Reauthorize the AUMF: Clever strategies to limit presidential power are constitutional, but unwise

Now that the Midterms elections are in the books, it should be possible to focus once again on an unresolved issue that has generated massive angst on both sides of the political spectrum.  Can the President and the Congress get their act together in responding to the simmering threat from the Islamic State?  There should be a feeling of pessimism in the air because these forces have not yet been degraded by the initial round of fitful air strikes that the President announced with some fanfare on September 11, 2014.  He promised that we would “degrade and ultimately destroy ISIS.” He warned:  “If you threaten America, you will find no safe haven.”

Unfortunately, on the ground (or more accurately, occasionally from the air) the President has authorized some targeted attacks on key ISIS positions in Syria, but has by no means undertaken the kind of full scale offense that might put dread into the hearts of our enemies abroad.  Instead the President wants more than anything else to avoid re-immersion of United States troops in a land war in Iraq. But just as this post is written, the President has, thankfully changed course yet again this time by authorizing an additional 1,500 troops on the ground in Iraq, and asking for additional $5.6 billion in funds to fight Islamic militants throughout the Middle East. There is good reason, as Max Boot argues, to think that this down payment will be insufficient to stem the ISIS tide, which will in all likelihood require greater commitments to both the land and air campaign.

On the political front, however, the President’s new maneuvers read like a long overdue prelude to a request for broader congressional authorization to wage this war.  On this score, it is likely that the President will have to overcome a simmering hostility to expanded military activities, for much of the legal commentary has insisted on a clarification of the current legal situation—the wrong way. It is fair to say, as many like Harold Koh have urged, that Congress and the President have just not faced up to the challenges that confront them.   It seems regrettably true to say that there is an unhappy consensus that the President’s current authority for military actions against ISIS is murky at best.

Few—Bruce Ackerman is the notable exception—think that this dispute will go to litigation. Nonetheless, as a matter of wise national policy, everyone agrees that Congress and the President have to make some accommodation on this issue.  The point will doubtless not come up before the new Congress convenes this coming January, but it is not too early to think hard right now about what position should be taken.

Until the President’s recent announcement, the debate on this issue has largely be shaped by strong opponents to the use of American ground troops in Iraq.  For example House Congressional Resolution 105 sent a clear message to the President by a 370 to 40 vote that he did not have any authorization to expand the operations of the United States military in Iraq:  “The President shall not deploy or maintain United States Armed Forces in a sustained combat role in Iraq without specific statutory authorization for such use enacted after the date of the adoption of this concurrent resolution.”

Consistent with that view, Harold Koh has argued that the resolution should be used to structure the nature of American involvement.  His four point plan reads as follows:

It would (1) authorize “all necessary and appropriate force against ISIL” for eighteen months, limited geographically to Iraq and Syria and operationally to no US ground forces; (2) repeal the 2002 Iraq AUMF now and (3) repeal the 2001 al-Qaeda AUMF in eighteen months. 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.

I think that this proposal is wrong on every count.  The initial point is one that governs the distribution of authority.  It is correct to assume that Congress has real power to define the scope of Presidential power, by limiting its actions to certain theaters of war, for certain periods of time, and perhaps even by certain means.  I am not one who thinks that the President as Commander in Chief has inherent rights to deal with these matters as they arise free from congressional oversight.  There is, textually, no independent Commander in Chief Power, but there is an explicit constitutional provision for the Congress:

To make rules for the government and regulation of the land and naval forces; and To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;. . .”

These clauses are tough stuff that belie the constant, if overwrought, claim that the president has broad, nearly unfettered powers in foreign affairs.  The first of these clauses allows the Congress to regulate, comprehensively it appears, the use of our military forces.  The second makes it clear that even though the President has the power to command the militia when called into the active service of the United States, he cannot unilaterally call them up, even for the limited purposes designated in Article I.

Yet the real debate here is not over power, but over wisdom, and the proposed limiting regulations represent a wrongheaded way in which to fight a war.  The reason we have a division between the executive and legislative power is that Congress is good at setting policy but not at micromanaging it.  Dealing with a war-like situation involves making difficult judgments on a day-to-day, indeed hour-to-hour basis, whether Congress is in session or out on the campaign trail.

More concretely, there is no particular reason to think that ISIS will confine its operations to Iraq and to Syria. Indeed if this proposal were enacted into law, it would give ISIS the incentive to start fresh operations, say, in Afghanistan or Pakistan. Any decision to impose congressional handcuffs on the President removes a key element of uncertainty in our enemies who now know that they can redirect their efforts elsewhere if they so choose and escape the rigors of American military force.  The point of a resolution is to preserve the options for our military success, not to provide guidance to our enemies that makes their initiatives more effective.  The geographical limitations should go.

