Looks Like AUMF Basis for ISIL Operation Will Stick

by Peter Spiro

After a flurry of commentary in the wake of Obama’s speech last week and the on-background legal justification that came with it, the silence has been deafening. The immediate reaction to the AUMF hook for the ISIL operation was something approaching disbelief. It came out of the blue and everyone felt blindsided.

But it is attracting some support. Marty Lederman offers a qualified defense here. Cass Sunstein is all in, so by definition it is a credible legal argument. In the New York Times, the ed board and Bruce Ackerman predictably condemn the justification. But the level of agitation among policy elites seems low, on par with responses to past presidential uses of force. There is a lot of chatter on the Hill, but the prospects for affirmative legislation to authorize or limit (or for that matter prohibit) the ISIL operation are slim. There is no groundswell of opposition from the public.

In other words, this one is going to stick. There will be no serious challenge to the Administration’s legal argument that the President has the authority to undertake the operation. From the Administration’s perspective, the AUMF basis has the advantage of turning off the War Powers Resolution’s 60-day clock. It may also look less confrontational to use a statutory justification (even if it is a stretch) than a constitutional one. It fits more comfortably into the Administration’s narrative of interbranch cooperation.

But it may not matter that the Administration grounds its argument in the AUMF and not in its independent constitutional powers under article II and historical practice. The bottom line is the same. The test: how will future presidents put the episode to work? On the one hand, to the extent that it’s just about applying a particular statute to particular circumstances, it might be seen as limited to the facts, good for this day and train only.

On the other hand, one could imagine it being deployed in support of an article II argument, especially to the extent the statutory basis for the operation looks thin in historical perspective. The informality of the justification would make it more pliable. (Will we get the full legal work-out on this from OLC? Maybe not.) If I were an OLC lawyer looking to justify some future military operation on presidential authority alone, it would look like a precedent to me.

The Administration’s strategy on the WPR clock in the Libya context had the same features and may have the same kind of legacy. The “hostilities” argument was thin as an exercise in statutory interpretation, but it was less confrontational than a constitutional claim (minimalism goes to war). The legacy there won’t just be about what qualifies as “hostilities” for WPR purposes. It is as much about the efficacy of the 60-day clock. The Libya episode doesn’t undermine claims that the WPR is unconstitutional. It might even support those claims, at least indirectly (especially as coupled with the Clinton Administration’s similarly thin defense against application of the 60-day clock in the Kosovo case).

So ultimately it may not matter too much which card the Administration played in asserting authority for the ISIL operation. As in the past, a president failed to secure specific, contemporaneous authorization for a limited use of force, and nobody really pushed back.

http://opiniojuris.org/2014/09/17/aumf-isil-constitutional-war-power/

4 Responses

  1. Since the AUMF is phrased in the past tense and only covers certain nations, organizations, and persons in view of their conduct at the time of 9/11 and since ISIS did not exist at the time of 9/11, we had better ask whether each person to be targeted was a member of al Qaeda, etc. at the time of 9/11.

  2. I think that the extensive litigation and debate history about the contours and continuation of the AUMF work to the President’s benefit. While Jordan is right that, as worded, the AUMF almost certainly does not apply to ISIL (unless you can prove that they were pre-9/11 al Qaeda which most of them weren’t). But since it was passed Congress has debated the need/wisdom of amending the AUMF on more than one occasion. At the same time the courts in the Guantanamo habeas cases have put a judicial gloss (AQ and “associated forces”) which Congress has not objected to. While I agree with critics of President Obama’s reliance on a 13 year old resolution that is facially unrelated to the current situation, I think that the White House’s best point would be saying “Congress knows that this has been expansively interpreted and has accepted that. If they don’t like it they can always repeal or amend the AUMF to more clearly limit its reach. They have consciously not done so. I am not overreaching, Congress is underperforming.”

    The White House won’t say that because it implies that Congress could intervene in a way contrary to the Administration’s policy and I doubt they want to concede that. But I believe that is an accurate reflection of the Constitutional state of play. Congress claims that it wishes to be consulted, but I believe that if they want it to be, the ball is already in their court.

  3. Response…I think that the extensive litigation and debate history about the contours and continuation of the AUMF work to the President’s benefit. While Jordan is right that, as worded, the AUMF almost certainly does not apply to ISIL (unless you can prove that they were pre-9/11 al Qaeda which most of them weren’t). But since it was passed Congress has debated the need/wisdom of amending the AUMF on more than one occasion. At the same time the courts in the Guantanamo habeas cases have put a judicial gloss (AQ and “associated forces”) which Congress has not objected to. While I agree with critics of President Obama’s reliance on a 13 year old resolution that is facially unrelated to the current situation, I think that the White House’s best point would be saying “Congress knows that this has been expansively interpreted and has accepted that. If they don’t like it they can always repeal or amend the AUMF to more clearly limit its reach. They have consciously not done so. I am not overreaching, Congress is underperforming.”

    The White House won’t say that because it implies that Congress could intervene in a way contrary to the Administration’s policy and I doubt they want to concede that. But I believe that is an accurate reflection of the Constitutional state of play. Congress claims that it wishes to be consulted, but I believe that if they want it to be, the ball is already in their court.

  4. there is a problem re: congressional authorization by silence in view of the War Powers Resolution. However, the WPR does not preclude use of the U.N. Charter, art. 51 collective self-defense, as a basis for presidential authority tied with the Const., art. II, sec. 3.

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