Published by The Lawfare Institute
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I. Comparing the "Lawfare" Draft ISIL AUMF to the Administration's Proposal
First, and most importantly, I agree completely with Ben that the "Draft AUMF To Get the Discussion Going" that Ben, Bobby, Jack, and Matt proposed back in November is, in almost every important way, a dramatic improvement over the Administration's proposed bill. Just to highlight (and short-hand) some of the key differences, consider the six questions that Jack, Ryan Goodman, and I encouraged Congress to ask about the Administration's bill. Other than the strategic objective, which the November proposal wasn't meaningfully in a position to address, the Lawfare draft does not provoke any of the other questions Jack, Ryan, and I worried about. It's clear (emphatically so) about its relationship with the 2001 AUMF and the sunsetting of all use-of-force authority in three years; it includes robust (and specific) reporting requirements; it incorporates the prevailing understanding of "associated forces," rather than making up a new one; and it doesn't try to impose completely Delphic restrictions on "enduring offensive ground combat operations," whether or not large-scale ground troops should be authorized. It may raise other concerns (more on those in a moment), but unlike the fairly fundamental problems raised by the Administration's distressingly vague draft, I suspect compromise on those points can easily be found.
II. My Outstanding Concerns About the Lawfare Draft
So what are my outstanding concerns about the Lawfare Draft? Let me spell them out as succinctly as possible, because I suspect all of them could be resolved through careful drafting and/or thoughtful compromise:
- One statute versus two. The biggest structural difference between the Lawfare Draft and what I (among others) have argued for elsewhere is the extent to which the former would fold the 2001 AUMF into the ISIL AUMF, whereas the latter would keep them separate--and sunset them both on the same timeframe. Back in November, Ben referred to this distinction as a "housekeeping" objection, and I largely agree (and agreed). The key concern for me is whether merging the 2001 AUMF into the new statute might actually expand (or, at least, codify expansive interpretations of) the scope of the older statute. And that turns on resolution of the other two concerns I have with the Lawfare Draft. So let me turn to those...
- Codifying the definition of associated forces. The Lawfare Draft expressly authorizes force against al Qaeda, the Taliban, and the Islamic State, and "associated forces of [those] entities . . . insofar as such forces are engaged in hostilities against the United States." Although the 2001 AUMF says nothing about associated forces, I don't mind codifying their inclusion so long as the codification formally incorporates the Jeh Johnson definition of associated forces of al Qaeda--to wit, "(1) an organized, armed group that has entered the fight alongside al Qaeda, and (2) is a co-belligerent with al Qaeda in hostilities against the United States or its coalition partners." So long as that definition is included, that assuages to some degree my concern over folding the two statutes into each other.
- Formalizing IL-based geographic constraints. Section 3 of the Lawfare Draft specifies that "The authorization of force in Section 2 extends only to operations in places where force can be used consistent with applicable international law concerning sovereignty and the use of force." This, to me, is a flawed application of a very good idea--that is, that the authorization should be pegged to international law, and that IL (and not the statute itself) should provide the meaningful constraints on the scope of the conflict. This is, at least to date, how most have understood the 2001 AUMF as interpreted by the Supreme Court in Hamdi, but unlike the Lawfare Draft, the 2001 AUMF says nothing at all about international law; it merely authorizes "necessary and appropriate force," which Justice O'Connor interpreted as incorporating IL (as Judge Kavanaugh helpfully summarized in Hamdan II). Lest specific language accidentally be interpreted as excluding things it didn't mean to (e.g., IL limits that don't "concern sovereignty and the use of force"), I'd prefer the Hamdi approach--which, given the comparable language of section 2(a) of the Lawfare Draft, is already reflected even without section 3. In other words, I'd just get rid of section 3. Or, at the very least, rewrite section 3 to make its incorporation of IL far more general.
III. The Political Obstacles
If meaningful consensus between folks like me and Ben is possible on how to draft an ISIL AUMF, why has this proven so difficult? The answer, on which I suspect Ben and I also have common cause, has nothing to do with the (modest) substantive space between us, and everything to do with the dogmatic politics presently characterizing the debate on the Hill. A number of prominent Republicans seem to be allergic to sunsets (or any constraint on an AUMF); just as many prominent Democrats seem to be willing to dig their heels in on barring widespread use of ground troops (never mind the linguistic and political difficulties of drafting such a constraint); and the Executive Branch seems hell-bent (especially behind closed doors--where it appears to be actively campaigning on the subject) on leaving the 2001 AUMF wholly untouched during the ISIL AUMF process, including adamantly resisting the inclusion of a sunset. [N.B.: I gather that the Administration is worried about the ISIL debate corrupting the 2001 AUMF, and so is waiting for a future date to re-engage on seeking to "refine or repeal" the older statute, but I no longer understand what future moment the Administration could possibly think it's waiting for.]
So long as any of these positions (to say nothing about all of them) remain intractable, meaningful compromise is just not feasible, and so we'll be left with the status quo--in which no one is satisfied.