AUMF: Legislative Reaffirmation

Susan Rice Did Not Consult DOD When She Urged Repeal of 2002 AUMF That DOD (Correctly) Thought Was "Still Needed"

By Jack Goldsmith
Monday, October 27, 2014, 8:18 AM

Michael Hirsh has a piece at Politico on the disorganized, uncoordinated crafting and implementation of the administration’s strategy to defeat the Islamic State.  Of particular interest to Lawfare readers is the news that National Security Advisor Susan Rice failed to consult with DOD when she wrote a letter to Congress last summer asking for the repeal of the 2002 AUMF.  DOD was surprised by the letter, Hirsh says, because (according to a senior defense official) DOD tought at the time that the 2002 authorities “were still needed.”  Here is the relevant passage:

The office of Defense Secretary Chuck Hagel was taken by surprise as well last July, when national security adviser Susan Rice sent a letter to House Speaker John Boehner requesting a withdrawal of the Authorization for the Use of Military Force (AUMF) passed in 2002 to enable U.S. military action in Iraq. This letter came after Mosul, a key northern Iraqi city, had already fallen to ISIL and the scale of the threat was becoming clear. The letter was never acted on, and in fact the AUMF that Rice wanted withdrawn is now part of the very authority the administration says it is operating under, along with the 2001 AUMF against al Qaeda. The Pentagon was not given a heads-up about that letter either, according to multiple sources. “We didn’t know it was going over there, and there were significant concerns about it,” said the senior defense official. “We had these authorities to go into Iraq under the 2002 AUMF, which is what she wanted repealed. We believed the authorities were still needed.”

Of course we now know that DOD was right, since the administration is now relying on the 2002 AUMF in its uses of force against the Islamic State.

Hirsh closes his piece by noting the 2002 AUMF episode, combined with the White House’s failure to consult DOD on the timing and details of draft legislation on arming the Syrian rebels, constitute “new evidence of a criticism that has dogged this administration for most of its six [sic] and a half years: that Barack Obama’s White House is so insular and tightly controlled it often avoids “outside” consultation—including with its own cabinet secretaries and agencies.”  Hirsh concludes, harshly:

That’s especially true when the issue is one of this president’s least favorite things: opening up new hostilities in foreign lands. To his critics—and I spoke with several for this article inside Obama’s administration as well as recent veterans of it—it’s all a reflection of the slapdash way a president so vested in “ending wars” has embraced his new one.