The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Congressional sources have revealed some details of the Obama administration's proposed authorization for the use of military force against ISIS, which the president will soon submit to Congress:
Almost six months after the president began using force against the Islamic State advance in Iraq and then in Syria, the White House is ready to ask Congress for formal permission to continue the effort. Until now, the administration has maintained it has enough authority to wage war through the 2001 AUMF on al-Qaeda, the 2002 AUMF regarding Iraq and Article II of the Constitution….
In advance of the release, top White House and State Department officials have been briefing lawmakers and Congressional staffers about their proposed legislation. Two senior Congressional aides relayed the details to me.
The president's AUMF for the fight against Islamic State would restrict the use of ground troops through a prohibition on "enduring offensive ground operations," but provide several exemptions. First, all existing ground troops, including the 3,000 U.S. military personnel now on the ground in Iraq, would be explicitly excluded from the restrictions. After that, the president would be allowed to deploy new military personnel in several specific roles: advisers, special operations forces, Joint Terminal Attack Controllers to assist U.S. air strikes and Combat Search and Rescue personnel.
Under the president's proposal, the 2002 AUMF that was passed to authorize the Iraq war would be repealed, but the 2001 AUMF that allows the U.S. to fight against al-Qaeda and its associated groups would remain in place.
The new statute would authorize military action against Islamic State and its associated forces, which are defined in the text as organizations fighting alongside the jihadists and engaged in active hostilities.
The terms of the proposal seem mostly reasonable to me. In particular, I think it is justifiable to give the administration considerable flexibility in determining which forces to use, while limiting his discretion in deciding which groups to fight, so that the campaign against ISIS and its allies cannot turn into an open-ended campaign against any and all vaguely Islamist factions. The merits of the limitation on ground forces are debatable. But the draft does seem to give considerable discretion for their deployment so long as they are not engaged in "enduring offensive ground operations." What operations qualify as "enduring" is an important ambiguity that Congress and others should carefully consider.
It is also good that the administration has belatedly acknowledged (at least implicitly) that congressional authorization is in fact required, and are no longer relying on dubious arguments based on the 2001 AUMF against Al Qaeda, and the 2002 AUMF against Saddam Hussein's Iraq.
However, as I explained in my post commenting on Obama's call for an ISIS AUMF in the State of the Union, an after-the-fact AUMF does not cure the administration's unconstitutional actions in waging war without congressional authorization for some six months, nor its previous similarly unconstitutional war against Libya in 2011. More will be needed to reestablish the constitutional norm that the initiation of war requires congressional approval. As a first step, Congress should at least couple its ISIS AUMF with a resolution indicating that the president acted illegally when he failed to get authorization in advance, and emphasizing that future interventions must have such authority. Otherwise, there is a danger that courts and future executive branch officials might use the wars against ISIS and Libya as a precedent for the proposition that Congress has acquiesced to unilateral presidential initiation of war. Giving presidents the power to start wars on their own initative is both unconstitutional and likely to have dangerous consequences.
UPDATE: The administration has now formally submitted the proposal to Congress. The text, which matches the description above, is available here. The National Constitution Center summarizes the most important details here. The key sections authorize the president to "use the Armed Forces of the United States as the President determines to be necessary and appropriate against ISIL or associated persons or forces" for up to three years, with the exception of "enduring offensive ground combat operations." Section 5 states that "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." This constraint is important because it prevents the president from using the AUMF as a justification for waging war against any and all terrorist organizations of its choosing.
It is noteworthy that the resolution contains no geographic limitations. It authorizes the use of force against ISIL in Iraq, Syria, and any other country where that organization and its allies have a foothold.
Finally, the preamble contains a passage that seems intended to retroactively legalize the President's previous military actions against ISIS, stating that "the United States has taken military action against ISIL in accordance with its inherent right of individual and collective self-defense." The problem with this theory is that, at the time the President began his bombing campaign, ISIS had not attacked the United States on a scale anywhere near large enough to amount to a war. The president cannot argue that ISIS's previous actions against the United States constitute an attack large enough to count as a war against the US, unless we are willing to conclude that any hostage-taking or small-scale terrorist attack qualifies as such. Thus, the president's actions constitute the initiation of a war not authorized by Congress, and were therefore unconstitutional. Congress should not include language in the AUMF that retroactively legitimizes his illegal actions.
UPDATE #2: Michael Ramsey suggests that "the administration's request is tantamount to a concession that it does not have independent authority for the ISIS/ISIL/IS project. That's an important precedent in the right direction, even if it does not go as far as Professor Somin would like." I think that's an entirely plausible interpretation of the administration's actions. But it's not the only possible interpretation. The administration could also be seen as seeking an AUMF just to get additional political legitimacy, but without admitting that its previous military campaign against ISIS was unconstitutional. The reference to the "inherent right of individual and collective self-defense" in the preamble lends some weight to this more pessimistic interpretation of the administration's stance. However, it still remains to be seen how this episode will be understood by Congress and others.