Don’t take the AUMF bait

After carrying out more than 2,000 airstrikes against almost 5,000 targets in two countries, President Barack Obama sent a draft authorization for the use of military force against the Islamic State in Iraq and the Levant (ISL) to Congress on February 11, 2015. It was immediately clear that, as written, the draft will satisfy no one. Sen. John McCain (R-Ariz.) complained that the prohibition of “enduring ground combat operations” would unconstitutionally constrain the president’s ability to deal with ISIL. Orrin Hatch (R-Utah) called the proposal “utterly stupid” for the same reason. Rep. Chris Van Hollen (D-Md.) argued that the lack of geographic restrictions and the inclusions of “associated persons or forces” amounted to a blank check for war that should not be granted to the president. And a piece in The Daily Beast called the draft AUMF “BS,” quoting an anonymous defense official as saying “we don’t need a new AUMF to do our jobs”

Indeed, the AUMF as proposed by President Obama is essentially unnecessary.  The president has repeatedly said that he has sufficient authority to conduct military operations against ISIL under his inherent powers as commander-in-chief of the armed forces as well as pursuant to the 2001 AUMF passed in the wake of September 11. The proposal before Congress repeals the 2002 AUMF that authorized military operations against Iraq but pointedly does not mention the 2001 version, meaning that even if Congress refuses to authorize force, the president would almost certainly claim that he still has legal authority. The proposal purports to bar “enduring offensive ground combat operations” but leaves the business of defining those to the president. Furthermore, as Jack Goldsmith, former head of the Office of Legal Counsel under President George W. Bush argues, a prohibition on ground operations in one AUMF is meaningless if the president can simply use an earlier authorization to justify sending American forces into combat. Finally, the inclusion of “associated persons or forces” couches vast power in the president, as he has used similar language in the 2001 AUMF to expand the scope of a document intended to authorize force against al Qaeda to cover ISIL, a force that is engaged in a fierce rivalry with al Qaeda. Given that it is the president alone who determines who and what counts as an associated force this language could easily be used to expand the conflict far beyond the current scope in Syria and Iraq.

{mosads}Even if Congress amends the proposal to include real limitations or goes so far as to refuse to pass any authorization, President Obama will certainly continue operations against ISIL under claims of authority from Article II and the 2001 AUMF. As history bears out, the president will conduct limited military operations with or without authorization from Congress. Not once has Congress managed to stop the president from using force—not in Korea, not in Vietnam, not in Kosovo, and not in Iraq.

Congressional interest in authorizing the use of military force by the president rests in the Article I commitment of the power to “declare war” to Congress. It is assumed by many that this power means that congressional approval is needed for each and every use of force. But this is not what the Declare War clause means. Rather, it is a mechanism for Congress to prevent the president from seizing domestic legislative powers whenever the nation’s armed forces are committed to battle. With a declaration of war, as during the world wars, the president can seize domestic industries, censor the press, and even intern American citizens on unfounded suspicions that they might be spying for the enemy. Without a declaration of war, a president cannot force striking steel workers back to their jobs, even when their strike threatens the supply of war materiel, as President Truman learned during the Korean War.

So what is Congress to do? Congress would be best served if it can get past its obsession with the use of military force by the president and spend its time dealing with other issues that are more relevant to the lives of the American people as well as to its own legislative responsibilities. The main job of Congress is to define and protect the legislative status and rights of American citizens. Congress could, for example, revisit the question of warrantless surveillance by the National Security Agency instead of trusting in the courts to define what does and does not violate the Fourth Amendment. Or it could clearly define and prohibit coercive interrogation techniques that amount to torture instead of relying on a presidential executive order that can be altered and revoked at any time. Time spent ineffectively debating the use of force is time not used in more meaningful activity. Congress should not take the bait offered by President Obama in this AUMF.

Weinberger is an associate professor in the Department of Politics & Government at the University of Puget Sound in Tacoma, Wash. His work on congressional-executive war powers includes several articles and the book Restoring the Balance: War Powers in an Age of Terror.