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Democracy’s Failure

A year ago, President Obama gave a major counterterrorism speech in which he promised to “refine, and ultimately repeal” the 2001 AUMF. Yesterday, his administration announced that it was relying on the 2001 AUMF to launch offensive attacks against ISIL.

The administration seems to be relying on one of two equally implausible theories in support: (i) The administration has long argued that the 2001 AUMF covers not just al Qaeda and the Taliban, as the entities responsible for September 11th attacks, but also their “associated forces.” Associated forces are now being re-defined as those organized armed groups that at some point joined al Qaeda or the Taliban in their fight against the United States, even if they joined after the September 11th attacks took place, even if they didn’t exist on September 11, 2001, and even if they have since formally split from al Qaeda or the Taliban, as ISIL did last year. I share the views of our friends Ben, Bobby, and Wells at Lawfare that this is, to say it mildly, a “stretch.”

Or (ii), as Steve suggested, ISIS isn’t just a former associate of al Qaeda, it is al Qaeda, i.e., it’s al Qaeda’s targetable heir. In other words, despite President Obama’s assertion that al Qaeda core has been “decimated,” it has actually been reincarnated in the form of ISIS, and is therefore targetable under the 2001 AUMF. In some ways this is even more disturbing that the first theory: the 2001 AUMF is being re-interpreted to cover the successor groups to those who attacked us, and perhaps their associated forces as well.

Even before this creative feat of reinterpretation, politicians from across the aisle have been complaining that the AUMF had been stretched in ways unimaginable and unsupportable. Yet, according to the White House, it has secured bipartisan support for this approach, and by the reactions so far, this generally seems to be the case.

So how did this happen? The answer seems to be politics over law.   By all accounts, Congress did not want to vote on any authorization for conflict before the November elections. After all, it is easier not to make hard decisions. It is easier not to have to explain a potentially tough vote to constituents in the coming election. And it is much easier to criticize the President for not having a strategy than actually adopting a strategy oneself. With the exception of a few calls for Congressional action from the likes of Senator Tim Kaine, Mark Udall, and a handful of others, most members preferred to simply pass the buck.

One might argue that this is a totally sensible compromise. After all, the President is able to do what he deems necessary, Congress largely supports his action, and, by grounding his action in the guise of statutory authorization, he avoids an even grosser – and more concerning – aggrandizement of Article II authorities.

But there are at least three reasons why this ought to be of concern:

First, call me naïve, but law matters. The re-interpretation of laws in totally implausible ways shakes the principles of legality at its core.

Second, think about the future. The administration is coming dangerously close to reinterpreting the 2001 AUMF as an open-ended authorization to use force against an array of terrorist threats. What is to prevent a future administration from relying on the 2001 AUMF as a justification for a range of pre-emptive, offensive action against a future ISIS associate, without first seeking Congressional support and public buy-in? This is a back-door aggrandizement of executive power, and one that potentially cuts Congress out of future decisions to embroil the nation in offensive wars.

Third, it is a colossal failure of our democratic processes. The job of our Senators and Representative is not supposed to be easy. It is not supposed to be about securing re-election. It is supposed to be about making the very difficult and complicated decisions that the Founders entrusted to them – including the decisions about when and against whom to engage in armed conflict.  This is a responsibility that Congress should embrace, not shirk.

If anything, all of this only underscores the importance of ultimately repealing the 2001 AUMF and replacing it with time-limited, tailored authorizations targeted at the specific organizations – ISIS and perhaps AQAP – that pose the type of threat that cannot be adequately addressed through other means.  Let’s hope come November, Congress finds its spine.

About the Author

is a professor at American University Washington College of Law. You can follow her on Twitter (@jendaskal).