Published by The Lawfare Institute
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Published by The Lawfare Institute
One senses growing pressure, within and without the White House, for the President to seek authorization from Congress for what he and his aides say will be a long battle against the Islamic State (IS). Last week I outlined the political concerns in Congress and the White House, and earlier this week I argued that the President should seek congressional authorization despite these political concerns. One way to make an IS authorization politically palatable to both the President and Congress is to make it narrow. Politically palatable narrowness could be accomplished in four easy steps: Authorize force only against ISIS. One criticism of the 2001 AUMF is that it identifies the enemy too broadly, allowing all manner of entities to come under its force authorization. Identifying IS specifically will attenuate this concern. And if Congress (or the President) worries about the authorization being extended by interpretation to associates of IS (as two administrations have now done with the 2001 AUMF), Congress can specify that associated forces are not included within the IS force authorization. If associates of ISIS present a dangerous threat, the President can always rely on Article II. Authorize force only in Iraq and, if the President deems necessary, in Syria. One objection to the 2001 AUMF is that it lacks geographical limitation. To address this, Congress can simply limit the geographic scope of its authorization, perhaps to Iraq and Syria. If dangerous and threatening ISIS members show up in other countries, the President can still rely on Article II. Make plain that the authorization doesn't include the introduction of U.S. ground troops in either country. The President keeps mentioning this, and so it should not be a problem to put this limit in the authorization itself. And again, the President always has Article II as a basis to introduce Special Operations Forces, CIA operatives, and even ground troops in a true emergency. (Or Congress could go further and affirmatively ban the introduction of traditional ground troops, perhaps with an exception for emergency situations to protect U.S. lives.) Place a time limit – a sunset clause – on the authorization. The 2001 AUMF has been criticized for being too old to authorize current operations against al Qaeda and affiliates. The 2001 Congress addressed a far different threat from the one AQ and its friends pose today. This problem too can be fixed in an AUMF for IS. Simply make the authorization good for a year, or two, or, perhaps three years, so that Congress is not forced again to address the issue during Obama’s tenure. But put some time limit on the authorization so that the President must return to Congress within a few years to revisit the nature of the threat and appropriateness of the authorization. Three quick notes about an IS AUMF of the type outlined above. First, every one of these limitations has a precedent, and most of them have several precedents. (For quick summary, see pages 2072-2078 of this article by Curtis Bradley and me.) Second, the ISIS AUMF will need to make clear that the limits above are limits on what Congress authorizes, and not limits on presidential power outside the authorization. (I assume here that, with the possible exception of introducing traditional ground troops, neither Congress nor the President would want to forbid the President from acting outside the authorization, when necessity requires, pursuant to his Article II powers.) This can be accomplished in many ways, including by a preambular statement that makes plain that, except where specified, the authorization does not affect the President's independent powers of self-defense under Article II. (Other AUMFs, and not just the 2001 one, contain such language.) Third, a narrow AUMF of the type described should give cover to members of Congress who don’t cherish an AUMF vote, for they can emphasize how narrow and limited the authorization is, especially by comparison with the 2001 one. The narrow AUMF also helps the President. It gives his actions against IS enormous domestic legitimacy, as I explained earlier this week. And it also helps him reconcile his current actions with past statements. With only a little stretching and a tad of revisionist history, the President could claim that an IS AUMF is consistent with his 2013 NDU speech because it narrows presidential power. An IS AUMF of the type described above technically would not narrow presidential power, of course. It would expand it, because it would add to the President’s Article II power and his power under the 2001 AUMF. But the President could, and surely would, fudge the issue, emphasizing how much more narrow and limited and sober and prudent “his AUMF” is, compared to the 2001 one he inherited. UPDATE: One challenge to an AUMF against IS in Syria is that, as many have noted, degrading IS in Syria helps, or might help, Bashar al-Assad, contrary to U.S. policy in Syria. There are precedents for dealing with and fudging such policy conflicts in AUMFs. Basically, Congress simply conditions the use of force on findings by the President that the use of force serves or is consistent with some policy goal. For example, the 2002 Iraq AUMF conditioned force on a determination by the President that diplomatic initiatives alone would not meet the threat or result in enforcement of U.N. Security Council resolutions. Similarly, an IS 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.)
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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