Before the president’s ISIL speech this week, I noted that the Obama administration was reportedly considering two legal rationales for the military actions announced Wednesday night, so as not to have to seek a new legislative authorization. One used the provisions of the War Powers Resolution, and another used the 2002 resolution authorizing the use of force in Iraq. I argued that neither held up very well, especially when considering expansion of the battlefield into Syria. (For additional views, including some more favorable to the ’02 resolution’s applicability, see Dan Lamothe’s post on Checkpoint and the links therein.)
The president did claim Wednesday that “I have the authority to address the threat from ISIL” (though he did “welcome congressional support for this effort”), without specifying the source of that authority. But reports soon showed (see Charlie Savage’s early take here, confirmed first by an anonymous “senior administration official” and then by Press Secretary Josh Earnest in Thursday’s briefing) that it lay in neither the WPR nor the Iraq resolution.
Instead, they chose Door #3: reliance on the 2001 Authorization for the Use of Military Force. The AUMF, passed just a few days after the Sept. 11 attacks, says “that the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
One can see why any president would love this text. It allows him to determine not only what counts as “necessary and appropriate force” but also whom to use it on – including anyone who might have “aided” the 9/11 attackers – with the goal of preventing any future terrorist attacks. Even so, it is linked explicitly to the 9/11 attacks. And thus, it is linked to al-Qaeda. And al-Qaeda is not ISIL.
The administration says this is okay, because, well, they used to be. From our senior official: Recall “ISIL’s longstanding relationship with al-Qa’ida (AQ) and Usama bin Laden; its long history of conducting, and continued desire to conduct, attacks against U.S. persons and interests, the extensive history of U.S. combat operations against ISIL dating back to the time the group first affiliated with AQ in 2004; and ISIL’s position – supported by some individual members and factions of AQ-aligned groups – that it is the true inheritor of Usama bin Laden’s legacy.”
Or from Earnest’s briefing: “So it is the view of the… Obama administration that the 2001 AUMF continues to apply to ISIL because of their decade-long relationship with Al Qaida, their continuing ties to Al Qaida; because of their – they have continued to employ the kind of heinous tactics that they previously employed when their name was Al Qaida in Iraq. And finally, because they continue to have the same kind of ambition – aspiration that they articulated under their previous name.”
It’s fair to say early reviews of this rationale have been bad. A sampling of naysayers include Ilya Somin, Ankit Panda, Benjamin Wittes (“I find this reading extremely implausible”), Jack Goldsmith (“presidential unilateralism masquerading as implausible statutory interpretation” – though he followed up by arguing that doesn’t make it actually illegal), Robert Chesney (“Will we later hear of the AUMF applying to associated forces of this successor force?”), and Mary Ellen O’Connell (who goes farther, in arguing that attacks in Syria would be illegal under international law even if Congress approved them (unless, presumably, it declares war on Syria). Vox brings together some additional critiques. And the New York Times editorial board is so worked up that it even had to admit that a House vote on this topic (though probably not on Obamacare) could represent “the people’s consent.”
The biggest problem with the chosen rationale is that ISIL broke rather firmly with al-Qaeda, has been repudiated by it (for being too extreme, amazingly), and was not in itself associated with the 9/11 attacks. It is not an “associated force” even under the administration’s earlier definition of same. That ISILists use consistently “heinous tactics” is true, but does not, unfortunately, make them very special. And as Wittes puts it, even if one agrees that those broadly associated with al-Qaeda should be covered by the AUMF, “‘associated’ does not mean ‘not associated’ or ‘repudiated by’ or ‘broken with’ or even ‘used to be associated with.'” Chesney adds, “if a past nexus is now all that is required, the door may be opened to applying the AUMF to any situation in which members of some new entity have substantial prior ties to AQ or an AQ associated force.”
There is, in short, a six degrees of separation problem with the current rationale. Using the logic of the old game that tied actor Kevin Bacon to pretty much everyone in the world, one could probably discover AQ connections to most current and future actors with evil intent against the United States.
This is fun as a parlor game; rather more serious as a matter of checks and balances. Consider Abraham Lincoln’s discussion of the Mexican War in an 1848 letter to his former law partner:
Let me first state what I understand to be your position. It is, that if shall become necessary, to repel invasion, the President may, without violation of the Constitution, cross the line, and invade the territory of another country; and that whether such necessity exists in any given case, the President is to be the sole judge…. Allow the president to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose – and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect, after you have given him so much as you propose.
I will say that it’s probably a good sign that the president felt he needed a justification in the first place; his WPR letters to Congress merely invoked the vague wonders of Article II. But a rather better justification would be a congressional authorization. Perhaps legislators will choose to shed their cloak of invisibility (or of blame avoidance) and rise to the occasion. War may or may not be the right choice – but either way, it is one Congress needs to deliberate, and to make.