AUMF: Syria

Too Soon to Assess the President's Invocation of the 2001 AUMF as to ISIS?

By Robert Chesney
Wednesday, September 17, 2014, 4:17 PM

Over the past week there has been much talk about the President's invocation of the 2001 AUMF in connection with ISIS. Many (including me) expressed considerable surprise, and doubt, about the merits of that argument. Which raises the question: will anything come of objections? One view is that this ship has sailed. Writing today at Opinio Juris, for example, Peter Spiro concludes that the President's 2001 AUMF argument is likely to "stick."

If by "stick" he means that neither Congress nor the courts are likely to take an action that would cause the administration to back down from this claim, or that would effectively reject this claim, no doubt he is correct. We all understand that litigation almost certainly would go nowhere, barring the capture and detention in the US or GTMO of an ISIS member who might then bring a habeas action testing the issue. And there are many reasons why Congress is unlikely to take effective action of its own. Not knowing what the future holds, the most attractive position for many members of Congress is to remain in a position to claim credit should the policy unfold well (for example, by passing legislation to fund the training of Syrian fighters) while still being free to object if it instead unfolds poorly. There is little incentive to stand on principle by trying to induce the institution as a whole to take some action to show disagreement with the 2001 AUMF argument, and indeed it is unclear what effective action could be taken given that many members in fact do want the administration to step up its use of force against IS. (This dynamic is precisely why it is much in the administration's interest to get more explicit Congressional buy-in for the policy as soon as it can be had).

If instead "stick" means something stronger--i.e., if this is a claim that the consensus of opinion has or will come to accept the merits of the 2001 AUMF argument--I'm not convinced. To take just one notable example--one that Cody notes here-- Senator Kaine has made clear he is not buying it, even though he does support passage of a fresh and tailored AUMF to support the President's policy.