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The AUMF Draft Notes – President Promises to Eat His Broccoli

For months, national security law experts have quietly and notsoquietly complained that the President’s legal rationale to conduct operations against the Islamic State was rather flimsy.  Based largely on an “outdated” 2001 AUMF, the President claimed the authority to conduct operations against ISIL, an organization that had publicly split from al Qaeda.  So naturally, these critics were overjoyed when the President last week sent Congress a proposed draft for a new AUMF that specifically targets the Islamic State.   Well, maybe not so much.

The old AUMF gave the president broad powers to use “all necessary and appropriate force against those nations, organizations, or persons planned, authorized, committed, or aided the terrorist attacks.”   The administration argued, perhaps less than convincingly, that – notwithstanding the open split with al Qaeda in 2014 – ISIL was the logical successor to al Qaeda and therefore within the scope of the 2001 AUMF.

The new (draft) AUMF, limits the President to conducting operations against ISIL and associated persons and forces.  The President’s draft proposal contains a sunset clause (three years) and prohibits “enduring offensive ground operations.”

The President, imposing remarkable self-control, is like that kid in the candy shop who says he doesn’t want candy, only spinach. What’s not to like?

Well, for starters, Harvard University professor Jacob Goldsmith thinks the President’s self-imposed limitations are a bunch of baloney.  As long as the 2001 AUMF remains in force, the President is choosing to retain the legal authority to conduct large combat operations from now until eternity – provided of course these operations comply with International Law. See Hamdi v. Rumsfeld, U.S. at 521. (“We understand Congress’ grant of authority for the use of “necessary and appropriate force” . . . is based on longstanding law-of-war principles.”)

What really irks Professor Goldsmith and others, is that the President did not sunset the old AUMF. Turns out that kid in the candy shop has another (unlimited) source of sweets.

The President also took care to rectify an issue with the old AUMF. The 2001 authorization did not explicitly define the term “associated forces”; in fact, the old AUMF did not even include the term “associated forces,” yet the concept of associated forces has allowed operations against affiliates in Yemen, Pakistan, Somalia, and possibly even places such as Mali and the Philippines.  This President not only defines the “associated forces”, but does so in a way that affirms his interpretation of the term:

“In this joint resolution, 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.”

Do you see what the President did there?  If Congress signs on to this AUMF,” they will be explicitly affirming the President’s definition of “associated forces,” a definition which, when applied to al Qaeda would almost certainly include ISIL.

Okay, so the President’s proposed AUMF does not limit executive power in any meaningful way, and actually explicitly endorses a broad definition of “associated forces.”  Conservative hawks such as John Yoo, former Deputy Assistant Attorney General, must be salivating.  Nope, wrong again.  Instead of celebrating the new AUMF, Mr. Yoo recently authored a blistering opinion in the National Review that excoriates the President for imposing arbitrary timelines and restrictions.

What’s missing from both the conservative and liberal legal critiques is an analysis of the subtle politics at play.  Yoo misses the point.  By restricting (on paper) the President’s ability to wage war, he potentially strengthens political support for the war.  Obama might even get a few anti-war Democrats behind this idea.  On the flip side, Professor Goldsmith likewise misses a key point.  With a new authorization in place, Congress will be free to do away with the old one – that is if Congress really does want to assert its war powers authority, something we have not seen in quite some time.


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