Published by The Lawfare Institute
in Cooperation With
Published by The Lawfare Institute
Last night the President “call[ed] on this Congress to show the world that we are united in this mission by passing a resolution to authorize the use of force against ISIL.” This comes on the heels of his November statement that “I’m going to begin engaging Congress over a new authorization to use military force against ISIL.” Which came on the heels of his September statement that he “welcome[d] congressional support” for a new AUMF for the Islamic State. The President has not accompanied this very slight rhetorical progression with any indication of what he wants the new AUMF to say or do, or with any action to secure a new AUMF. I have previously explained that historical practice shows that “President Obama won’t get an AUMF from Congress unless he formally asks Congress to act, proposes terms, and pushes for enactment; or unless the fight against Islamic State goes so badly that Congress intervenes in reaction.” The White House knows this history, and the reasons why a presidential proposal and push are vital to securing a new AUMF. But the President himself has said and done nothing beyond uttering the non-conclusive words above. His Administration’s actions have been non-committal, both in Secretary of State Kerry’s hard-to-fathom passive performance before the Senate Foreign Affairs Committee in December, and in the White House’s persistent refusal, despite many congressional requests, to offer draft language for a new AUMF. At this point it seems pretty clear that the Obama administration is not serious about securing a new AUMF. It seeks to appear to want to put the fight against the Islamic State on a stronger legal footing. But its actions reveal that it doesn’t really want this (and that the President doesn’t mean what he often says about the importance to our democracy of having the contemporary Congress on board in this context). Really wanting to put the fight on a stronger legal footing requires taking a position on what is needed and why, and pushing hard for it. The administration has never shown any taste for working with Congress on AUMF-related issues, dating back to the 2009 Archives speech (when the President pledged “work with Congress to develop an appropriate legal regime” for long-term detention, but never followed up), and the 2013 National Defense University speech (when the President pledged to “engage Congress about the existing Authorization to Use Military Force” in efforts to “refine” its mandate, but never followed up). And it doesn’t show a taste for it now. Part of this reticence flows from the administration’s well-known distaste for the politics of these issues. But part of it, I suspect, is that the President does not want his legacy associated with a new AUMF that extends the endless war against Islamist terrorists legally, conceptually, and geographically. The president as recently as two years ago was hoping to declare an end to war against Islamic terrorists. “[T]his war, like all wars, must end,” he said, just after expressing his hope to “ultimately repeal” the 2001 AUMF. The rise of the Islamic State forced him to back off that hope. But its rise has not yet forced him in to a new statute for a new war. Instead, the President’s lawyers extended the old AUMF to the Islamic State with a justification that some have questioned but (since the American people are not paying attention) has worked just fine for four months. Sure, the President’s legacy will be tagged with his extension of the mandate of the 2001 AUMF (and with violating his pledge not to do). But he and his team appear to have concluded that such a legacy is less bad than one in which the President actively seeks and receives a new law that extends the mandate of the fight against Islamist terrorists. Rhetorically, the President says he wants a new AUMF. But rhetoric accompanied by non-action suggests that he wants to run out the clock without being burdened by one.
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.
All civilian casualties in this war are tragic. But context, intentions, and legal duties tell us which are violations of the laws and ethics of war.
The Jabalia strike indicates that the IDF’s tolerance for civilian casualties is multiples greater than that of the U.S. in the ISIS war.