Is the AUMF Limited to the United States Armed Forces?

Bobby Chesney has responded at Lawfare to my most recent post on the CIA and the public-authority justification. It’s an excellent response from an exceedingly smart scholar. I still disagree, but Bobby’s post really hones in on the differences between us. I’ll leave it to readers to decide who has the better of the argument.

I do, however, want to discuss Bobby’s reading of the AUMF. In his view — echoing John Dehn’s comments — it is possible to read the AUMF to authorise the use of force by both the military and the CIA:

I’m not actually agreeing with [Kevin’s] AUMF reading. Yes, Section 2′s title refers to the armed forces, but the actual text of section 2 is not so limited (in contrast to the similar section of the 2002 Iraq AUMF, for example, which did refer explicitly and only to armed forces). 

I confess that I find this argument baffling. It’s true that Section 2(a) of the AUMF does not mention the Armed Forces, providing only that “the President is authorized to use all necessary and appropriate force against those  nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11,  2001.” Read in context, however, I don’t see how it is possible to plausibly maintain that the word “force” in Section 2(a) does not specifically refer to force by the United States Armed Forces.

First, the AUMF is a Joint Resolution whose purpose, according to its very first line, is “[t]o authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.”

Second, Section 1 of the AUMF (“Short Title”) says the joint resolution “may be cited as the “Authorization for Use of  Military Force.” We do not traditionally associate military force with the CIA, even if the CIA occasionally engages in paramilitary activity. (And the “para” in paramilitary is important in this context.)

Third, Section 2 of the AUMF, which contains the “force” language upon which Bobby and John rely, is entitled “Authorization For Use of United States Armed Forces.” I know of no theory of statutory interpretation nor any canon of statutory construction that would suggest “force” in the first paragraph of a section entitled “Authorization For Use of United States Armed Forces” should be read in context to refer to something other than the use of force by the Armed Forces.

Fourth, Section 2(b)(1) provides that “[c]onsistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.” Section 8(a)(1) of the WPR provides as follows (emphasis mine):

Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred —

(1) from any provision of law (whether or not in effect before the date of the enactment of this joint resolution), including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution.

Similarly Section 5(b) of the WPR provides, in relevant part (emphasis mine):

Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces.“

To be sure, the 2002 AUMF for Iraq is perhaps slightly more clear, because it uses “Armed Forces” in both the title of the authorisation section and in the text below, to wit:

SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) Authorization — The President is authorized to use the Armed  Forces of the United States as he determines to be necessary and  appropriate in order to…

Still, it is difficult to imagine that Congress would have worded the two authorisation clauses so similarly if it had intended them to authorise completely different things — the use of force by both the military and the CIA in the AUMF, but the use of force only by the military in the Iraq AUMF. Moreover, Preambular paragraph 21 in the Iraq AUMF — Preambles being important in this context, according to Lawfare‘s own Wells Bennett — significantly muddies the waters (emphasis mine):

Whereas the President and Congress are determined to continue to take all appropriate actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such persons or organizations.

The preambular paragraph does not limit “all appropriate actions” to the Armed Forces. Does that mean we should read the Iraq AUMF as authorising the CIA as well as the Armed Forces to use force in Iraq, despite the language of Section 3?

We can, moreover, expand the comparison. Helpfully enough, Cody Poplin has a post at Lawfare today that links to the text of four “would-be ISIS AUMFs.” Let’s take a look at their operative language — emphasis mine throughout. First, Rep. Frank Wolf’s:

SEC. 2. AUTHORIZATION FOR USE OF ARMED FORCES.

(a) IN GENERAL.—The President is authorized, with the close consultation, coordination, and cooperation with NATO and regional allies, to use all necessary and appropriate force against those countries, organizations, or persons associated with or supporting terrorist groups, including al Qaeda and its regional affiliates, the Islamic State of Iraq and Syria, al Shabaab, Boko Haram, and any other emerging regional terrorist groups that share a common violent extremist ideology with such terrorist groups, regional affiliates, or emerging terrorist groups, in order to eliminate all such terrorist groups and prevent any future acts of international terrorism against the United States or its allies by such terrorist groups, countries, organizations, or persons.

Second, Bill Nelson’s:

SEC 2. AUTHORIZATION FOR USE OF UNITED STATES FORCES AGAINST THE ISLAMIC STATE IN IRAQ AND THE LEVANT

(a) IN GENERAL.—That the President is authorized to use appropriate force against the Islamic State in Iraq and the Levant (ISIL) in order to prevent terrorist attacks on the people and interests of the United States and our allies. 

(b) NO AUTHORIZATION FOR USE OF ROTATIONAL GROUND FORCES.—The authorization in this section does not include authorization for the use of rotational ground forces.

Third, Rep. Darrell Issa’s:

SEC. 2 AUTHORIZATION FOR LIMITED USE OF UNITED STATES ARMED FORCES

(a) AUTHORIZATION.—The President is authorized to use the Armed Forces of the United States as the President determines to be necessary and appropriate in order to defend the national security of the United States against the continuing threat posed by the Islamic State of Iraq and the Levant (ISIL). 

Finally, Sen. James Inhofe’s:

SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES

(a) IN GENERAL.—That the President is authorized to use all necessary and appropriate force in order to defend the national security of the United States against the threat posed by the organization called the Islamic State (of “IS”), formally known as the Islamic State of Iraq and the Levant, as well as any successor organization. 

According to Bobby and John’s approach to interpreting AUMFs, we must conclude the following:

• The Wolf AUMF authorises the use of force by the military and by the CIA, because Section 2(a) does not repeat the expression “Armed Forces.” It says “all necessary and appropriate force.”

• The Nelson AUMF authorises the use of force by the military and by the CIA, because Section 2(a) does not repeat the expression “United States Forces.” It says “appropriate force.” But the CIA — like the military — cannot operate on the ground, because Section 2(b) prohibits the use of “rotational ground forces.” (Unless, of course, each and every CIA agent will stay in Iraq and/or Syria until ISIS is destroyed.)

• The Issa AUMF authorises the use of force only by the military, because Section 2(a) repeats the section title’s reference to “United States Armed Forces.”

• The Inhofe AUMF authorises the use of force by the military and by the CIA, because Section 2(a) does not repeat the expression “Armed Forces.” It says “all necessary and appropriate force.”

Who knew that Darrell Issa was much further to the left than Bill Nelson?

I kid, of course. No one is further to the right than Darrell Issa. My point, I hope, is obvious: legislative drafting is a messy, illogical exercise that rarely leads to the kind of precise language that Bobby and John’s ultra-formalism requires. On the contrary, it is rarely if ever possible to point at individual words in statutes and assume that they take their literal meaning; we must always read statutory language in context. (Halbig, anyone?) And in the overall context of the AUMF, I simply fail to see how we can separate the word “force” from all of the other provisions in the statute that, read together, clearly indicate that Congress was only authorising the use of the United States Armed Forces.