The proposed limitation against the use of ground troops also makes no sense. That limitation would ban the President’s recent authorization of 1,500 troops in Iraq—a number that could easily prove insufficient for the challenge at hand.  But even if we abstract from these particulars, the notion of hogtying the President on such delicate matters does not make sense as a matter of principle. Ordinary military operations require a close coordination between ground and air actions.  That will be hard to achieve if “no” American ground forces are allowed in the theater of war.  Similarly we know that many elements of the Iraqi Army cut and ran, leaving large amounts of materiel behind them, which ISIS was able to turn to its own advantage in its subsequent military adventures.  Adding American troops to local troops could transform the situation on the ground, and add a much-needed element of political stability to the region.  The decision to keep troops out could easily allow for ISIS, and other groups as yet unknown, to consolidate their power base, and to dig in so as to make air power less effective against them.  If ground forces are needed later on, because these limited measures will fail, the proposed resolution will only make matters worse.

The same arguments apply to any eighteen month limitation on this authorization of force.  ISIS now has the additional option of laying low, building up forces, and running out the clock before beginning anew.  Congress may respond at some future time, but it is hardly likely to speak with a uniform voice, as it will be tempting at that time to argue that the accumulated failures of the past eighteen months offer proof positive that we should cut our losses and run.

In truth, the difficulties that have arisen since President Obama took over in 2009 are more properly attributable to his ill-concealed haste to get out of Iraq and Afghanistan than to the earlier decision of George Bush (about which I continue to have mixed emotions, even with the benefit of hindsight) to engage in the war in the first place.  Indeed, Bush should be credited for mounting a surge that worked tolerably notwithstanding the constant derision of his political opponents, including then Senator Obama.

In stating his position, Koh then endorses the position that the president took in his 2013 address at the National Defense University, where he claimed:

Today, Osama bin Laden is dead, and so are most of his top lieutenants.  There have been no large-scale attacks on the United States, and our homeland is more secure.  Fewer of our troops are in harm’s way, and over the next 19 months they will continue to come home.  Our alliances are strong, and so is our standing in the world.  In sum, we are safer because of our efforts.

In retrospect this speech represents a high degree of naïve optimism about America’s role in world affairs.  We are not safer today, which the President’s recent announcement on the Iraq deployments implicitly acknowledges. As I have argued elsewhere, the United States does not have an exit strategy for any conflict anywhere around the globe.  The sad truth is that until we dissipate our power voluntarily, stability in international relations depends upon the preservation, not the death, of Pax Americana.

We have to be prepared to put military force on the line to broker differences between rival factions that tend to bring down an uneasy truce at countless places around the globe.  Good offices and good intentions are not enough. Presidential charm does not translate itself into successful foreign policy, but sounds like empty gestures when not backed by military force.  The death of Osama bin Laden may have closed out one chapter in our military history.  But our enemies do not remain idle, but regroup, reinvent themselves and attack yet again, just as ISIS has done.  The decision to bring home troops in accordance with a predetermined schedule only increases the uneasiness abroad, and it has contributed to the decline in American prestige and influence everywhere throughout the Middle East.

It would be a huge mistake to telegraph our punches by announcing that we seek to get off a “permanent war footing” when we face multiple threats abroad.  The difficulties we have with the current president is that he is too gun shy, not that he indulges in the reckless use of force. One piece of evidence of his inconsistent policies is that he has gone ahead with the withdrawal of still additional American troops from Afghanistan, without any real appreciation of the risks that he takes.  In these circumstances the reinstatement of a broad authorization for the use of American force against al-Qaeda, its offshoots, splinters, rivals and allies is long overdue.  It is welcome news that this all too reluctant president seeks broad authorization to use force in the Middle East should events turn out badly, as they may well do.  We all hope fervently that the use of military force will not be necessary.  But the ironic truth is that any resolution that has Congress wind down on the use of American force overseas increases the likelihood that it will be most needed when we as a nation are ill-prepared to provide it.  It is too early to tell for sure, but perhaps the President has turned the corner on his ill-conceived Middle Eastern policy. 

About the Author(s)

Richard A. Epstein

Laurence A. Tisch Professor of Law at New York University School of Law, Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, James Parker Hall Distinguished Service Professor of Law Emeritus and Senior Lecturer at the University of Chicago Follow him on Twitter (@RichardAEpstein).