Last week, President Obama asked Congress to grant him explicit approval for military operations against the Islamic State. Even casual observers might find the request a bit odd, since the US has been carrying out a bombing campaign against ISIS since at least last September.
Stranger still, the White House maintains that it doesn’t actually need the approval that it’s requesting. The Obama Administration, just like the Bush Administration before it, argues that the Authorization for Use of Military Force passed in the wake of the September 11 attacks grants him the legal authority to order action against ISIS – an organization that didn’t even exist until almost a decade later.
That argument hinges on a slippery concept. To simplify, the US government has maintained that the 2001 AUMF allows action not just against the perpetrators of the 9/11 attacks, but also against any ‘associated forces’. And while it isn’t unusual for legal doctrines to rest on technical language, it might surprise some readers to learn that the term “associated forces” doesn’t actually appear in the AUMF. The closest the short document comes to that is when it mentions groups that “harbored” the perpetrators or abettors of the 9/11 attacks.
That phrase has been interpreted to cover any groups, persons, or nations associated with Al-Qaeda or with groups associated with Al-Qaeda, prior to or after September 11, 2001. A class so broad that it’s hard to imagine who the US couldn’t bomb in the Middle East.
So now the President and others are asking that the 2001 AUMF be repealed and replaced with an updated authorization that’s more tailor-made for the moment. And by more tailor-made, I mean, of course, just as broad.
The White House would probably bristle at that description, and perhaps with some cause. There are, in fact, specific provisions in the proposed language that are clearly designed to not repeat the errors of the 2001 resolution. First, while the concept of “associated forces” is this time explicitly mentioned; it is also defined:
In this joint resolution, the term “associated persons or forces” means individuals and organizations fighting for, on behalf of, or alongside ISIL or any closely-related successor entity in hostilities against the United States or its coalition partners.
That’s certainly an improvement over the 2001 ‘friend of a friend’ standard. Similarly, the White House’s proposed language includes a sunset provision: the authorization is set to expire in three years.
Additionally, the resolution is clear that “the use of the United States Armed Forces in enduring offensive ground combat operations” is not authorized.
So why am I pessimistic? Well, first of all, the overwhelming response on the right seems to be that the new AUMF doesn’t go far enough. Speaker of the House John Boehner has said that it doesn’t offer enough flexibility to military commanders, there’s broad disagreement with the sunset provision, and Senator Lindsey Graham has called for 10,000 troops to be put on the ground.
In that atmosphere, and with Republican control of Congress, it’s unlikely that the White House language will be ultimately adopted. The chance that the 2001 AUMF will be repealed is effectively zero.
President Obama knows this, which is why he didn’t include the repeal of the 2001 AUMF as part of the new AUMF. Had he chosen to do that, the White House would have clearly signaled that such a repeal was a high priority for them. Instead, the White House has reinforced the kind of ambivalence that is inherent in asking for an authorization that you’re simultaneously contending you don’t need.
The challenge for the White House is that it’s trying to reassert the principle that Congress needs to authorize military action, while refusing to actually have its use of military action limited by Congress. In effect, it’s trying to help set up an oversight environment for the next President.
That President, overwhelmingly likely to be either a Republican or Hillary Clinton, will almost certainly be more hawkish than President Obama. Meanwhile, Congress remains both institutionally incapable of performing its oversight duties as well as politically and ideologically disinclined to take a decisive position on any important security matters.
The Constitution says that Congress has the power to decide when and where the country goes to war. For the past 65 years, that same Congress has colluded with the President, with the courts, and with the voting public to shirk that responsibility. It has become adept at taking the sort of votes and making the sort of statements that are designed to create the appearance that they are complying with their Constitutional mandate while they have instead ignored it.
The result is that the President now enjoys wide latitude to use force and lead the nation into foreign entanglements, as long as he has the political capital to spend. A system that was designed to ensure open-air deliberation on issues of war has been replaced by a closed-door system of whispering security intelligentsia.
Unfortunately, the public seems largely disinterested, and so the farce continues: the Congress pretends to oversee the President, and the President pretends to care.
Follow Pedro on Twitter @IamPedroA.
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