Ending the Forever War is (Still) in Reach–a.k.a. How I Read the Goldsmith-Koh Exchange

Last week, Harold Koh wrote another important intervention in his efforts to help steer the United States out of “the Forever War.” That objective is to take the country eventually off a permanent war footing with respect to al-Qaeda and other terrorist organizations—an ambition the President announced in his May 2013 NDU speech.

On this occasion, Harold reflected on the President’s interpretation of the 2001 AUMF as a legal basis for fighting ISIL. Harold wrote that the President’s interpretation is “defensible,” not “clearly illegal,” and “will never be found illegal” by a court due to broad standards of judicial deference. At the same time, he called for the Administration to take steps to seek an ISIL-specific AUMF after the November elections and continue its efforts repeal both the 2001 and 2002 AUMFs.

Over at Lawfare, Jack Goldsmith pronounced that Harold’s defense of the administration’s legal position “definitively reveals the death” of the Obama administration’s ambition to end the Forever War.

I disagree. It’s a misreading of Harold’s position and the potential course we are on as a nation.

No doubt the rise of ISIL and the President’s decision to wage war against the group is a setback in ending the Forever War. Nobody in this debate disputes that fact. But Jack’s report of the death of the effort to bring the Forever War to a close is exaggerated.

As I also explain below, Jack’s using the occasion to try to inject life into the Hoover Institute proposal for an open-ended congressional authorization against “Islamist terrorist organizations” is misplaced, threatens to perpetuate the Forever War, and cannot be squared even with Jack’s other writings.

1. “Blessing” the architecture of the Forever War?

Jack wrote that Harold “blessed” the President’s “expansion-by-interpretation of the 2001 AUMF.” That account is not sufficiently nuanced. Harold also wrote that the President’s interpretation is “embarrassing” due to its inconsistencies with prior statements, plays the game of “Find the Statute,” and erects “a dangerous methodology” susceptible to abuse.”

With blessings like that, who needs curses?

But didn’t Harold nevertheless endorse the Administration’s position that the President has sufficient authority to continue to wage war against ISIL and other terrorist groups indefinitely?

First, it depends on the baseline. Many close observers had expected the White House to assert that the President has the independent authority under Article II to use force against ISIL including in Syria. In August, Harold admonished the Administration not to make that constitutional claim. He wrote in Politico, “Under U.S. law, President Obama can hardly extend a conflict with ISIL to Syria based on claims of inherent constitutional authority, when he rightly criticized the Bush administration for pursuing a ‘Global War on Terror’ based on similar sweeping claims.” And in this latest piece, Harold explained that the administration’s expansive statutory interpretation was the “least worst option” because it avoided the extraordinary arrogation of power of such an Article II claim (Marty Lederman made a similar point in an earlier post). Grounding the use of force against ISIL in an existing congressional statute, of course, also allows Congress to withdraw or limit that authority. It is another way to help terminate the Forever War.

Second, Jack’s expansive reading of the Administration’s theory of the 2001 AUMF is ill-founded, because he overlooks the theory’s limiting principles. As Marty Lederman explained in an earlier post:

Jack Goldsmith comes right out and says what others imply:  An argument that any “loose affiliation with al Qaeda brings a terrorist organization under the 2001 law,” he writes, means that “Congress has authorized the President to use force endlessly against practically any ambitious jihadist terrorist group that fights against the United States.”  If this were an accurate characterization of the Administration’s argument, Jack would be right:  such an interpretation of the AUMF would, indeed, be “unconvincing.”  The predicate of the Administration’s argument, however, appears to be that the recent ISIL attacks are not unrelated to the AQ design of 2001, but instead part and parcel of that enemy’s design:  that ISIL considers itself “the true inheritor of Usama bin Laden’s legacy”; that current AUMF authorization against it thus would have been unobjectionable had ISIL remained under Zawahiri’s control; and that therefore, as a senior Administration official explained to Charlie Savage:  “Congress could not have intended for an event like the leadership split to abrogate the authorization to act against ISIS.”  This is decidedly not an argument that applies to “any ambitious jihadist terrorist group that fights against the United States.”

Harold as well explains that “the limiting principle of this theory is factual: apart from ISIL, there are few, if any organizations that the President could plausibly determine satisfied this ‘AQ splinter’ theory.” (At the same time, Harold warns against future Presidents stretching the ‘splinter theory’ [to introduce] a dangerous methodology whereby the current and future Presidents can cite ‘factual evidence of common AQ DNA’ to declare war against a series of groups increasingly far removed from the al-Qaeda that Congress declared war against after Sept. 11, 2001.”)

2. Crossroads: ending the Forever War vs. resurrecting the GWOT

Harold also provides a roadmap for ending the Forever War despite the setback that ISIL represents. On his view, if the White House does not change course in its use of the 2001 AUMF, “this moment will unintentionally become the turning point when President Obama stopped trying to end the ‘Forever War’ and instead perpetuated the Global War on Terror.” Harold’s roadmap includes, among other measures, repealing the 2001 AUMF when conditions with al-Qaeda and its associated forces permit.

