Our friends over at Lawfare have been pondering what the legal authority might be for the President to order air strikes against ISIS in Iraq and/or Syria. Such speculation is premature. The President has not decided what, if any, use of American force might be effective, warranted, and wise; nor do we know much about the existence or extent of Executive Branch consultation with Congress and our allies. We do know, however, that President Obama has not formally asked Congress for any authorization to act.
That said, some commentators have begun the discussion about whether existing domestic authority would support such uses of force against ISIS, and so we thought it important to join (and reorient) the conversation along two dimensions: (1) to show how implausible the claims are that the 2001 (9/11) and 2002 (Iraq) AUMFs might provide the President with authority to use force against ISIS in Iraq; and (2) to use this debate as an illustration of the dangers of preemptively authorizing the use of force in the absence of specific facts that warrant it.
I. The Current AUMFs
On October 16, 2002, Congress authorized the President to engage in an international armed conflict with the State of Iraq in order to resolve concerns that Saddam Hussein was assembling weapons of mass destruction in defiance of Security Council resolutions. Almost every passage in the 2002 AUMF—including both the preamble and the operative paragraphs—is written with that express purpose and design. Indeed, the resolution even conditions the exercise of the authorized use of force on the President’s assurance that “further diplomatic or other peaceful means alone … is not likely to lead to enforcement of all relevant United Nations Security Council resolutions regarding Iraq.” If Saddam had fully capitulated to all Security Council resolutions the next day, presumably the Iraq AUMF would have been, for all practical purposes, essentially defunct. In fact, it is precisely the type of narrow and tailored AUMF for which we have advocated elsewhere.
Now imagine that a Palestinian terrorist group operated a training camp in some remote region of Iraq in 2002, and President Bush decided to use the 2002 AUMF’s authority to start a non-international armed conflict with that terrorist organization. That is clearly not what Congress had in mind. And taking such action—against a different enemy, a different threat, and a different form of armed conflict—would surely violate the plain language of the 2002 AUMF (not to mention the deeper democratic principles at stake).
Nevertheless, Jack Goldsmith, over at Lawfare, argues that the 2002 Iraq AUMF (which is still on the books) “almost certainly” authorizes the use of force against ISIS in Iraq. Jack’s argument rests on the phrase in the 2002 AUMF that authorizes the President to “defend the national security of the United States against the continuing threat posed by Iraq.” This language, Jack argues, includes not just the WMD-specific threat posed by the State of Iraq at the time. It also, in his view, includes any new threats that emerge out of the geographic space of Iraq—foreseeable at the time of the authorization or not, within the same decade or not, and regardless of the Iraqi government’s involvement. (Indeed, if Maliki’s government did not consent to the operation, Jack’s interpretation would presumably provide the domestic law authority for the President to trigger yet another international armed conflict against the democratically elected government of Iraq.)
Based on the explanation above, we completely disagree with Jack’s all-but-frivolous reading of the statute (and thus share Wells Bennett’s critique). So does the Obama Administration. When asked about the 2002 AUMF in the context of the current crisis with ISIS, national security spokesperson Caitlin Hayden reiterated the position that “the Administration supports the repeal of the Iraq AUMF since it is no longer used for any U.S. Government activities.”
In addition to Wells’ objections, it’s worth noting another flaw with Jack’s analysis: Jack argued that the President can use force against ISIS because the text of the 2002 AUMF refers to “defend[ing] the national security of the United States.” But on Saturday, in an analysis of whether the President could act against ISIS pursuant to his Article II authorities alone, Jack wrote that ISIS does not even pose “a sufficiently important national interest.” In his words:
“Traditionally the ‘national interest’ criterion was satisfied if the President was acting to protect U.S. persons and property. Anything that goes beyond that requires special justification, for if the ‘national interest’ is unmoored from protecting U.S. persons and property and interpreted too broadly, there is no effective legal limit on the President’s unilateral power to use of force, since U.S. national interests are so capacious.”
