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.