The Wrong (and Right) Lessons Re: Congressional Inaction on ISIL

Editors’ NoteThe following post is the fifth installment of a new feature, “Monday Reflections,” in which a different Just Security editor will take an in-depth look at the big stories from the previous week and/or a look ahead to key developments on the horizon.

Last Monday, Harold Koh wrote a lengthy analysis of the administration’s justification for strikes against ISIL, ultimately concluding that the domestic and international law justifications are “shakier and less durable than they should be,” but not “clearly illegal.”

I largely agree with Koh, both on the shakiness of the arguments and the ultimate conclusion. After all, as Koh points out, the 2001 AUMF, on which the administration relies, authorizes the use of force against groups that “the President. . . determines” meet the requisite criteria. In other words, regardless of how much one derides his theory, the ultimate question is whether the President has some plausible justification for the concededly difficult-to-accept claim that the Islamic State of Iraq and the Levant (ISIL), as the successor organization to Al Qaeda (AQ), is covered by the AUMF. (See the analysis by Ryan and Shalev Roisman on this point here and here.) And on the international side, Ryan, Ashley Deeks and I already have laid out the argument that, at least depending on the scope of the mission, there is a plausible, and in fact quite credible, justification grounded in collective self-defense.

That said, I think Koh lets the administration off the hook too easily. Koh points to Congress’s apparent request that he delay a request for Congressional authorization until after the November midterm elections. This, suggests Koh, put the President in a difficult bind, forcing him either to rely on his Article II authorities or, do as he did, and rely on existing authorities (playing what Koh aptly describes as “Find a Statue”).   Over at Lawfare, Jack Goldsmith jumps on this analysis to say, see, I told you so, Congress can’t be relied on to authorize conflict on a threat-by-threat basis; therefore we need an open-ended force authorization for precisely the kinds of threats that ISIL poses (an approach I and others have repeatedly critiqued, including here, here, and here.)

But these weren’t the only two options. The administration could have called Congress’s bluff. It certainly made life easier for Congress to delay a vote until after the November election, and it is thus not surprising – although disappointing – that the request was made.  But the President didn’t have to accept Congress’s ask. What if instead the President responded: “ISIL poses a grave and immediate threat to an ally that is requesting our assistance, poses a grave and potentially imminent threat to U.S. personnel inside Iraq, is slaughtering and beheading innocent men, women, and children in its wake – and if we don’t act now, ISIL will soon develop a safe haven for terrorists stretching across parts of Syria and Iraq. I need your authorization to extend our operations and engage in the kind of strategic campaign required to protect our ally and personnel, and ultimately defeat this dangerous enemy.” Members of Congress would no doubt have been unhappy. They may have even dragged their feet a bit, delaying the start of the mission. And perhaps Congress would have included explicit limits on the type of action taken – such as a prohibition on the use of ground troops. But does anyone really doubt that when push comes to shove, in the wake of the beheadings of two American citizens, and the national clamoring for a response, that Congress would have categorically rejected the President’s request?  After all, Congress did manage to pass the requested “train and equip” measure (Section 149 of the Continuing Appropriations Resolution, 2015) within a week of the President’s speech, thereby authorizing the Secretary of Defense to provide assistance to vetted Syrian rebel groups in order to, among other things, protect the Syrian people from ISIL, and the United States, its friends and allies “from the threats posed by terrorists in Syria.”  In other words, where the President said he needed Congress, Congress somehow found the wherewithal to act.

Now there are likely a whole host of reasons why the President wouldn’t have wanted to test this theory, including, of course, the lack of sufficient certainty.  Simply put, so long as the “Find a Statute” option existed, it wasn’t worth the fight – or the risk that Congress might delay or otherwise weaken the operation.  But the fact that he opted for the more certain way out does not mean that it was his only choice – or otherwise absolve him of responsibility for choosing the certainty of a stretched-beyond-recognition 2001 AUMF over the uncertainty of an appropriately tailored ISIL-specific authorization.

Nor does the President’s chosen course of action provide support for the kind of open-ended force authorization advocated by Goldsmith.  First, it is simply not a fair read of the record to presume, as Goldsmith suggests, that had the President  insisted on Congressional authorization as a prerequisite to expanding the campaign against ISIL, he wouldn’t have gotten exactly what he wanted.  (After all, at the time of his speech, polling indicated that some 76% of the American people supported increased air strikes.)  Moreover, to the extent that members of Congress might have asked some hard questions and/or set some limits (i.e., on the use of ground troops), that is not necessarily a bad thing.  Second, as much as the administration’s interpretation strains the meaning of now thirteen-year old AUMF, it does seem to have a limiting principle, even if it is not a particularly satisfactory one.  After all, as Koh noted, how many other groups could plausibly satisfy the administration’s splinter theory?  This is a far cry from what Goldsmith has advocated for – an open-ended force authorization that would allow future presidents to unilaterally authorize force against an array of “Islamist terrorist” and other emergent terrorist threats, thereby further concentrating war-making power in the executive, further allowing Congress to shirk its responsibilities (and accountability) even when it supports the President, and allowing the executive to bypass Congress when it does not.

As Koh argued, and I agree, come November, Congress should take the necessary steps to place the conflict on stronger domestic law footing.  It should pass a new authorization specifically focused on ISIL.  Meanwhile, the administration’s expansive and convoluted read of the 2001 AUMF highlights the importance of refining and ultimately repealing the 2001 AUMF, as the administration previously supported. 

About the Author(s)

Jennifer Daskal

Associate Professor at American University Washington College of Law Follow her on Twitter (@jendaskal).