The 2001 AUMF and the 2015 AUMF

December 10th, 2014

Jack Goldsmith offers a detailed breakdown on Secretary of State Kerry’s desired AUMF. The long and short of it, is that it is wide-ranging, applies to unnamed “associated forces,” has no clear ending date, and is not geographically limited.

While Kerry resisted the notion that the administration should send Congress a concrete AUMF proposal, he did state the four main elements of what the administration prefers in an IS AUMF: (i) authority to use force against IS andassociated forces; (ii) no geographical limitation; (iii) no ground troop limitation; and (4) a three-year time-limit on the authorization, with an exception for an “extension in the event that circumstances require it.”  Kerry was very vague on point (iv) but it sounds like he wants to maintain the Executive branch’s ability to extend the conflict beyond three years based on the President’s (as opposed to Congress’s) determination about the continuing threat posed by IS.  That does not sound like much of a time limit, and certainly not one that requires new congressional authorization after three years.


In other words, it seems just as broad as the 2001 AUMF.

What the administration appears to be seeking is an open-ended IS AUMF akin to the one that Congress gave the President for al Qaeda and affiliates in the 2001 AUMF.  In addition to the features noted above, the administration would like an “associated forces” extender but (apparently) not a reporting requirementabout covered groups or places.  This would replicate the problem under the 2001 AUMF of Congress (and the American people) not necessarily knowing who we are fighting against, or where.  It is also worth noting that Kerry envisions the proposed IS AUMF to extend very broadly geographically.  When Senator Udall asked how Kerry’s outlined AUMF would “treat groups who have pledged their allegiance to the Islamic State, including, as of December 2014, groups in Algeria, Libya, Egypt, Yemen, and Saudi Arabia?,” Kerry responded: “They should be associated forces. They fit under that category.”  All of these factors, taken together, amount to a desire for an extraordinarily broad IS AUMF.

As Goldsmith notes, this presents a stunning repudiation of the President’s NDU speech:

Pretty amazing coming from an administration whose Chief Executive said in his NDU speech 18 months ago (i) “Unless we discipline our thinking, our definitions, our actions, we may . . . continue to grant Presidents unbound powers more suited for traditional armed conflicts between nation states,” (ii) that he “look[ed] forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the [2001] AUMF’s mandate,” and (iii) that he “will not sign laws designed to expand this mandate further.”  I view of Kerry’s testimony as the final repudiation of this element of the NDU speech, and as an acknowledgment that the “Forever War” is not close to over.

Kerry also re-asserts that the 2001 AUMF is sufficient authorization:

What About the 2001 AUMF?  Kerry said a few interesting things about the 2001 AUMF.  He argued that the 2001 AUMF extends to IS because (i) IS is the same group as al Qaeda in Iraq (AQI), which the United States fought in the 2000s, (ii) AQI was part of or an “associated force” of al Qaeda, and (iii) a mere name change from AQI to IS cannot destroy the 2001 AUMF authorization.  The problem with this argument is that Kerry fails to note the organizational and other differences between AQI and IS, most notably the crucial fact that IS (unlike AQI) is not part of or associated with Al Qaeda.  He kind of made this last point, and thus contradicted himself, when he said: “We acknowledge that there is a gap in time and a sufficient differential in what we’re fighting that the American people are owed a more precise articulation that meets the current moment.”  Kerry also said that “we will support the inclusion of language in the new AUMF that will clarify that the Daish-specific AUMF rather than the 2001 AUMF is the basis for the use of military force.  And I think that will give comfort to a lot of people.”  But it shouldn’t give comfort unless Congress somehow (i) makes clear that the 2001 AUMF does not authorize force against IS, and (ii) repudiates the flexible “associated forces” rationale (or whatever it is) for IS being covered by the 2001, to make sure it is not applied to the IS AUMF to extend it to some distantly related group in the future.

Also, Goldsmith highlights the administration’s sophistry concerning the War Powers Act.

President Obama, who served on this committee for, you know, four years, and Senator Biden — then Senator Biden, now vice president — served in this committee for about — what is it? You know, 30 years, or near. Both are huge supporters of the War Powers Act, as I am. He’s lived by it, even in situations where he didn’t feel like he had to necessarily strictly set it up, he set it up. He always, you know, moved on the side of caution, and — and of — of compliance.

This simply isn’t accurate.  It is more accurate to say that the Obama administration rendered the WPR’s 60-day limit “meaningless in many important contexts when it concluded that it did not apply to the Libya action.”

Goldsmith concludes:

The President’s leadership from behind on this issue continues to astonish me.