Obama's draft ISIL AUMF actually expands presidential war-making power from the current baseline

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Lawfare ?@lawfareblog 2h2 hours ago
Jack Goldsmith: "The Administration’s Hard-To-Fathom Draft AUMF" http://www.lawfareblog.com/?p=43570


____ I am very puzzled about what the administration thought it would accomplish – legally or politically – with its proposed ISIL-specific AUMF. Legally, the draft marks a non-trivial expansion of presidential authorities to use force against Islamist terrorists, contrary to the President’s oft-stated intentions. Politically, it is hard to imagine broad support for this draft on Capitol Hill.

Legal. Considered in isolation, the draft AUMF appears to be a limited one in many respects by comparison with the 2001 AUMF and many AUMFs of the past. Yes, Section 5 defines “associated persons or forces” very broadly (more broadly than I have ever seen) to mean “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” (my emphasis). And yes, unlike the 2001 AUMF, Section 2 in the draft gives the President potentially extra discretion-conferring authority to determine what force is “necessary and appropriate.” (Compare the 2001 AUMF, which authorized the President to use “all necessary and appropriate force” against the entities that “he determines” authorized, etc., the 9/11 attacks, with the draft AUMF, which authorizes the President to use force that “the President determines to be necessary and appropriate against ISIL”). But the draft contains a 3-year sunset clause, a vague limitation on the authorization for “enduring offensive ground combat operations,” and a requirement to report “specific actions taken pursuant to this authorization.” These seem like non-trivial limitations.

But the seeming-limitations evaporate when one takes into account other authorities. The President has for six months claimed that the 2001 AUMF and Article II authorize force against ISIL. Under the administration’s ISIL-specific AUMF, this prior construction remains entirely untouched. The White House draft does not propose to sunset the 2001 AUMF (as I and many, many others, including Representative Schiff, have proposed). Nor does it abrogate its prior construction of the 2001 AUMF related to ISIL. (By comparison, the draft AUMF passed by the Senate Foreign Relations Committee in December provided: “The provisions of this joint resolution pertaining to the authorization of use of force against the Islamic State of Iraq and the Levant shall supersede any preceding authorization for the use of military force.”) As a legal matter, therefore, any limitations on Congress’s authorization in the draft ISIL-specific AUMF are meaningless, since the President can simply revert to reliance on the 2001 AUMF as an independent basis of authority for any actions not authorized by the ISIL-specific AUMF. He can also rely on Article II as an independent basis for the use of force deployed in self-defense. The limits on the authorization in the ISIL-specific draft AUMF in no way qualify these independent authorities. And that means they are no limitations at all. (The ISIL-specific draft AUMF would abrogate the 2002 Iraq AUMF, which the administration has thrown in the mix as a basis for current uses of force against ISIL; but there is no reason to think that killing the 2002 AUMF would in any concrete way narrow the scope of the President’s claimed authority under the 2001 AUMF and Article II.)

This explains why the limitations in the ISIL-specific draft AUMF do not in any way limit the President’s overall authorities. But there is more. The ISIL-specific draft AUMF actually expands presidential power from the current baseline. The reason is Section 5, which defines “associated forces.” The administration has already stretched the 2001 AUMF quite a lot to apply to ISIL. But the draft AUMF would go even further, and authorize force for three years against non-Al Qaeda, non-ISIL terrorists and terrorist organizations that fight “alongside ISIL,” as well as “any closely-related successor entity” to ISIL. The administration’s draft AUMF not only failed to kill its controversial interpretation of the 2001 AUMF to extend to ISIL; it codifies the logic of that controversial interpretation to extend presidential power to use force against threats that develop beyond ISIL. I would not have much of a problem with this in theory if – a big if – there were a rigorous mechanism for publicly identifying the precise groups other than IS against which the administration would use force, and where. But the reporting requirement in the draft AUMF does not obviously require this. Whatever one thinks about the desirability of Section 5, the undeniable fact is that it is an open-ended extender of authority to use force beyond ISIL, and an expansion of congressionally sanctioned force beyond the current baseline of statutory authorities.


read more: http://www.lawfareblog.com/2015/02/the-administrations-hard-to-fathom-draft-aumf/

related:

full text of the resolution proposed by President Obama: http://www.washingtonpost.com/blogs/post-politics/wp/2015/02/11/obamas-request-for-congressional-authorization-to-fight-the-islamic-state-full-text/

Full text of President Obama’s letter to lawmakers accompanying draft war powers resolution: http://www.nydailynews.com/news/politics/obama-sends-congress-draft-war-authorization-article-1.2110734

my post, 'There no such thing as limited strikes, limited war. We’re going to find out the hard way": :http://www.democraticunderground.com/10026211061

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1. Thanks for reposting and highlighting this article. Goldsmith should be more widely read,

and is one of the few who are both part of the process and an honest player.

[KoKo]

2. Very informative post...Goldsmith article really lays out the problems

in a specific and understandable way.

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3. »