Ilya Somin takes down John Yoo’s defense of the Obama administration’s argument that the 2001 AUMF grants the president authority to go to war with ISIS:
Yoo claims that the 2001 AUMF [Authorization for Use of Military Force] authorizes preemptive and preventive attacks against any terrorist group that might threaten the United States, because it states that “The President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.” But if that passage really gave the president blanket authority to wage war against “international terrorism,” there would have been no need for the more specific authorization to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” It is a longstanding principle of legal reasoning that we should not interpret laws in such a way as to render large parts of them completely superfluous.
Yes: you read that right. John Yoo and Barack Obama are now in the same camp. But Marty Lederman defends the AUMF argument:
The Administration’s interpretation of the 2001 AUMF … avoids the need even to opine on the scope of the WPR [War Powers Resolution of 1973] and Article II, let alone to blow large holes in them. The only law that it affects is the interpretation of a single force authorization statute. And it keeps the ultimate decision-making authority in Congress’s hands. If Congress disagrees with that understanding of the 2001 AUMF, it could easily say so in the course of enacting a new, more tailored authorization statute for use of force against ISIL.
Whatever one’s views on the merits of the interpretation might be, then, there is a good case to be made that this unexpected maneuver was, at a minimum, much better than the (realistic) alternatives, and perhaps even a masterstroke that deftly threaded the needle without disregarding congressional will. Contrary to Jack Goldsmith’s reaction, then, this is not an “adventure in unilateralism [that] cements an astonishing legacy of expanding presidential war powers.” It is almost the opposite: the one available move that avoids such an expansion.
Eric Posner responds to Lederman’s contention that Congress somehow remains in control of the course of events:
This is really a political argument, not a legal argument, but it is worth noting that in Lederman’s hand it becomes a precedent that justifies the use of military force when the public and Congress “really” supports it, whether or not Congress acts officially through its voting procedures. Another loophole to be widened in future iterations. What of the claim that Congress can turn around and take away the president’s authority—the great virtue of a statutory approach? But this would mean assembling a veto-proof majority in both Houses—which is not going to happen. Indeed, the opposite is more likely to happen—as has happened before (above all, Kosovo): Congress will be constrained to “support the troops” and vote for the money they need to continue operations.
Andrew Rudalevige puts his finger on the argument’s fatal flaw:
The biggest problem with the chosen rationale is that ISIL broke rather firmly with al-Qaeda, has been repudiated by it (for being too extreme, amazingly), and was not in itself associated with the 9/11 attacks. It is not an “associated force” even under the administration’s earlier definition of same. That ISILists use consistently “heinous tactics” is true, but does not, unfortunately, make them very special. …
There is, in short, a six degrees of separation problem with the current rationale. Using the logic of the old game that tied actor Kevin Bacon to pretty much everyone in the world, one could probably discover AQ connections to most current and future actors with evil intent against the United States.
But Jack Goldsmith finds the argument troubling for another reason:
[M]y objection to the Islamic State AUMF gambit is not that it is illegal in the sense that the use of force is illegal (because Article II remains in the background). The objection is that the President who wanted to cabin the AUMF, and who had the opportunity to put the United States on a more focused and responsible legal path for fighting Islamic terrorists, has instead stretched the AUMF beyond all recognition and probably ensured that it will be the legal basis for war against Islamist terrorists for quite a while to come. (Even if Congress ultimately authorizes force, the interpretation of the AUMF for the interim period will stand as a precedent.)
I have heard from a lot of people that the President would like to receive authorization from Congress but that Congress is too dysfunctional to give it to him. I don’t buy it. When the national security is threatened, Presidents who try hard enough to get the support they need from Congress, even when (as is not really the case here) the use of force is controversial. Indeed, both of the last two uses of force for military action in Iraq – in 1990 and 2002 – were controversial and were made possible only after enormous and risky political efforts by the two Bush White Houses.
So Obama is winging it. If this goes south, as all wars in the Middle East do, we have only the emperor to hold accountable, and he’s outta here in a couple of years. Goldsmith also wonders why the administration keeps switching from one legal argument to another:
Force has been used in Iraq against ISIL for over a month, and yet in the course of a week the administration has floated three different legal theories for the strikes. In truth, it is possible that all three legal bases – Article II, the 2001 AUMF, and the 2002 AUMF – may support aspects of the operation (though I am most skeptical of the 2001 AUMF basis). Why not just say that? The administration needn’t choose, and when all three bases of support are combined, the legal case is strengthened.
The reason, I fear, is that politics and public emotion dictated this decision, and everything since has been an ad hoc attempt to justify and defend a decision that had already been made.
The Dish 