How to Authorize War

by Jens David Ohlin

The White House has proposed a draft resolution authorizing the President to use military force against ISIL (also know as “ISIS” or simply the “Islamic State”). While it is laudable that the president is asking for specific congressional authorization for military strikes against ISIL, I remain troubled by several aspects of the proposal.

First, the passage of the proposed resolution would replace the existing patchwork of justifications for the current military operations, including the Constitution’s Article II commander-in-chief power, the 2001 AUMF (the so-called “9/11 AUMF”), and the 2002 Iraq AUMF. Regardless of the current administration’s position regarding the lawfulness of military force in Iraq and Syria in the absence of a new AUMF, all three of the prior foundations remain available–at least in theory–as justifications for military action against ISIL. The only way around this is to repeal the 2001 and 2002 AUMFs or to explicitly state in the new AUMF that it, in some way, supersedes them. This is crucially important.

If the prior AUMFs remain on the books and the administration continues to maintain that they are sufficient to justify the current level of military force against ISIL, then it is not clear what the new AUMF is actually accomplished. In particular, as many others have noted, the constraints and limitations in the new AUMF become effectively meaningless because the administration could always rely on the unrestricted and unconstrained authorizations already on the book and still valid. This problem is created by the absurdity of having overlapping statutory authorizations for a military campaign, creating a pick-and-choose menu for this (or future) administration to use when justifying its military deployments. This isn’t a restaurant; this is war. There are too many menu options.

I wonder if there is a middle ground to solve this problem without explicitly repealing prior AUMFs. For example, could the new AUMF simply be amended to state that the president cannot rely on prior AUMFs as authorizations against ISIL? This would allow the prior AUMFs to stay on the books (which plenty of congressional leaders will be unwilling to repeal anyway) while still limiting their applicability with regard to ISIL. It would make the new AUMF the one and only AUMF applicable to ISIL targets. One could describe this as a “partial repeal” or “partial de facto repeal” of the prior AUMF, or you could describe it simply as making the new AUMF a superseding AUMF with regard to ISIL. This would clarify that the constraints in the new AUMF are meant to apply and that the older unconstrained AUMFs cannot be used as an authorization against ISIL.

The next issue is the use of the phrase “associated forces” in the draft AUMF. The phrase “associated forces” has been used before, most notably in the Detainee Treatment Acts as well as in the federal government’s briefs in Guantanamo Bay habeas litigation before the D.C. Circuit. That being said, the phrase never appeared in the 2001 AUMF and Congress never before authorized the use of force against associated forces of al-Qaeda. What’s different now is that the proposed new AUMF includes a very broad definition of associated forces that is arguably much wider than the concept of co-belligerency from which the term “associated forces” gains whatever legitimacy and reflective glory it has. The new definition of associated forces also includes successor entities that are sufficiently related to the original group. Here is the language:

SEC. 5. ASSOCIATED PERSONS OR FORCES DEFINED.
In this joint resolution, the term ‘‘associated persons or forces’’ means individuals and organizations fighting for, on behalf of, or alongside ISIL or any closely-related successor entity in hostilities against the United States or its coalition partners.

Apparently the Administration is concerned that ISIL will collapse and might be replaced by an equally dangerous jihadist entity, with new leadership, but exhibiting the same level of dangerous. The administration wants the AUMF to apply to those groups as well, even if they are not, properly speaking, a part of ISIL. (Incidentally, the notion of “closely related successor entity” reminds one of Robert Nozick’s closest continuer theory of personal identity.)

But there are deeper problems to the use of “associated forces” concept beyond the broad definition offered in the draft AUMF. The whole idea of using “associated forces” in an AUMF is problematic. In order to understand why, it is important to remember the role that military authorizations play within our modern constitutional order. Congress no longer declares war, although it retains the constitutional authority to do so. Pursuant to its constitutionally mandated role in war making (and as articulated in the War Powers Resolution), Congress has the power to authorize the president to deploy military force—a necessary step whenever the President’s Article II authority runs out. There are many disputes about the nature and scope of the Article II power, but unless you believe in an unlimited Article II power, you must recognize that Article II has an outer limit, at which point Congressional authorization is required. That process is essential for multiple reasons.

First, the involvement of Congress provides for an open, transparent, and deliberative assessment of the wisdom of deploying force. “Wisdom” here includes questions of law, morality, and the burden that will be placed on the nation’s shoulders to execute the action. Although the executive branch engages in deliberation, it is neither open nor transparent; it is secretive and insular. Only in the legislative branch do these issues get aired with the appropriate amount of light. At the end of the conclusion of this process, the public knows who we are fighting, and why.

Second, the AUMF announces to the world community the nature of our armed conflict. It sends a signal to the world community regarding the nature of the conflict and the underlying legal and moral rationale for its commencement. All of this is essential for the world community’s assessment of jus ad bellum and its proportionality constraints. Only if they know who and why we are fighting will they be able to decide whether our actions comply with basic principles of international law. The use of the “associated forces” concept in the new AUMF frustrates both of these goals. In order to fulfill its communicative obligation, both to the American people and to the world community, Congress needs to identify—by name—the organizations that we are fighting. Is it too much to ask that we identify, with specificity, the other party to our armed conflict? This is war; the identity of the belligerents isn’t peripheral to the event, its absolutely central and arguably a sine qua non. No belligerents, no armed conflict.

