Why A Substantively Neutral But Procedurally Constraining AUMF Makes Sense

By Jack Goldsmith
Tuesday, November 11, 2014, 5:55 AM

A few weeks ago Matthew Waxman and I ended our critical essay on President Obama’s war powers legacy by noting that “Obama’s legacy will look quite different if, after the midterm elections, he seeks and receives congressional authorization for the use of force against IS, especially if he also works with Congress on a framework statute that updates the 2001 AUMF to deal with the many emerging threats around the world in a principled, transparent manner with prudent limits.”  Last week President Obama said:

I’m going to begin engaging Congress over a new authorization to use military force against ISIL. …

... [T]he idea is to right- size and update whatever authorization Congress provides to suit the current fight, rather than previous fights.

… [I]t makes sense for us to make sure that the authorization from Congress reflects what we perceive to be not just our strategy over the next two or three months, but our strategy going forward.

The President has suggested before that he wants to engage Congress on a revised AUMF.  But this time I think he means it.  And so in that connection I want to briefly explain why I think the draft AUMF proposed by Bobby, Matthew, Ben, and me is the right way to go.  In a nutshell, the draft AUMF codifies all of the authorities the President currently says he possesses and needs, and adds no new authorities; it imposes a three-year time limit on the authorities and robust disclosure requirements about who we are fighting and where; and it repeals the 2001 and 2002 AUMFs.  Here in brief is why I think this a good solution to the problem of how to “right-size and update” Congress’s authorization for the use of force against terrorist threats.

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 our proposed 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 that President Obama, who often says he is in favor of such constraint, can take credit for proposing and accepting.

I know that there are counterarguments to these arguments, and I also know that politics in the worst sense will make rational policy very hard in this area.  I nonetheless thought it worth making the argument for preserving (but updating) the substantive status quo while also adding procedural limits, perhaps as a starting point for negotiation even if not an ending point.