Published by The Lawfare Institute
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Published by The Lawfare Institute
In August I described a politically palatable AUMF against the Islamic State (IS). What was politically palatable in August is not necessarily politically palatable after three months of air strikes, however, and will likely be even less so when a new and different-looking Congress comes to power next year. In August the emphasis was on simplicity and the narrowness of the authorization, and while simplicity and narrowness might still be appropriate, it will be harder to achieve now than then. Let’s re-consider some of the probable elements of an Islamic State AUMF: Target of Authorization? The Islamic State is the avowed enemy that is motivating a fresh authorization. And so the AUMF should at least extend to it. But now two related issues have become more prominent. First, what about forces associated with the Islamic State? This is an especially urgent issue since the contours of the Islamic State will not always be clear. Absent any specific language on the topic, the Executive branch will interpret the new AUMF to include associated forces, and so congressional silence on the issue will have a clear meaning. But will Congress want to remain silent? Second, what about terrorist organizations not associated with the Islamic State – such as the Khorasan Group, or the Nusra Front – that the United States has hit in its ramped up CT offensive in Syria? Should Congress extend the new AUMF this far? (This question is related to the question of what to do with the 2001 AUMF, see below.) Should it perhaps authorize force not just against the Islamic State, but against all threatening terrorist organizations in Iraq and Syria? This issue will probably be on the table now. Geography? In August I proposed that Congress could "[a]uthorize force only in Iraq and, if the President deems necessary, in Syria." Now that the President has used force against not just the Islamic State in Syria, but also against other terrorist organizations in Syria, perhaps it will be easier to extend the authorization to there. And yet the use of force in Syria – not just against the Islamic State, but also against the Khorasan Group and the Nusra Front – has proven (as many predicted) to seriously complicate the United States anti-Assad (and related) policies. As I noted in August, an Islamic State AUMF “could condition the use of force in Syria on a finding that the use of force would serve U.S. policy goals in Syria, however defined (enhancing the position of moderate rebels, degrading Assad’s position along some dimension, etc.).” Specifying these policy goals in a coherent way will be a big challenge, and might threaten to tie the President’s hand unduly. And there are now additional questions about geographic scope. The Islamic State’s influence is growing in other places, such as Lebanon. Might it be imprudent to extend the AUMF only to Iraq and Syria given the Islamic State’s geographic diffuseness? This question will surely be debated. But remember, an affirmative authorization to use force in Iraq and Syria would not prevent the President from using force under Article II in other places. Ground Troops? In August it seemed politically most palatable not to include the use of ground troops in the AUMF, and perhaps to ban their use in some way. Three months later, this issue is more contested, and support for ground troops, or at least for not taking ground troops off the table, seems to be growing. There are many possibilities for fudging this issue, including authorizing air strikes only (but not banning ground troops and thus leaving open the possibility that the President could introduce them use Article II), or simply authorizing force without mentioning the ground troops issue (which would effectively authorize the use of ground troops). But fudging might not be possible, and the ground troops issue might become a morass. Sunset Clause. Placing a sunset clause (i.e. time limit) on the AUMF was a good idea in August and is a better idea now. Just three months later, the situation on the ground, and the probable scope of the AUMF, look different. Because the Islamic State threat is so fluid, and because the strategic and tactical considerations in fighting them are ever-morphing, Congress should sunset the Islamic State authorization to force itself and the President to revisit the issue after a specified period of time. This should be an easy issue for agreement. What About the 2001 AUMF? On Wednesday the President said that the aim of a new AUMF should be to “right-size and update whatever authorization Congress provides to suit the current fight, rather than previous fights.” Authorizing force against the Islamic State alone in Iraq and Syria will not begin to achieve this aim. For the United States would still need to rely on the 2001 AUMF, not just against AQ and AQ associates in places like Yemen, but also, presumably, for its strikes against what U.S. officials describe as the more threatening Khorasan Group in Syria. To achieve the aim of right-sizing the 2001 AUMF to fit current realities, therefore, Congress would need to find a more general formulation for authorizing force against threatening terrorist organizations that was broad and flexible enough for the modern and ever-changing terrorist threat but at the same time that held the President accountable for not expanding the war unduly, especially in secret. I and some Lawfare colleagues have proposed one such scheme; Harold Koh has proposed something similar. The debate about the authorization of force against the Islamic State is the perfect opportunity to rethink the 2001 AUMF and to refresh and better limit presidential authorities for the fight against Islamic terrorist organizations generally. However, whether the President truly wants to right-size the 2001 AUMF to fit modern realities is unclear given his past statements, and opening up this larger set of issues would make a complex policy and drafting process significantly harder. It would be politically much easier for Congress to simply say nothing about the 2001 AUMF (thus leaving in place the Presidents hugely stretchy interpretation of it), or to sunset the 2001 AUMF (as Representative Schiff has proposed), thereby forcing a future Congress and President to address the issue.
Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. 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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