Why would I suggest that Congress owes a communicative obligation to the world community? Usually we don’t talk of Congress owing supra-national obligations to foreign people. But this note of skepticism misconstrues the nature of the communicative obligation. Congress owes the American people an obligation that it communicate to the world community the nature of our armed conflict. Why? Because the military force is being deployed on behalf of the American people, and its lethality, justified or not, will ultimately be attributed to the American nation. In that context, the announcement of military force, in a public and open fashion to the world community, is essential so that the world community knows why the “American people” is engaged in lethal force.

The default presumption in international law is that lethal force is unlawful unless justified by self-defense or Security Council authorization. While in this case I believe that force against ISIL is justified under international law, this is only the first step. The second step is that this justification must be communicated to the world, and Congress owes it to the American people that this communication be clear and successful. Failure to identify the enemy belligerent by name frustrates this communicative obligation.

The Administration might argue that ISIL could collapse in the future and be replaced by a successor organization with a different identity, new leadership, and a different name. What then? The answer is simple: pass a new AUMF.

http://opiniojuris.org/2015/02/15/authorize-war/

7 Responses

  1. This is interesting, but if one considers the use of armed force since the start of the Korean War (which is technically still a war) and congressional action it seems that Congress is becoming increasingly irrelevant. Moreover, the President has a constitutionally-based authority in Art. II, Section 3, to faithfully execute international law — such as UN SC resolutions, NATO resolutions, UN 51 (self- and collective self-defense).

  2. Your suggestion that the White House propose/Congress approve an AUMF applicable only to ISIL targets raises the question of “what is an ISIL target?”

    My understanding is that the relationship between the leadership ISIL and Al-Qaeda has run hot and cold. For example, Al-Qaeda denounced ISIL in February 2014, but then Al-Qaeda in the Arabian Peninsula indicated some degree of support for ISIL in October 2014. I imagine that things get more blurry as one moves down the ladder to fighters on the ground, and/or actors with more attenuated connections to one or both groups. Ultimately, I suspect we won’t have avoided the “absurdity of having overlapping statutory authorizations for a military campaign”.

    Speaking purely in terms of what would be “ideal”, I think your first suggestion is the better one: repeal the 2001 and 2002 AUMFs or explicitly state in the new AUMF that it, in some way, supersedes them. Begin, as much as possible, with a clean(ish) slate laying out new contraints on the use of military force in all U.S. operations.

    This won’t entirely solve the problem presented by muddled realities on the ground, but I think it will represent a better solution (in terms of the communicative function you discussed) than a patchwork of qualification-laden AUMFs.

    You do note the political difficulty in repealing the 2001 and 2002 AUMFs, though, so I understand the need to draft AUMFs for the Congress we’ve got, not the one we want. If you’re really taking the possibility of a “clean(ish) slate approach as a total non-starter, then yes, discussion of totally superceding the 2001 and 2002 AUMFs becomes entirely academic.

  3. To similar effect, see my first and fourth points here: http://justsecurity.org/19928/suggestions-clarifyingamending-draft-aumf

    I think you’ll also concur in my second and third points, Jen, both of which can probably be clarified in the legislative history.

    As for associated forces, although I agree that it’d be ideal for the U.S. to declare the forces against which it is using force, I think it’s too much to expect (or depend upon) Congress to re-evaluate and re-enact each time that happens. It would be sufficient, I think, for the Executive to declare, and then for Congress to interrogate the decisions and, where appropriate, legislate to change them. The more important problem with the draft definition, I think, is its extension to individuals in addition to groups. I discuss this and related issues at the post above.

  4. Jens,

    I think you can claim that Congress’ predecessor, the Continental Congress of 1776, set a valuable political precedent supporting your idea of a “communicative obligation.” As suggested by this paraphrase, especially given the original context in the midst of an armed conflict, it’s only a small step from Jefferson to your position:

    “WHEN in the Course of human Events, it becomes necessary for one People to [use military force], a decent Respect to the Opinions of Mankind requires that they should declare the causes which impel them to the [Action].”

    –Perry.

  5. Thanks Perry. Smart.

  6. Perry: but the President could declare the causes which impel the U.S. to take action.
    Did Congress declare war when President Jefferson used military force in Libya against those who violated treaties with the U.S.? [no]

  7. Jordan,

    Sorry, but honestly I don’t see how the fact that the President sometimes acts on his own authority responds to the point that, when Congress takes an action of such import as authorizing the use of armed force, Congress ought to publicly state its reasons for doing so. Congress seems to recognize this obligation. The AUMF of 2002 has over 20 whereas clauses. The AUMF of 2001 and especially the formal declarations of the two World Wars have much shorter whereas clauses, but they still may be understood as explanatory in light of both domestic procedures (coming in response to public Presidential requests for military authority, with reasons) and the prevailing circumstances (coming in response to armed attacks or formal declarations of war against the US). Of course, the President should explain his military actions publicly as well — especially where, as you note, the President is acting without Congress.

    –Perry.

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