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The Administration’s Hard-To-Fathom Draft AUMF

Jack Goldsmith
Thursday, February 12, 2015, 6:33 AM
Before I get to analysis and criticism, let me give the Obama administration credit for proposing a draft AUMF yesterday.  The administration’s many promises about working with Congress to craft an AUMF for the Islamic State (ISIL), combined with the lack of a concrete proposal that has long been the President’s responsibility, had led me to

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Before I get to analysis and criticism, let me give the Obama administration credit for proposing a draft AUMF yesterday.  The administration’s many promises about working with Congress to craft an AUMF for the Islamic State (ISIL), combined with the lack of a concrete proposal that has long been the President’s responsibility, had led me to doubt that it really wanted one. That said, I am very puzzled about what the administration thought it would accomplish – legally or politically – with its proposed ISIL-specific AUMF.  Legally, the draft marks a non-trivial expansion of presidential authorities to use force against Islamist terrorists, contrary to the President’s oft-stated intentions.  Politically, it is hard to imagine broad support for this draft on Capitol Hill. Legal.  Considered in isolation, the draft AUMF appears to be a limited one in many respects by comparison with the 2001 AUMF and many AUMFs of the past.  Yes, Section 5 defines “associated persons or forces” very broadly (more broadly than I have ever seen) to mean “individuals and organizations fighting for, on behalf of, or alongside ISIL or any closely-related successor entity in hostilities against the United States or its coalition partners” (my emphasis).  And yes, unlike the 2001 AUMF, Section 2 in the draft gives the President potentially extra discretion-conferring authority to determine what force is “necessary and appropriate.”  (Compare the 2001 AUMF, which authorized the President to use “all necessary and appropriate force” against the entities that “he determines” authorized, etc., the 9/11 attacks, with the draft AUMF, which authorizes the President to use force that “the President determines to be necessary and appropriate against ISIL”).  But the draft contains a 3-year sunset clause, a vague limitation on the authorization for “enduring offensive ground combat operations,” and a requirement to report “specific actions taken pursuant to this authorization.”  These seem like non-trivial limitations. But the seeming-limitations evaporate when one takes into account other authorities.  The President has for six months claimed that the 2001 AUMF and Article II authorize force against ISIL.  Under the administration’s ISIL-specific AUMF, this prior construction remains entirely untouched.  The White House draft does not propose to sunset the 2001 AUMF (as I and many, many others, including Representative Schiff, have proposed).  Nor does it abrogate its prior construction of the 2001 AUMF related to ISIL.  (By comparison, the draft AUMF passed by the Senate Foreign Relations Committee in December provided: “The provisions of this joint resolution pertaining to the authorization of use of force against the Islamic State of Iraq and the Levant shall supersede any preceding authorization for the use of military force.”)  As a legal matter, therefore, any limitations on Congress’s authorization in the draft ISIL-specific AUMF are meaningless, since the President can simply revert to reliance on the 2001 AUMF as an independent basis of authority for any actions not authorized by the ISIL-specific AUMF.  He can also rely on Article II as an independent basis for the use of force deployed in self-defense.  The limits on the authorization in the ISIL-specific draft AUMF in no way qualify these independent authorities.  And that means they are no limitations at all.  (The ISIL-specific draft AUMF would abrogate the 2002 Iraq AUMF, which the administration has thrown in the mix as a basis for current uses of force against ISIL; but there is no reason to think that killing the 2002 AUMF would in any concrete way narrow the scope of the President’s claimed authority under the 2001 AUMF and Article II.) This explains why the limitations in the ISIL-specific draft AUMF do not in any way limit the President’s overall authorities.  But there is more.  The ISIL-specific draft AUMF actually expands presidential power from the current baseline.  The reason is Section 5, which defines "associated forces."  The administration has already stretched the 2001 AUMF quite a lot to apply to ISIL.  But the draft AUMF would go even further, and authorize force for three years against non-Al Qaeda, non-ISIL terrorists and terrorist organizations that fight “alongside ISIL,” as well as “any closely-related successor entity” to ISIL.  The administration's draft AUMF not only failed to kill its controversial interpretation of the 2001 AUMF to extend to ISIL; it codifies the logic of that controversial interpretation to extend presidential power to use force against threats that develop beyond ISIL.  I would not have much of a problem with this in theory if – a big if – there were a rigorous mechanism for publicly identifying the precise groups other than IS against which the administration would use force, and where.  But the reporting requirement in the draft AUMF does not obviously require this.  Whatever one thinks about the desirability of Section 5, the undeniable fact is that it is an open-ended extender of authority to use force beyond ISIL, and an expansion of congressionally sanctioned force beyond the current baseline of statutory authorities. Politics.  It would have been quite easy for the administration to propose an AUMF that eliminated the controversial interpretation of the 2001 AUMF to extend to ISIL while at the same time maintaining the status quo in terms of the President’s authorities to use military force against all extant Islamist terrorist threats.  (Ben, Bobby, Matt and I drafted such a legally neutral AUMF, but there are many other ways to accomplish this end.)  Two simple changes to its proposed draft would have accomplished this: (1) adding an abrogation of its interpretation of the 2001 AUMF to extend to ISIL (like the SFRC did, see above); and (2) narrowing its definition of “associated forces” to the one that currently prevails under the 2001 AUMF.  These are not rocket-science insights.  The administration knew how to craft a legally neutral draft AUMF.  It also knew how to narrow the President's authorities overall, as the President pledged in his 2013 NDU speech.  And it knew how to maintain the status quo substantively and (as Representative Schiff proposes) sunset all of the authorities, including the 2001 AUMF, which at least would have allowed it to claim to seek temporal limits of sorts on the presidency. But the administration quite self-consciously, and after much deliberation, did not do any of these things.  Instead, it proposed to keep everything under the 2001 AUMF and Article II in place (including the controversial extension of the 2001 AUMF to ISIL), and to give the President the additional authority for three years to go after those “individuals and organizations fighting . . . alongside ISIL or any closely-related successor entity.” It is hard for me to understand the politics of this proposed expansion of presidential authorities.  The expansion is sure to alienate many if not most Democrats, as well as libertarian Republicans.  And yet the draft also appears to have disappointed the Republican presidential power hawks, who are focusing on the faux limitations in the draft without considering how it adds to presidential power overall. For these and other reasons, and as many have noted, the President’s proposal faces a steep uphill battle on Capitol Hill.  If the proposal is rejected, and if no AUMF emerges that satisfies both Congress and the White House, the President’s legacy will be characterized by a controversial interpretation of the AUMF that significantly expands the Forever War.  And he will not be able to blame Congress, since he extended the Forever War unilaterally last Fall, and because the presidential proposal that Congress rejected would have expanded it yet further.  I just don’t get the calculation.  It seems that the President could have attracted much broader support in Congress, and avoided a lot of political and legacy headaches, while at the same time maintaining all extant authorities, with the two simple changes noted above.  At a minimum this approach would have made a rejection of the President’s proposal more palatable to his legacy.  I cannot fathom why he and his Team did not go this route.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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