Dear Congress: I humbly request the authority to do whatever the hell I want even though I already have the authority to do it anyway. Love, Barack.
Yes, I know, the White House just submitted a shiny new draft Authorization for the use of Military Force to Congress. Try not to get too excited about this.
I know — it’s hard to stay calm. Lawyers and policy wonks alike salivate over these things, fondly known as AUMFs. Even the New York Times couldn’t resist some breathless coverage of this latest AUMF proposal, which focuses on the use of force against ISIL, a.k.a. ISIS, a.k.a. IS, a.k.a. Daesh, a.k.a. the most ostentatiously brutal armed group currently operating in the Levant (though not the most lethal! Syria’s Bashar al-Assad still wins that prize. But Assad is so, so, 2013).
I’ll let you in on a little secret: notwithstanding the word “authorize,” the existence or non-existence of a new AUMF will have essentially zero effect on whether the president feels empowered to bring force against IS or anyone else.
You may have noticed that the United States is already using military force against IS. In fact, we’ve been dropping bombs on IS for some six months now, despite the lack of an IS-specific AUMF from Congress (and despite the lack of evidence that all this bomb-dropping is achieving anything useful). To the White House, unambiguous congressional authorization to use force is apparently something every well-mannered president naturally desires, but not something he needs. As President Obama put it in a September 11, 2014, speech, “I have the authority to address the threat from ISIL … but I welcome congressional support.”
That’s sweet of him to say. Granted, the framers of the Constitution are probably turning over in their graves, since it gives Congress, not the president, the power to declare war. But declaring war is so 1940s: most modern presidents have taken the convenient view that congressional authorizations are more or less optional. To President Obama, military action against IS — or anyone else, for that matter — can be undertaken “pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.”
Not a fan of inherent executive powers? President Obama would like you to know that in any case, “existing statutes provide me with the authority I need” to use force against IS. That’s a quote from his Feb. 11 letter transmitting the proposed anti-IS AUMF to Congress.
By “existing statutes,” the president is presumably referring to the 2001 AUMF against those responsible for the 9/11 attacks, and/or the 2002 AUMF against Saddam Hussein’s Iraq, and/or some mystical combination of the two. True, neither of these two prior AUMFs mentions IS, which did not exist at the time and is currently an ideological enemy of al Qaeda. But AUMFs, like constitutional rights, apparently have penumbras and emanations, though only those employed by the executive branch have the psychic powers to detect them.
Oh, what a tangled AUMF we weave
Not that President Obama likes those existing statutes that give him all the authority he needs! On the contrary, he has repeatedly declared his dismay over the 2001 and 2002 AUMFs. His new draft anti-IS AUMF would, if passed into law, repeal the 2002 AUMF. He says he wants the 2001 AUMF to go away, too. Indeed, he is “committed to working with the Congress and the American people to refine, and ultimately repeal, the 2001 AUMF,” he wrote in his Feb. 11 letter to Congress.
Let’s take stock of the varying White House claims about the use of force:
- No congressional authorization is required for the use of force against IS, since the president already has
the inherent constitutional power to use force whenever he darn well pleases;
- And/but, the 2001 AUMF and 2002 AUMF already give him any needed anti-IS authorities anyway;
- And/but, the 2001 AUMF is flawed since it risks “keeping America on a perpetual wartime footing,” as Obama explained in 2013. “Unless we discipline our thinking, our definitions, our actions, we may be drawn into more wars we don’t need to fight, or continue to grant Presidents unbound powers…. So I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate. And I will not sign laws designed to expand this mandate further…”
- …unless those laws expand this mandate further by adding express authorization to use force against IS! Which is why the president just sent an IS-specific draft AUMF to Congress…
- …even though he doesn’t need a new IS-specific congressional AUMF, because — see numbers 2 and 3 above — he already has the authority to use force under the overly broad 2001 AUMF he wants to repeal;
- And because — see number 1, above — he already has the inherent power to use force whenever he darn well pleases.
If all this leaves you confused, you’re in good company. Intense but largely meaningless debate is already swirling around the new draft AUMF’s provisions and omissions.
