Midday yesterday, I ran into a prominent national security reporter on the street near Brookings. The conversation quickly turned, as conversations tend to turn in our circles in Washington these days, to proposals for a new AUMF. We talked briefly about the one that Jack, Bobby, Matt, and I had drafted and about its areas of common ground and difference with the AUMF principles posted on Just Security. But before I knew it, I was off on a odd verbal jag: Why is this subject even important at all, I was wondering aloud on a street corner?
We are, after all, already attacking ISIL with military force. The lack of a congressional authorization hasn't stopped the president from hitting the targets he wants to hit. The presence of one---should Congress pass it---will not materially change the target list. The military is not going to refuse the orders to strike ISIL targets in Syrian or in Iraq, or Al Qaeda affiliated targets elsewhere because Congress fails to act. So why exactly does it matter at all whether Obama seeks an authorization, or whether Congress passes one? Standing there on 17th Street NW, I found myself wondering to this reporter whether these authorization discussions are ones we all go through because they're really interesting legal puzzles but ultimately have little functional importance. If we are going to do the same things whatever Congress does, isn't the exercise really more of a Fourth of July-type civic celebration of democratic forms than a real exercise in writing rules?
Prior to this conversation, I confess I was not especially aware of having doubts about the importance of the AUMF reform question, but I've been thinking ever since about whether it does, in fact, matter, and if so, why? The answer is not obvious, and we tend to skate over it. We go right to the question of whether and how the AUMF should be revised, whether and what sort of new one is a good idea. We don't spend a lot of time discussing why the presence or absence of an AUMF matters. And when we do, we tend to use catch-all phrases like "congressional buy-in" or "democratic legitimacy." We have this sense that it matters a lot to the balance of power between Congress and the executive branch, but we also know perfectly well that the President can---and has---ordered troops into combat in situations that clearly exceed his inherent authority to use force. So in fact, the president does not as an empirical matter need Congress. If he decided tomorrow to launch an unprovoked strike against, say, Teheran, I have no doubt the order would be carried out. Military campaigns with no plausible self-defense rationale have already taken place; think only of Libya. So what role is an AUMF really playing beyond the show of civic participation? Is it no more than a display of consent by the people's representatives for what everyone knows is going to happen anyway---a display that maintains what is really a fiction that such consent is necessary?
I think the AUMF debate does matter, but for reasons that are subtle and worth laying out. What's more, the AUMF debate might matter a lot less today than it used to matter. The reason, as Jack discussed at length in last week's episode of the Lawfare Podcast, is that President Obama has been super-aggressive in his claims of authority to use force without congressional authorization. So it may well be that the importance of these resolutions is fading over time as presidents lay bare the fiction that congressional consent is really essential. Still, the resolutions do retain functional importance in several respects.
First, it is certainly possible for the President to conduct a short campaign without congressional support. It is not clear, however, that any such campaign is sustainable over a protracted period of time without congressional endorsement. When the president acts without congressional support, congressional silence can relatively quickly shift into congressional opposition. By contrast, forcing members to vote makes it very difficult for them later to withdraw their support for operations. Consider only how difficult their votes for the 2002 Iraq AUMF made opposition for later Democratic presidential candidates Hillary Clinton, John Edwards, and John Kerry. Institutionally, the legislature has a far harder time objecting to wars it has authorized. When it has tried to object to aspects of the war against Al Qaeda and the Taliban, the Executive Branch has a powerful weapon to throw back in its face: I'm doing, the president gets to say, exactly what you authorized me to do. And the objections fail to gain traction.
Second, the texts of authorizations actually do shape the contours of the conflicts we fight. People often complain about the unbounded scope of the 2001 AUMF, but it actually isn't unbounded. It's just that we have so internalized the bounds it imposes that we don't even notice them. There are lots of groups around the Middle East, some of them with serious American blood on their hands---think only of Hezbollah---whom we do not launch military operations against. One reason is that they are not within the confines of the AUMF. People disagree with the way the administration has interpreted the scope of the conflict under the AUMF, but it does bound a certain perimeter of what the is inside and outside the conflict. Moreover, the text of authorizations to use force have a way of trickling down the bureaucracy in regulations, rules of engagement, orders, and other administrative measures. Authorizations thus not only influence macro judgments about the scope of the conflict, they also inform more granular judgments about who is and isn't a lawful target and thus provide guidance for operational planning.
Third, the text of authorizations define detention authority. This is strikingly true of the 2001 AUMF, which is literally the judicially enforceable law of Al Qaeda and Taliban detention. But more generally, it's unlikely that the president would claim robust detention authorities pursuant to a conflict he undertook under his powers of preemptive self-defense. This distinction may not matter all that much in the ISIL conflict, which the President seems bent on waging largely from the air. But if we ever end up capturing significant numbers of ISIL personnel, it will matter a lot whether the conflict is authorized by Congress or not.