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After the AUMF: Iraq and Al Qaeda Redux

Over at Lawfare, Jack Goldsmith takes quite a different lesson from the push to repeal of the 2002 Iraq AUMF than Steve and I suggested here. In Jack’s view, the administration is not really committing to go back to Congress if it wants to launch attacks in Iraq, as the repeal’s sponsor Rand Paul has suggested; it can simply do so pursuant to the 2001 AUMF, which has been interpreted to cover both al Qaeda and its associated forces.

But as Deborah Pearlstein points out in an excellent post on Opinio Juris, there is little evidence that Islamic State in Iraq and Greater Syria (ISIS), the group that has succeeded Al Qaeda in Iraq and appears to pose the gravest threat in Iraq to date, is either “part of” or an “associated force” of al Qaeda – at least according to the public record.  Notably, it does not appear to be subject to al Qaeda’s command and control, as is required to be “part of” al Qaeda; to the contrary, ISIS’s leader reportedly rejected Al Qaeda leader Zawahiri’s ruling that ISIS operations be exclusively focused on Iraq.    Moreover, its main – and likely exclusive – focus appears to be Iraq and Syria, rather then the United States or its coalition forces, leading it to fail the “associated force” requirement that it is engaged in “hostilities against the United States or its coalition partners.”  Thus, at least based on the information available, it does not appear to be properly subsumed under the 2001 AUMF, even under the administration’s interpretation of the statute as encompassing associated forces.

More importantly, this debate only underscores our main point:  If ISIS or any future administration believes that ISIS poses the kind of sustained, critical threat that justifies a resort to armed conflict, it should make the case to Congress and the American people – and obtain a specific authorization to use military force against that group.  We should not be in the position of debating on the pages of this and other illustrious blogs whether or not our country is effectively at war with a particular entity.   Nor should we enact a new open-ended force authorization that would allow the President to unilaterally declare armed conflict in a country where we have just all too recently declared an end to war.

To be sure, Steve and I are not suggesting that all force in Iraq should be categorically prohibited absent congressional authorization.  As Jack rightly points out, uses of force in self-defense, as well as covert authorities, are still available – and should be employed to respond to grave, imminent threats.  But this is a far cry from suggesting that this or a future administration can simply re-engage in offensive uses of force in Iraq based on a twelve-year old force authorization focused on the specific perpetrators of the September 11 attacks.

 

 

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About the Author

is a professor at American University Washington College of Law. Follow her on Twitter (@jendaskal).