Re-Engaging on an ISIL AUMF

In the past few weeks, Jack Goldsmith and Matt Waxman on the one hand, and Marty Lederman on the other, have restarted a discussion about the significance of Congress’ ongoing failure to enact legislation expressly authorizing the United States’ expansive use of force against ISIL in Iraq, Syria, and now in Libya. In a piece for Time Magazine, Jack and Matt faulted the Obama Administration for failing to “return to the Congress and the American People and insist on a new authorization for this new war.” They argued that the Administration “took away every political incentive that the responsibility-shy Congress might have to debate and authorize the war” by advancing the dubious notion that the existing 2001 statute (the AUMF) (authorizing force against Al Qaeda and its associates) affords the President sufficient authority to attack ISIL as well. Responding at Just Security, Marty quite agrees (as do I) it would be better if Congress had enacted (or would enact) an ISIL-specific use of force. But Marty is skeptical there was much more President Obama could have done to secure congressional action, and also questions whether Congress’ failure to enact new authority really sets as worrisome a precedent for democratic governance or executive power as Jack and Matt think.

Jack and Matt are right to point out that Obama’s legal reliance on the 2001 AUMF to justify the use of force against in Iraq, Syria and Libya is more than a little suspect. (I’ve written previously about why I think so, e.g., here.) Marty is right to doubt whether blame for Congress’ failure to act on ISIL can fairly be placed, as Jack and Matt seem to suggest, at Obama’s doorstep. But there is plenty more to the story I think both pieces miss.

Take the contention that President Obama’s insistence that the existing 2001 AUMF gave him adequate authority to use force in Syria “took away every political incentive that the responsibility-shy Congress might have had to debate and authorize the war.” In truth it is hard to imagine President Obama’s particular position on the scope of the AUMF was more than a drop in an already overflowing bucket of reasons Congress is (and has long been) disinclined to act on matters of war. Among other things (as Theodore Lowi, among others, wrote years ago), members of Congress reasonably suspect that if a war goes well, whatever political upside there may be will redound almost entirely to the President, whereas wars gone bad yield more than enough blame to include everyone who voted for it in Congress.

Indeed, the diminishing strength of a range of political accountability checks on executive war making unfortunately long predates Obama, and extends well beyond Congress’ decided lack of ambition to assert its substantial powers over matters of war. Take the military. Where the framers imagined a military comprising only citizen-soldiers would help ensure acute popular attention to how U.S. forces would be deployed, that model had given way by the 19th century to the professional military whose job it is, at least in expertise and experience, to stand apart from the civilian population. The expectation that U.S. forces would be bolstered by state militias likewise long ago gave way to national conscription as a means of securing adequate forces in wartime, and by 1973 even this practice was abandoned as drafted armies were replaced by an all-volunteer force. (A host of factors—from the particular characteristics of those who self-select for military service to increasingly complex military technology favoring long-service professionals—have since combined to reinforce what most scholars see as a growing gap in civil–military relations that has led, among other things, to identifiable differences between civilian and military populations, and the growing ability of most of the population to pay little or no attention to the actual or most acute costs of war.) And while Congress has at least held on to its assigned task of appropriating defense funds – another constitutional requirement designed to ensure that decisions about the use of military force would be made by politically accountable representatives – the explosive growth in the use of private contractors to handle functions long performed by the military has made it easier to shield huge swaths of military-related spending from public view. (FWIW, I wrote about all this some years back in a larger piece about contemporary theories of civilian control.)

None of this is to say the Obama Administration has been ideal in promoting and protecting the effective operation of structural constitutional checks on political accountability. Quite the contrary, the secrecy surrounding U.S. drone operations for most of the Administration contributed to the problem, making it almost impossible for the people to perform any meaningful check on executive uses of force abroad, which, according to statistics released this summer by the Administration, included nearly 500 strikes resulting in the deaths of several thousand people in countries other than Afghanistan, Syria or Iraq. (Many of these strikes, we might assume, were part of the ongoing post-9/11 mission against Al Qaeda. But others, the Administration suggests, were acts of self-defense against unnamed, non-Al Qaeda threats.) The point here is rather that the problem of crippled political accountability checks on presidential uses of force is broad, deep, and longstanding. And the question of what to do about it – say, for example, bolstering the power of the courts to help fill in the blank left by Congress as a check on executive action – requires an answer that extends well beyond this particular president.

Having said all that, I am likewise not persuaded by Marty’s position that the Administration’s argument that the 2001 AUMF supports the current war against ISIL is little cause for concern. Many of the points Marty makes are essentially reasons why this interpretation of the AUMF is plausible, or at least, not so bad. We disagree about many of those points, but instead of belaboring some of the same arguments again, I’ll refer to some of our prior discussions, e.g., here and here. Marty also makes the important point – with which I generally agree – that there would be greater concern about the practical precedent Obama’s ISIL action sets if he were grounding it in Article II power, rather than in a grant of statutory authority. Whatever else one thinks of the doctrinal wisdom of treating executive practice as a “gloss” on the meaning of Article II of the Constitution, even the Rehnquist Court recognized that such practice only mattered to the extent the executive who pursued it was relying on an asserted constitutional (rather than statutory) grant of power.

For now I want to focus on the comfort Marty takes from his certainty that “[v]irtually every member of Congress approves of the use of at least as much force against ISIL … as President Obama has authorized.” I’d love to see congressional polling data on this, and would be particularly interested in how the question is worded. But let’s assume Marty is, at least at some high level of generality, right. I am not especially reassured. I’ll pass quickly over what I can already hear folks calling the quaintly formalistic argument that the Constitution and its framers contemplated that there would be a difference in legal effect between a general impression of the views of Congress; and an actual majority vote of both houses of Congress, coupled with presentment to the Commander-in-Chief (the former resulting in, at best, stimulating cocktail party conversation, the latter resulting in what we might call “law”). I can set that notion aside because the reasons such formality is required are of themselves compelling. Much the same way it is far easier to criticize the government than to govern, it is far easier for a member of Congress to make general belligerent noises about an enemy (which we have seen close up this political season can be quickly explained away) than to actually commit their personal political future to taking specific action. The framers thought the latter should be required, because only the latter would serve to place an actual, personal barrier between belligerent noises and sending other people’s kids to war. (And with some 5000 personnel now in theater, there can be little doubt we’re talking about actual American lives here, even in the age of drones.) It is likewise far easier for a member of Congress to bluster than to commit to specific language (and perforce, specific limits) on what exactly she thinks we should be doing about ISIL. There is nothing that quite focuses the mind like text on a piece of paper, and a pen to sign one’s own name to it.

Maybe the legislative debate over the ISIL war would degenerate into name-calling; surely there would be some of this. But fear of congressional childishness hardly seems sufficient reason to content oneself with the existing (equally childish and worse) calls for massive bombing. Just about once a decade (around the 1991 Gulf War, and even around 2001), at least some members of Congress have managed to have some kind of serious conversation about war. Would that Congress would avail itself of the opportunity this time.