For the first time in his years in office, Barack Obama yesterday asked Congress to bless a war. But in this one case, the institution of the presidency and the nation as a whole would benefit if, instead, he kept his usual distance from the Capitol. Mr. Obama’s proposal will only make defeating the Islamic State group harder, hamstring his successor in office, and diminish the presidency.
Recognizing that the Islamic State poses a threat not just “to the people and stability of Iraq, Syria, and the Middle East,” but also to U.S. national security, Mr. Obama proposed legislation that would authorize him 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.”
Members of the House and Senate may rush to approve his draft. They understandably want to support the destruction of an Islamic extremist group that controls large swaths of Syria and Iraq, attacks U.S. allies in the region, and has murdered American hostages. But Congress should find other, real ways to signal opposition to ISIS, such as increasing spending on the military that must conduct the real fight, instead of cooperating with Obama’s flawed approach to war.
At first glance, the authorization seems worthy. It places the fight against ISIS on the firmest constitutional footing by joining the president’s commander-in-chief power with Congress’s authorities over the military. As a legal scholar and, later, an adviser in the George W. Bush administration, I have argued that the president has the constitutional authority to use force abroad without a declaration of war or legislative authorization; the Framers believed that Congress would exert a check through its power over the purse. But the president enjoys the best possible position when the Constitution’s full war powers unite behind him, and when the branches of government act as one politically. Even though George W. Bush, like the presidents before him, agreed on the executive’s authority to act unilaterally, he still sought legislative authorization for the wars in Afghanistan and Iraq.
But a closer reading of the Obama proposal reveals severe flaws that undermine this purpose. First, and most glaring, the authorization will have only a three-year lifespan, after which Congress would have to pass a new law to resurrect the war. No important declaration of war or authorization to use force has ever had such a sunset, because no armed conflict will ever obey an arbitrary deadline. Even the Framers, removed by centuries from our modern battlefield with its non-state enemies and asymmetric tactics, understood this. Alexander Hamilton argued against critics of the Constitution who wanted to impose similar limits on the government’s war powers (such as forcing armies to disband every year): Because the “circumstances that endanger the safety of nations are infinite,” he wrote in Federalist 23, “no constitutional shackles can wisely be imposed on the power.”
Hamilton and our Constitution’s Framers understood that war was so unpredictable that it could not be dictated by rules beforehand. But this is exactly the course on which the White House’s Authorization for Use of Military Force (AUMF) would set the nation. It makes little sense to announce to your enemies in advance when you will stop fighting. A three-year deadline will have the same harmful effects that Obama’s arbitrary withdrawal dates in Iraq and Afghanistan did. Groups and nations opposed to the United States, such as the Taliban in Afghanistan, ISIS in Syria and Iraq, and Iran in the Middle East, will simply wait us out. Or they may employ destructive delaying tactics in the hopes that war-weariness will lead a small minority in Congress to block a reauthorization in 2018. Try to imagine that, on December 8, 1941, President Franklin D. Roosevelt had asked Congress for a declaration of war that would last only three years. It is impossible, because FDR took war seriously and understood that our enemies fight not according to our plans, but according to their own.
Other unprecedented provisions in this draft AUMF further underscore the Obama administration’s lack of seriousness in pursuing ISIS. In addition to the three-year deadline, the White House proposes that Congress prohibit the use of force “in enduring offensive ground combat operations.” This bizarre restriction has never appeared before in any declaration of war or authorization for combat operations, nor does the proposal define it. Does it prohibit the deployment of large bodies of troops, such as a whole brigade or division (which, we have informed ISIS, will be there no longer than three years)? Does it restrict the use of heavy armaments, such as M-1 Abrams tanks? Does it bar the construction of bases and military infrastructure?
Whatever it might mean, the ban on “enduring offensive ground combat operations” further violates the Hamiltonian principle against arbitrary limits on war. Suppose American commanders identify a rare opportunity to topple ISIS and bring order to Iraq and Syria, but only by deploying American ground troops ready for full combat. According to the White House proposal, the president should not have the ability to take advantage of these tactical and strategic opportunities, because they involve ground troops.
Obama makes a third grievous mistake by calling for repeal of the 2002 AUMF, which approved the war in Iraq, and, in a separate letter, promising to seek repeal of the 2001 law authorizing force against those responsible for the 9/11 attacks. Both of these laws approve the operations that Obama has already launched against al-Qaeda and ISIS around the world. The 2002 AUMF is particularly important because it permits the use of force against ISIS even if it is unconnected to al-Qaeda.
If the White House persuades Congress to adopt its proposal and repeal the 2002 Act, it will succeed in severely cramping U.S. military options. The new AUMF, for example, limits its reach to ISIS and “associated persons or forces,” which it further defines as “individuals and organizations fighting for, on behalf of, or alongside” ISIS, or “any closely-related successor entity in hostilities against the United States or its coalition partners.” This provision appears to prevent the president from using force against any other hostile actors in the Syria and Iraq conflicts, so long as they act independently of ISIS. Under the law, the United States cannot remove Bashar al-Assad from power in Damascus in favor of the Free Syrian Army and its allies, which could help end one of the root causes of instability in the region. Again, the Obama proposal suffers from a dangerous overconfidence that it can predict the measures needed for a war that has so far been defined by its unpredictability.
The final defect of the ISIS AUMF, and the one that threatens to be longest-lasting, is the harm that it would inflict on the institution of the presidency. Regardless of party, presidents have gone to Congress for legislative support not because they thought it constitutionally necessary, but because they sought political unity. Presidents from FDR to George W. Bush understood the importance of maintaining “energy in the executive,” in the words of Federalist 70 — an energy that is “essential to the protection of the community from foreign attack.” The White House’s proposal presents the unprecedented spectacle of a president who is willingly giving up his office’s national-security powers, for reasons that are difficult to understand. Maybe he wants to leave the ISIS problem as a nice parting gift for a President Hillary Clinton or Jeb Bush, who will have to fight for another AUMF in 2018 over the objections of a filibustering minority in the Senate. Or perhaps he has bought into the liberal canard that America and its presidents do more harm than good in the world with their military adventurism. Millions, in this nation and beyond, who have benefited from the historic peace and prosperity of the post–World War II world would disagree.
Obama represents a nadir in presidential power over foreign affairs (in contrast to his unconstitutional grabs for power over domestic issues) unseen since Richard M. Nixon. Members of the House and Senate may seek to take advantage of such a flawed, even self-destructive enterprise. Critics of presidential power will see an opportunity to alter the balance in Congress’s favor by imposing even further restrictions. A few will support the law in order to show a united front in foreign affairs, despite their misgivings about Obama’s weak national-security strategy. Still others may be tempted to amend the law in an attempt to save a doomed proposal.
But the better course of action is to do nothing. Even without a new AUMF, the president has constitutional authority as commander-in-chief, supported by congressional funding, to wage the conflict. Even if one had the view, as Senator Rand Paul (R., Ky.) does, that Congress had to pre-approve all wars, the 2001 and 2002 AUMFs provide sufficient legal authority to attack ISIS and any other hostile groups in Iraq. If Congress wants to send a clearer signal of American unity and resolve, it should reverse the recent blind, automatic cuts to defense spending and bring the military’s capabilities up to the demands of America’s global responsibilities. Congress would not only save Obama from his own policies, it would also preserve the powers of the presidency for times — like this one — when the nation needs them most.
— John Yoo is a law professor at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute. He is the author of Point of Attack: Preventive War, International Law, and Global Welfare.