White House Relies on 2002 Iraq Authorization—But What’s the Theory?

The New York Times’ Charlie Savage reports that the White House is relying not only on the 2001 authorization to use military force (the Sept 11th AUMF) but also the 2002 authorization to use military force (the Iraq AUMF).

The operative language in the 2002 AUMF authorizes the President to “defend the national security of the United States against the continuing threat posed by Iraq.”

I am quoted in the NYT calling the application of the Iraq AUMF “a stretch.” For a more detailed explanation of how I reach that conclusion, see the post on the 2002 AUMF that Jennifer Daskal, Steve Vladeck, and I wrote back in June.

In that post, we rejected the implausible reading of the statute by Jack Goldsmith, who claimed the 2002 AUMF “almost certainly” authorizes the use of force for any threat to the United States arising out of the country of Iraq. (Jack doubles down this morning saying that this “obvious basis” for applying the 2002 AUMF is validated by the NYT story.)

But is that the administration’s theory – that the 2002 AUMF authorizes the use of force so long as the actors or threats arise from Iraq? If so, here’s one of the points that Jen, Steve, and I made to illustrate the problem with it:

“Now imagine that a Palestinian terrorist group operated a training camp in some remote region of Iraq in 2002, and President Bush decided to use the 2002 AUMF’s authority to start a non-international armed conflict with that terrorist organization. That is clearly not what Congress had in mind. And taking such action—against a different enemy, a different threat, and a different form of armed conflict—would surely violate the plain language of the 2002 AUMF (not to mention the deeper democratic principles at stake).”

It seems even more of a stretch to apply the 2002 AUMF on Jack’s theory when the President and senior officials repeatedly claim ISIL does not pose a current threat to the United States.

The NYT links to the full text of a statement by a senior official, which the Times says “describ[es] the Obama administration’s theory.” However, one thing that is conspicuously absent in the official’s statement: a theory.

Indeed, the statement is long on the explanation of why the 2001 AUMF applies to ISIL and simply states the conclusion, without explanation, that the 2002 AUMF applies.

Here’s a theory, which is consistent with Savage’s analysis:

The 2002 AUMF authorized the White House at the time to invade Iraq. When Al Qaeda of Iraq (AQI) emerged to destabilize Iraq, nobody doubted that the 2002 AUMF authorized the administration to fight AQI as an incident of the intervention. The fact that AQI later changed its name to ISIS is a semantic, and we now know its threat to Iraq never really went away.

Two inconvenient facts that get in the way of the White House using that theory:

First, the President long ago declared the war in Iraq over. Second, as the National Security spokesperson Caitlin Hayden stated back in June, “the Administration supports the repeal of the Iraq AUMF since it is no longer used for any U.S. Government activities” (my emphasis added). You might have thought that meant the cessation and discontinuation of hostilities. In other words, this is a new war with ISIL, not the old war with AQI/ISIL.

By way of example, as Marty Lederman wrote in the context of analyzing the application of the 2001 AUMF: “To use an extreme analogy: If Germany were today to start attacking U.S. persons, no one would think the December 11, 1941 Declaration of War would authorize the President to use extensive, prolonged force in response.”

Charlie Savage wrote: “Legal specialists said the validity of the claim that the Iraq authorization covers ISIS will depend on whether the bombing is a resumption of the old war or the start of a new one.”

I agree. So what exactly is the administration’s theory? 

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About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016) Follow him on Twitter @rgoodlaw.