In other words, Jack’s statutory argument rests on an assumption that his constitutional analysis rejects, i.e., that ISIS currently poses a sufficient threat to U.S. national security to justify the use of force. At the very least, Jack needs to explain how ISIS could satisfy the threat to national security criteria under his (flawed) reading of the 2002 Iraq AUMF if it does not pose a sufficient threat to “U.S. persons and property” sufficient to trigger Article II. To us, this underscores both the weaknesses of Jack’s statutory interpretation and the dangers of preemptive use-of-force authorizations of the type that Jack has advocated for in the past (i.e., in last year’s Hoover white paper). If the narrowly tailored 2002 Iraq authorization can be read in this way, imagine the expansive interpretations that could be given, years or decades letter, to authorizations of the type proposed in the Hoover paper, which are wholly untethered to specific conflicts, a specific need, or the actual facts on the ground. In other words, Jack’s interpretation of the 2002 Iraq AUMF makes the case against a preemptive and open-ended new AUMF better than we ever could.
Finally, what about the 2001 (9/11-based) AUMF? As Bobby Chesney explains, regardless of its (testy) relationship with al Qaeda, ISIS has not directed any of its hostilities against the United States, and therefore, on our read of it, does not meet the Obama Administration’s criteria for an “associated force” subject to military force under that statute. (Bobby separately suggests that Iraq might be deemed a “coalition force” and therefore ISIS might qualify as an “associated force” based on its attacks on a coalition force – Iraq. We, however, are not aware of any indication that Iraq qualifies as a coalition force under the administration’s interpretation; and even if it is, we are not convinced that the AUMF could fairly be read to sweep so broadly as to authorize uses of force against any terrorist groups with relationships with al Qaeda that attack any of our coalition partners but direct no hostilities toward us.) Thus, in our view, even if there was a stronger relationship between ISIS and al Qaeda than what appears to be the case, there’s no credible argument for applying the 2001 AUMF based upon uses of force that that are not directed against the United States. This explains why the 2001 AUMF would not provide the President authority to use force against ISIS in Iraq even if the organization reunites with al Qaeda. Nor would the commencement of limited U.S. operations against ISIS somehow bring ISIS within the scope of the 2001 AUMF, unless ISIS changed its approach and tactics to begin directly attacking U.S. persons or property. The key, as has become so clear in other contexts, is that the associated force must be (1) supporting al Qaeda (2) in hostilities against the United States. So far as we can tell, ISIS meets neither of these criteria.
II. Lessons learned for debates about AUMF reform
As we noted above, Jack’s interpretation of the 2002 Iraq AUMF underscores the larger concerns we should all have when it comes to forward-looking use-of-force authorizations of the type Jack has advocated in the past. It also reinforces the larger point Jen and Steve sought to make in their “After the AUMF” paper: Use-of-force authorizations should be crafted carefully and thoughtfully in response to specific threats that cannot be appropriately addressed through existing law enforcement and self-defense authorities.
That said, we share Jack’s larger concern about over-expansive interpretations of Article II. We strongly disagree, however, as to the best way to ameliorate those concerns. It seems to us that Jack’s dual proposals for (1) expansive (and unsupported) readings of past authorizations; and (2) open-ended future-looking force authorizations would exacerbate, rather than mitigate, broader concerns about presidential overreach and excessive war making, giving the President the authority to claim congressional buy-in, even when the legislature hasn’t remotely considered the specific context in which force is being used.
Moreover, it is wrong to suggest that the absence of such an AUMF going forward puts the nation at risk. Article II does provide an important back-stop, permitting the President to take steps to protect the nation, if and when a situation poses the type of direct and imminent threat to national security that cannot be dealt with through other means. And if and when a threat rises to the level that justifies a new declaration of armed conflict, the Executive should work with Congress to obtain a narrowly-tailored use of force authorization to address that specific threat.
In this case, for example, it very well may be that the administration ultimately decides it wishes to engage in uses of force to support the Iraqi government—irrespective of any direct and immediate threat to U.S. national security that would justify actions in self-defense. In such a case, we agree with Jack that Article II authorities alone are insufficient. In such a case, the Executive should go to Congress and obtain a use-of-force authorization for that specific purpose, based upon public buy-in and support — and not rely on the outmoded and totally unrelated 2002 AUMF.