Published by The Lawfare Institute
in Cooperation With
Published by The Lawfare Institute
By coincidence, the same day that Jack, Bobby, Matt and I released our draft AUMF text, a group associated with Just Security released a document entitled "Principles to Guide Congressional Authorization of the Continued Use of Force Against ISIL." There's a lot of common ground between this set of principles and our text, but in my view at least, our draft violates---in whole or in part---three of the principles, and I think it's right to do so. So I'm going to briefly survey the common ground, and then dwell a little on the areas in which I part company with the scholars---Steve Vladeck, Ryan Goodman, Rosa Brooks, Sarah Cleveland, Jen Daskal, Walter Dellinger, Harold Koh, and Marty Lederman---who put the Just Security document together. First, the common ground: I find nothing to disagree with in Principles Three, Five, and Six, and I think our text complies with those principles fully. Principle Three says that a new AUMF should have a sunset clause. Ours does. Principle Five says that a new AUMF should authorize "necessary and appropriate force" and thus require compliance with international law. Our proposal does exactly that. It also explicitly requires compliance with international law in terms of the geography of the conflict. Principle Six seeks transparency and accountability mechanisms. Ours are slightly different from the ones the Just Security principles would demand, but the differences are slight---and in some ways, at least, our draft is more demanding. In any event, the ideas are certainly consistent. I'm afraid, however, that I can't sign on to Principle One, which strikes me as, well, wrongheaded, particularly in combination with Principles Two and Four. "A New AUMF should be ISIL-specific and mission-specific" reads the section headline for the first principle. "Any new AUMF should be limited to the current armed conflict with ISIL," the document says. Really? Why would we want that? I don't want the military proceeding in Iraq on the basis of this new instrument, in Afghanistan---to the extent we will still use force in Afghanistan---on the basis of the 2001 AUMF, and elsewhere in the world on the basis of some indeterminate melange of the 2001 AUMF and inherent Article II powers. I want Congress to lay out what groups it is authorizing a fight against and how much give there is in the joints of that authorization. That is what we tried to do in our text, naming three specific groups---ISIL, Al Qaeda, and the Afghan Taliban---and authorizing military action against associated forces to the extent those forces are engaged in hostilities against the United States. The principles don't really say why a new AUMF should be ISIL-specific, saying only that "Specifying both the identity of the enemy and the objectives of the authorized force is the epitome of democratic responsibility, as it ensures that any new AUMF will be appropriately tailored to the specific threat and conflict justifying such force." But it does not seem to me the epitome of democratic responsibility to define a conflict far more narrowly than one expects to fight it. And I, for one, still anticipate having to use military force against certain older enemies. Leaving these older enemies out of a new authorization might be defensible if Congress were planning to leave the prior authorization for force against them in place. Then my criticism might be dismissed as a housekeeping objection. But the problem with Principle One gets worse as a result of Principles Two and Four. Principle Two holds that "Congress should geographically limit the authorization to uses of force in Iraq and Syria, where there is now an ongoing armed conflict between ISIL and Iraq and the United States, and to any other locations from which ISIL forces actively plan and/or launch attacks against the United States or Iraq." Principle Four, meanwhile, holds that "Congress should include within the ISIL-specific AUMF a sunset provision for the 2001 AUMF." In other words, the Just Security principles propose marrying an ISIL-specific new AUMF with taking away the authority to use force against Al Qaeda and its allies. I actually believe in limiting the conflict geographically (as we do in our draft to situations in which the use of force is consistent with international law) and in repealing the 2001 AUMF outright (as we also do). But if you put these three principles together in the fashion the scholars do here, you end up with a dangerous gap. Over a period of 18 months (the proposed period of the sunset for the 2001 AUMF), we would go from a situation in which the use of force against Al Qaeda and its associated forces is authorized to one in which there would be no congressional authorization for force in Afghanistan (where we will still have 10,000 troops on the ground), Yemen (where AQAP is based), or the tribal areas of Pakistan (where core Al Qaeda is based). We would have instead authorization for the use of force against ISIL only and only in Iraq and Syria and other locations in which the group operates. There would be no authorization to operate against core Al Qaeda, AQAP, the Haqqani Network, the Taliban or any other Al-Qaeda linked nasties to the extent they do not rise to the level of an imminent threat. Do we want that? I certainly don't. The Just Security group proposes that "Setting such a date would allow the next administration and Congress to consider afresh---and with the benefit of renewed democratic participation through the 2016 elections---how to ensure that both the ISIL-specific AUMF and the 2001 AUMF best address the situations that exist at that time." I'm afraid the group's math is a little off. A sunset after 18 months, if enacted in the next few months, would land the lapsing of the 2001 AUMF---and all authority to operate against any non-ISIL group or anywhere outside of Iraq and Syria---smack in the middle of an ongoing presidential election campaign. The authorization to use force against Al Qaeda needs to be modernized, not vaporized. The conflict should be geographically contained to the boundaries in which the enemy operates, not contained to arbitrary boundaries drawn by legislators. And while Congress should define the conflict precisely, it shouldn't write out of the conflict major enemy forces by legislative diktat.
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