The Corner

Why Obama’s AUMF Request Does Limit Him and Spread Responsibility for Failing against ISIS

Jack Goldsmith, a former Bush-administration lawyer who is always well worth reading on matters of national-security law, takes issue with some of the criticisms, especially by conservatives, of President Obama’s proposed authorization for the use of military force against ISIS. The AUMF doesn’t technically limit the president and isn’t technically unconstitutional, he points out. His notes on how common it is to have restrictions in a declaration of war or the related force authorization are especially useful.

But it’s worth noting that this doesn’t mean there aren’t big problems with the AUMF. NR’s editors noted, prefacing their criticisms of the limited ISIS AUMF, that it doesn’t technically limit the president, because he will still have unlimited authority under the 2001 AUMF. But Congress and the president agreeing on a limited AUMF seems like it would clearly put some political limits on the president’s ability to fight ISIS. If there’s some need to escalate the war — if the Pentagon suggests it would be necessary, for instance — President Obama will be able to say, “well, yes, I technically have the legal power to do that, but Congress made it clear what they’re comfortable doing, and they chose not to approve that.” But that wouldn’t necessarily be true. It appears that much of Congress is fine with authorizing the potential substantial use of ground forces in the event the president thinks it necessary. They therefore shouldn’t write otherwise in an authorization, even knowing it is not a legal stricture. Yet the president is asking them to do so — just as he decided to ask them for approval to strike Syria in the fall of 2013, something he could have done but wanted an excuse not to.

He is not even asking to keep the unlimited force he currently has: The White House’s letter regarding the new AUMF says Obama is “committed to working with the Congress and the American people to refine, and ultimately repeal, the 2001 AUMF,” which gave the president global authority to go after al-Qaeda. That’s a problem: Al-Qaeda still exists, and while it’s possible it is no longer a threat that the United States needs to make war on, the president and most of Congress believe it is. Asking to undo the AUMF in that situation is a disingenuous attempt to end involvement in a conflict without admitting failure.

Goldsmith defends the idea of time-limit provisions in AUMFs on the grounds that they force the president to report back on a war to the American people and Congress, requiring a useful reassessment of a conflict. That makes sense, but it’s hard to see President Obama pursuing that discussion with an eye toward good strategy rather than his instinct toward caution and his domestic political priorities.

Patrick Brennan — Patrick Brennan is a writer and policy analyst based in Washington, D.C. He was Director of Digital Content for Marco Rubio's presidential campaign, writing op-eds, policy content, and leading the ...

Most Popular

Law & the Courts

The Second(-Class) Amendment

Editor’s Note: The following is the fourth in a series of articles in which Mr. Yoo and Mr. Phillips will lay out a course of constitutional restoration, pointing out areas where the Supreme Court has driven the Constitution off its rails and the ways the current Court can put it back on track. The first entry ... Read More

The Brexit Crisis

After what seem like years of a phony war, British and European Union negotiators finally agreed on the terms of Britain’s departure from the EU earlier this week, and Theresa May announced it in the House of Commons. The deal covers more than 500 pages of legal and bureaucratic prose, and few but the ... Read More

Friends of Elmer

Do you know what scares an American outdoorsman more than a grizzly bear? Twitter. In the late summer and early autumn, the hunting world had its eyes on the courts: The Trump administration had issued new guidance that would permit the hunting of brown bears (popularly known as grizzly bears), including in ... Read More