White House and State Department, but not DOJ (?) Lawyers determined that the 2001 AUMF Supports Attacking ISIS?

September 18th, 2014

During his (unsuccessful) testimony before the Senate, Secretary of State John Kerry offered this explanation how the 2001 AUMF justifies the attacks against Iraq:

Sen. Menendez: “How is it that the administration now thinks it can rely upon that for legal authority?”

Secretary Kerry: “Mr. Chairman, how is it? It is because (pause) good lawyers within the White House, within the State Department, who have examined this extremely closely, have come to the conclusion across the board…” And then he began reading directly from the text of the 2001 AUMF.

Notice he did not mention the Justice Department. This may have been an unintentional omission, or it may have been an accurate statement. Let’s assume for the moment that the latter is true–that the White House and State Department signed off on this, but not the DOJ.

This is a distinct possibility, and would be keeping with previous Obama Executive Branch deliberations. Recall that as the 60-day War Powers clock was ticking in Libya, both DOJ and DOD told the President that he would need congressional authorization to continue the mission. Instead, White House Counsel and State Department Adviser Harold Koh told the President that bombing the blitz out of Libya was not “hostilities.”

There may have been a similar dynamics at play here.

This may explain why no OLC memo was released–as Bruce Ackerman and others have demanded. Because there isn’t one! Or, the OLC memo said the President could *not* rely on the 2001 AUMF, and the President disregarded that memo.

On some level I am hopeful I’m right that OLC did not provide a “yes” memo on this, and the President had to find a favorable ear in the White House or in Foggy Bottom. It would cement the integrity of the Office of Legal Counsel, that they would not sanction such a tenuous reading of the AUMF. If not, I would hope we would see some noisy resignations like that of Jack Goldsmith.

Update: I had missed this report from February about the “quiet” departure of Virginia Seitz from OLC. The article hints, very tepidly, that the Administration’s drone policy was not a “major,” (but a minor?) factor in her departure:

A law enforcement source told NPR the controversy over the use of drones against Americans in foreign lands did not play a major role in Seitz’s decision to leave government, since the Office of Legal Counsel is continuing to do legal analysis of the issue and there was no firm conclusion to which she may have objected or disagreed.

I’ve heard from people in contact with the judiciary committee that this was in fact a more significant rationale for her departure.