from the previous two he has proposed).   The Schiff draft authorizes force against al Qaeda, the Taliban, ISIL, and associated forces – i.e. the exact entities that the President currently claims to be using force against under the 2001 and 2002 AUMFs (which the Schiff AUMF would abrogate).  However, the Schiff AUMF would sunset in three years (to ensure that Congress revisits the issue), and would require the President to tell Congress (if not the public) the entities against which the United States is fighting.  It also contains an important innovation to deal with the conundrum of ground troops.  The draft implicitly authorizes the President to deploy combat ground troops against the covered entities without geographical restriction (just as the current AUMFs do).  But it requires the President to notify Congress if he introduces combat ground troops, and provides for expedited congressional consideration of any joint resolution that seeks to modify or repeal the authority to use ground forces.  I doubt this will be much of a check on a President who wants to use combat ground forces (because a congressional restriction would likely need to override a presidential veto).  But perhaps by authorizing the use of combat ground forces but providing a special mechanism for Congress to restrict the use of such troops, the Schiff AUMF can bridge the paralyzing division in Congress on the issue. 

I have quibbles with the draft.  I don’t know why it limits coverage to “Afghan” Taliban (which might be deemed a geographical restriction); it’s definition of “associated forces” might depart in uncertain ways from the usage in courts and by the Administration; and it has a few ambiguities that need cleaning up.  But on the whole I think the draft is great because it is substantively neutral (it gives the President the same authorities he currently claims to possess) but procedurally constraining (it forces the President to communicate more with Congress about the conflict and forces Congress to be more involved).

The Schiff draft is similar to a substantively neutral but procedurally constraining draft AUMF proposed by Ben, Bobby, Matt, and I last year.   I once explained the virtues of such an AUMF as follows:

First, there are numerous policy debates that one might have about what should be added to or subtracted from the President’s current array of counterterrorism authorities.  The White House might like to use this as an opportunity to close GTMO, the ACLU might want to ban targeted killing of American citizens or eliminate detention authority going forward, the Republicans in Congress might want to direct Syria policy or include an express proviso on ground troops in Iraq.  And so on and so on.  The nice thing about codifying the status quo of substantive authorizations is that it is a salient neutral point.  One danger with a new authorization – and especially a danger for those who are less hawkish than the soon-to-be-Republican-controlled-Congress – is that once one starts adding to or subtracting from the President’s current array of authorities, who knows what direction it might go in, or where it  might end up.  Although there is a great deal of uncertainty and debate about the legal basis for the President’s current actions against al Qaeda and associated forces and the Islamic State, there is also a political consensus that the President’s authorities should extend this far, and no obvious need to extend them any further.  So a neutral first right-sizing step, a right-sizing step that everyone can in theory claim is “fair” (or at least not a “loss”), is to maintain and refresh the status quo of the President’s substantive authorities to use force.

Second, the proposed AUMF should be attractive to Congress, including one controlled by Republicans in the new year.  It gets Congress back in the game, increasing its relevance on counterterrorism.  It also gives Congress hugely important information – information, embarrassingly, that even the Senate Armed Services Committee has not had – about which terrorist groups the United States is at war with, and where.  This is obviously a necessary first step for real oversight which Congress should cherish.  The draft AUMF also (potentially) increases Congress’s bargaining power on the issue of counterterrorism authorities by forcing the (next) President to return to Congress for new authorities in three years.  I realize that many members of Congress are going to be very tempted to tack on their preferred counterterrorism policy outcomes, to lard on extraneous matters, and perhaps even to provide broader authorities than the President now possesses or wants.  It is worth remembering, obviously, that the Commander in Chief warrants significant discretion in carrying out the war against Islamist terrorists.  But much more importantly and pragmatically, members of Congress inclined to depart from the substantive status quo in ways that the President thinks go too far should remember that the President can always decline to sign any new joint resolution, and rely on his current interpretations of the 2001 and 2002 AUMF, and Article II, to conduct counterterrorism operations for the rest of his term.  For this reason, and (if this does not sound too naïve) because bipartisanship in war policy is vital and the status quo is a salient and “fair” place to rest the President’s authorities, I think Congress should be happy (or at least not unhappy) with [a substantively neutral] AUMF, especially since it receives significant procedural gains in the exchange.

Third, the proposed AUMF should be attractive to the President.  The President gets a new AUMF that will take the question of the legality of his current counterterrorism actions off the table, and will also draw Congress in for some of the accountability for current counterterrorism operations.  The President also gets to say that he presided over the repeal of the 2001 and 2002 AUMFs, which have been important policy goals, and that he set the authorities under the 2001 AUMF to expire in three years, also serving one of his policy goals (though of course Congress and the next President might want to renew).  The President can even claim that he remained true to his promise not to expand the war begun in 2001, since the draft gives him no authorities he does not currently claim, and hems the presidency in procedurally.  Yes, the reporting requirements will be painful, especially since DOD (and perhaps, the entire Executive branch) has shown little interest in explaining to the public which groups the United States is at war with, and where.  But it is the right thing to do, and the pain will be evidence of genuine constraint on the Executive branch ....

Again, I have no illusions about the Schiff draft pulling Congress together on this issue.  But its basic approach is eminently sensible and likely the only one that can even theoretically bridge the differences among the parties and chambers in Congress, and the President.