Many Democrats don’t like it, for instance, because it lacks any geographic limitations, contains a rather squishy definition of “associated persons or forces” against whom force may be used, and offers an even squishier reference to the use of ground troops (the draft would expressly “not authorize” the use of the United States armed forces in “enduring offensive ground combat operations,” a term that Democratic Sen. Barbara Mikulski calls “vague” and “foggy.”) Democratic critics find the new draft “too broad” and “open-ended” — an invitation to further expand the use of force.
Meanwhile, many Republicans dislike the draft AUMF for the opposite reason: it contains a three-year sunset provision, and its explicit non-authorization of “enduring offensive ground combat operations” bothers those who think such language ties the president’s hands. It would “harm … the war effort” to pass “an AUMF that restricts our ability to win and destroy ISIL,” Republican Sen. Lindsay Graham warns.
As I said, let’s not get so excited. We can parse the draft AUMF’s language until we’re blue in the face, but since the president has already informed us that this new AUMF is purely symbolic anyway, why bother?
Since Obama regards a new AUMF as a mere courtesy — a “welcome” but symbolic affirmation of his existing inherent powers — there’s no reason for Democrats to worry about overly broad authorizing language. For the same reason, there’s no need for the GOP to worry about overly restrictive language. Remember: the 2001 AUMF only authorized force against those responsible for 9/11, and only “in order to prevent any future acts of international terrorism against the United States by such … organizations.” Any president who asserts that this language also authorizes the use of force, 14 years later, against an organization that didn’t exist in 2001, had nothing to do with the 9/11 attacks, and is now fighting inside Syria against the very organization that planned the 9/11 attacks, is a president who is not going to let the small matter of restrictive language bother him.
Making Orwell blush
For 14 years, Congress, the courts, and the American people let two successive presidents get away with legal interpretations that would have made George Orwell blush. Don’t expect this to change with a new, IS-specific AUMF. To quote a 1944 speech by the famous judge Learned Hand, we “rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.”
The new draft AUMF is important in only one respect. By sending it to Capitol Hill, President Obama is forcing Congress — and, by extension, the media and the American people — to grapple with some of the unpleasant questions we often prefer to ignore: Why are we using force against IS? For what reason, and to what end? Is it effective? Should we be doing more? Should we be doing less? Is this what we want? Is this what the United States needs?
It forces us, in other words, to consider the dreaded question of strategy. And for this, I give President Obama a great deal of credit: he could have opted to coast along without pushing Congress to engage in such discussions. Instead, he stuck his head into the lion’s den. Good for him.
Debating a new IS-specific AUMF also gives Congress an opportunity to return the favor. While a new AUMF’s restrictions (or lack thereof) on the use of force may make little practical difference, tough and detailed reporting requirements could force the executive branch to engage in a more serious public effort to articulate our military goals and evaluate our progress.
Post-9/11 U.S. military action has often seemed unmoored from any coherent strategic objectives: drone strikes, for instance, have arguably been counterproductive, perhaps inspiring rather than preventing violence against the United States. Similarly, current U.S. military action against IS seems oddly detached from any long-term vision of the region’s future: do strikes against the Islamic State end up helping Bashar al-Assad? Al Qaeda? Iran? Does any of this make sense? President Obama says the goal is to “degrade and defeat” IS (two different things!) — but what then?
Toward a less useless AUMF
If lawmakers pass a new AUMF, it should contain robust requirements for public accountability. It should clearly articulate the short and long-term objectives for which force is authorized, require the president to develop metrics for evaluating progress towards those objectives, mandate regular reports to Congress and the public on the costs and benefits of specific actions taken in pursuit of those objectives, and enforce a regular reevaluation of strategic objectives and methods.
The White House can always find a basis for ignoring congressional efforts to assert direct control over the use of force, but since reporting requirements don’t go to the heart of executive power, they are in some ways tougher to evade. “Inherent powers” offer a convenient excuse for using force without congressional authorization, but they don’t offer as persuasive an excuse for ignoring reporting requirements.
Whether you’re on the right or the left, if you care about ensuring the responsible and effective use of U.S. military power, you should focus less on the permissive or restrictive language in any proposed new AUMF, and more on making sure a new AUMF contains tough and specific reporting requirements. Well-crafted reporting requirements can force an ongoing national debate about strategy — and maybe, just maybe, help us bring the spirit of liberty back into our collective hearts.
The rest is just Kabuki theater.
Chip Somodevilla / Getty Images News