President Obama wants explicit legislative authorization to use military force against the Islamic State in Iraq and Syria (ISIS). The administration has sent a draft of an AUMF to Congress, which has begun hearings that could last a while.
Of course, we already are using military force against ISIS. And the president is confident that it is authorized. Last August, when he first ordered targeted airstrikes against ISIS, he wrote Congress a letter stating that the actions “are in the national security and foreign policy interests of the United States, pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.”
Nine days later, the president sent a second letter to Congress, this one regarding airstrikes to help retake the Mosul Dam, which had just been seized by ISIS. In relevant part, Obama used exactly the same language, stating that the new actions “are in the national security and foreign policy interests of the United States, pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.”
In neither letter did the president claim as authority the 2001 AUMF against al Qaeda, passed in the wake of 9/11. But the administration soon did so, thus adding statutory authority to the constitutional one.
If we sat in Congress, we’d ask why yet more authority, in the form of an ISIS-specific AUMF, is needed, especially since the military operations anticipated are essentially the same kind used against ISIS over the past eight months. We’d also see those operations the same way Obama did in his letters to Congress—duly authorized by “my constitutional authority.” As for the draft AUMF itself, we’d be especially concerned about one of its provisions.
The 2001 AUMF 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.” Obama’s draft AUMF says “the president is authorized, subject to [certain] limitations, 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,” the unstated purpose being (as Obama said in the transmittal letter) “to degrade and defeat ISIL.”
The most important difference between the two documents is that the 2001 AUMF does not subject the authorization to limitations and the proposed AUMF does. And the most important limitation is this: “The authority granted . . . does not authorize the use of the United States Armed Forces in enduring offensive ground combat operations.”
In prepared testimony before the House Armed Services Committee, University of Texas law professor Robert Chesney, a war powers scholar, fairly described the limitation as “grossly indeterminate on its face,” concluding, “If the use of ground forces are to be constrained, far more care must be taken to develop, articulate, and enshrine the boundary lines.”
That is a rather big “if” for Congress to approve, for a reason Chesney identified: “We have never before had a situation in which the United States sought to ‘defeat’ or ‘destroy’ a military enemy while Congress affirmatively forbade the commander in chief from pursuing that end with ground forces.”
That is where Obama and his party would take the country, but it is not a place we should go. To borrow words Secretary of State John Kerry spoke last year in Senate testimony, Congress should not “preemptively bind the hands of the commander in chief or our commanders in the field in responding to scenarios and contingencies that are impossible to foresee.” The limitation would raise the stakes politically against using ground forces, thus making it harder for a president to prescribe such action.
Note that if Congress doesn’t pass the limitation, Obama will remain free to forgo ground combat operations against an enemy we are trying to defeat. On the other hand, if Congress does pass it, Obama still may order boots on the ground, using his constitutional authority. We would hope, of course, that if faced with the decision to use ground troops or not, Obama would make the right one, which, ironically, could mean the one he would have forbidden by statute.
Fortunately for the country, the prospect for passage of the AUMF, as currently written, is not good: Republicans control Congress, and many of its Democratic members fall to Obama’s left on war powers issues. Even so, the constraint on presidential action in the draft AUMF is something our aspiring commanders in chief ought to address. How about you, Hillary? And you, Rand Paul?