Importantly, his roadmap also suggests that the White House should work with Congress to pass an ISIL-specific authorization in which Congress limits the scope and purpose of the use of force (see also here).

But doesn’t that strategy – accepting an ISIL-specific AUMF — concede that the ambition to end the Forever War is dead and doesn’t it fly in the face of the President’s NDU speech? Not if the Administration simultaneously reaffirms its longer term goal of repealing the 2001 and 2002 AUMFs.

Here’s an irony: Jack has proposed just such an ISIL specific AUMF and apparently agreeing with Harold, Jack explained how the President could at least publicly reconcile such an AUMF with the NDU speech:

“The narrow AUMF also helps the President.  It gives his actions against IS enormous domestic legitimacy, as I explained earlier this week.  And it also helps him reconcile his current actions with past statements.  With only a little stretching and a tad of revisionist history, the President could claim that an IS AUMF is consistent with his 2013 NDU speech because it narrows presidential power.”

Strangely though, in response to Harold, Jack suggests that efforts to secure an ISIL specific authorization from Congress lacks political sense, and I take Jack to be suggesting that his Hoover proposal is the better option (see also here).

But why not try to secure an ISIL-specific congressional authorization?  Jack writes: “It is also pretty clear, finally, that Congress will not easily authorize wars on a threat-by-threat basis.”

But here’s where I can’t square Jack’s response with his other writings.

It seems premature to gauge the ability of this Congress and future Congresses to pass specific authorizations on the basis of current congressional attitudes. The existing congressional reluctance is shaped by the impending midterm elections and the fact that Congress has not been asked publicly by the President for authorization.

How easy might it be for the President to get congressional authorization? Jack has written before that a narrow ISIL-specific AUMF is even more likely to succeed. In a post entitled, “A Politically Palatable Authorization to Use Force Against IS,” he wrote:

“One way to make an IS authorization politically palatable to both the President and Congress is to make it narrow.  … Authorize force only against ISIS.”

“[A] narrow AUMF of the type described should give cover to members of Congress who don’t cherish an AUMF vote, for they can emphasize how narrow and limited the authorization is.”

But isn’t Congress too dysfunctional to give the President authorization he needs? Jack wrote last month that he doesn’t buy that argument:

“I have heard from a lot of people that the President would like to receive authorization from Congress but that Congress is too dysfunctional to give it to him.  I don’t buy it.  When the national security is threatened, Presidents who try hard enough get the support they need from Congress, even when (as is not really the case here) the use of force is controversial.”

In another post, Jack explained that “the case in theory is not hard to make.  But a mere speech from the Oval Office will not do the trick if the President wants the nation to understand the stakes and risks, and wants to get the American People truly behind the effort.  Only an extended and informed and serous national debate can do that, and such a debate can only occur if the President asks for Congress’s support.”

In yet another post, Jack wrote that the President would be essentially guaranteed success if he went to Congress: “the administration should get Congress to authorize force.  Doing so would be politically draining, but the administration would surely succeed.”

And Jack elsewhere suggested it would not even be politically draining: “One of the main reasons the President had a hard time convincing Congress to support the use of force in Syria last summer was that it was relatively difficult to explain the national interest in using such force.  Not so with the use of force against IS.  Many have described IS in recent weeks as an enormous threat to U.S. national security.  …  In this circumstance it should not take strenuous leadership or a great deal of political capital to get Congress on board.”

In his most recent post on this topic, Jack specifically advises the President to go to Congress after the midterms and “propose a draft resolution, or commit to and push one of the proposals offered by individual members of Congress (such as Representative’s Schiff’s).”

Jack’s reference to Rep. Schiff’s proposal is remarkable. In fact, that’s exactly what Harold suggested:

“Achieving a better outcome is not politically impossible. Representative Adam Schiff’s proposed AUMF, for example, would accomplish in one bill three of the four steps described above. … If the President openly backed such legislation, it would place his war with ISIL on a much firmer legal ground, while advancing his longer-term objective—announced in 2013 at the National Defense University —of taking us off a permanent war footing.”

Perhaps one effect my post might produce is to help narrow the perceived set of differences in these exchanges.  As I read it, neither Harold nor Jack wants either to “bless the architecture of the Forever War” or to resurrect the GWOT. Both believe the superior course for the President may include backing something like Rep. Schiff’s proposal, which now both authorizes force against ISIL and calls for eventual repeal of both the 2001 and 2002 AUMFs.  So why not follow that road, especially if it would provide the domestic legitimacy and sure legal foundation necessary for the sustained conflict to degrade and destroy our common enemy, ISIL? 

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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). You can follow him on Twitter @rgoodlaw.