After President Obama’s speech, a statement was released explaining that it was not Article II, but the 2001 AUMF against Al Qaeda that justified the strikes against ISIS. The blogosphere went into a tizzy dissecting that decision, explaining that ISIS isn’t part of Al Qaeda, so it can’t be covered by the 2001 AUMF.
Now, two days later, Charlie Savage reports that it’s not just the 2001 AUMF, but also the 2002 AUMF against Iraq:
The White House believes that Congress’s 2002 authorization of the Iraq war — and not just the 2001 authorization to fight Al Qaeda — provides a legal justification for President Obama’s air campaign against the Islamic State in Iraq and Syria, the Obama administration said Friday.
The White House has not issued a formal analysis of its legal thinking, but the disclosure adds to an evolving public understanding of its theory about the basis for the strikes against ISIS.
…
The White House believes that Congress’s 2002 authorization of the Iraq war — and not just the 2001 authorization to fight Al Qaeda — provides a legal justification for President Obama’s air campaign against the Islamic State in Iraq and Syria, the Obama administration said Friday.
The White House has not issued a formal analysis of its legal thinking, but the disclosure adds to an evolving public understanding of its theory about the basis for the strikes against ISIS.
That was fast. I’ll second Jack Goldsmith, who wonders whether the Obama policy team is talking to the Obama legal team:
Despite the plausibility of the administration’s position on the 2002 AUMF, the position surprises me. Just six weeks ago, at a time when the Islamic State threat in Iraq was crystal clear, National Security Advisor Susan Rice wrote a full-throated letter to the Speaker of the House asking the Congress to repeal the “outdated 2002 Authorization.” I am also surprised because all summer, in seven WPR letters, the administration relied on Article II as the basis for the use of force in Iraq, and just two days ago we were told that the basis was the 2001 AUMF.
This obviously leads one to wonder how much the policymakers are coordinating with the legal team in advance. 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. (Such combined bases of support for uses of force are not unusual – Presidents often rely on both statutory authorization and Article II when engaging in military action).
I also second Bruce Ackerman’s call for the release of the OLC memo. Was one even prepared prior to the President’s speech? Did it address all these alternate bases–2001 AUMF, 2002 AUMF, and Article II? How is it that less than 2 months ago, the Administration wanted to repeal the 2002 AUMF and now they seek to expand it? This is unnerving.
I see strong shades of Bergdahl here. Immediately after the release of the detainees without notice to Congress, everyone from Sec. Hagel on down cited Article II as the source of authority. Then, as I explain my article on Gridlock and Executive Power, the Administration quickly changed their tune, and focused on a statutory avoidance argument, that Congress wouldn’t have wanted the law to apply in these “circumstances.” This was a ridiculous argument, but even more ridiculous is how quickly they backed away from Article II when they perhaps realized that also wouldn’t work, at least by itself. Or maybe, this is similar to OLC’s memo opposing strikes in Libya, so the President got Harold Koh to find that the attacks were not “hostilities.”
I hope one day we learn from someone inside the Administration what the thought process–or lack thereof–led to this discombobulated approach to the laws of armed conflict.