If Congress authorizes the President to wage war against an enemy (e.g., Al Qaeda), can the President also wage war against co-belligerents of that enemy (e.g., Al Qaeda of the Arabian Peninsula) without returning to Congress for additional authorization? That question is relevant to interpretation of the 2001 AUMF. It is also relevant to the design of a new AUMF against ISIL.
What has been the historic role of Congress and the President in such situations prior to 9/11? What should we expect from the standpoint of democratic accountability?
I. The popular account of Vichy France’s co-belligerency
In support of the view that the President does not need affirmative congressional authorization to use force against a co-belligerent, commentators hold up the example of Vichy France in World War II. According to a popular account, Congress authorized the President to wage war against Germany, and the President later fought Vichy France—as a co-belligerent of Germany—without ever obtaining specific congressional approval against Vichy.
This idea originated in a 2005 article in the Harvard Law Review by Curt Bradley and Jack Goldsmith. The authors presented the idea in a single paragraph, which is worth quoting in full:
“Consistent with the standard view that wartime delegations to the President should be broadly construed, presidents in prior armed conflicts have exercised significant discretion in using force against entities other than those specifically named in the congressional authorization of force when those entities had a nexus to the named enemy. A good example is the U.S. military operation in World War II against Vichy France. In World War II, Congress declared war and authorized force against Germany, Italy, Japan, Hungary, Bulgaria, and Romania. As the war progressed, the Allies determined that Vichy France-controlled North Africa was a key strategic target in their plans to retake Europe and defeat Germany. The Vichy France government had a loose alliance with Germany, was in various ways under German influence, and engaged in several battles with the United States’s ally, Great Britain. Although France was not specifically included in the congressional war declaration or authorization, the United States and its allies attacked and defeated the military forces of Vichy France in French North Africa, without legal controversy.”
On this basis, Bradley and Goldsmith state that “the  AUMF should—cconsistent with … presidential practice in prior wars, and with standard delegation principles—extend to terrorist organizations that are functional co-belligerents of al Qaeda.” A federal court explicitly relied on Bradley and Goldsmith’s example of “the use of military force against Vichy France, a co-belligerent of Germany, in World War II” as “historical practice in the United States;” the court thus held that “the government has the authority to detain members of ‘associated forces’ as long as those forces would be considered co-belligerents under the law of war” (Hamlily v. Obama (2009)). The Obama administration subsequently relied on Bradley and Goldsmith’s article for the proposition that the President used force without congressional authorization against Vichy France “because it was allied with Germany and engaged in hostilities against Britain.”
Other scholars have followed suit. Citing Bradley and Goldsmith, Rebecca Ingber writes: “An archetypal example of co-belligerency is the entrance of Vichy France into the conflict alongside Germany in World War II. The U.S. President did not need to seek additional authorization to use force against this new party as it was considered a co-belligerent of Germany” (emphasis added). Oona Hathaway writes: “The regularly cited example of the United States’ past practice in targeting co-belligerents against whom it did not originally declare war is Vichy France” (emphasis added) (also David Mortlock: 2010).
II. Debunking the Vichy France model
Vichy France should not count as a case of the President’s waging war against a co-belligerent without specific congressional authorization. There are four problems with the Bradley and Goldsmith line of analysis:
1. The United States conducted a surprise landing in North Africa in November 1942 (Operation Torch)—there was no time and these were not the conditions for obtaining prior congressional authorization.
2. A cease-fire was reached within three days—also not the type of conditions conducive to obtaining congressional authorization for waging war.
3. Within a few days of the US landing, “unoccupied” France ceased to exist: Germany crossed the demarcation line and largely absorbed Vichy France.
4. Most important of all, the United States considered Vichy a “neutral” not a co-belligerent of Germany. In Operation Torch, the United States even coordinated with the head of Vichy forces in North Africa, Admiral François Darlan. Shortly before the landing, a senior Vichy commander in Algiers (General Charles Mast) had also notified the Americans that he wanted to discuss how the Allies might “gain entry practically without firing a shot.” He later met with US Major General Mark Clark. Admiral Darlan agreed to order his soldiers to cease firing on Allied forces once they approached the beaches. Soon after the US landing, Darlan completely aligned his forces with the Allies in fighting Germany and Italy.
Bradley and Goldsmith write that prior to Operation Torch, Vichy France had engaged in battles with US ally, Britain. One should not draw the wrong inference from that fact. Indeed, throughout that period the US not only formally considered Vichy France “neutral,” but also maintained normal diplomatic relations (caveat: the U.S recalled Ambassador Leahy and replaced him with a charge d’affaires in mid-1942). [And notably even in the planning of Operation Torch, it was determined that the US would lead the operation so as to arrive in the right spirit; as an example, FDR cabled Churchill that an initial landing by US forces alone “offers a real chance that there would be no French resistance or only a token resistance.”]
It is even dubious to describe Vichy France being in an “alliance” with Germany. France and Germany entered an armistice agreement, which ended hostilities between the two without actually establishing peace between them. The armistice maintained Vichy’s formal neutrality between Axis and Allied powers. The armistice also involved the complete demobilization of remaining French armed forces; and Germany continued to hold French nationals as POWs—none of which conjures the imagery of a military alliance or co-belligerence.
President Roosevelt’s letter to Vichy’s leader Philippe Pétain explained that Operation Torch was conducted as a preemptive action against Germany and Italy in aid of France, and invited Pétain to accept the landing on that basis:
“I have, therefore, decided to dispatch to North Africa powerful American armed forces to cooperate with the governing agencies of Algeria, Tunisia and Morocco in repelling this latest act in the long litany of German and Italian international crime.
These indomitable American forces are equipped with massive and adequate weapons of modern warfare which will be available for your compatriots in North Africa in our mutual fight against the common enemy.
I am making all of this clear to the French Authorities in North Africa, and I am calling on them for their cooperation in repelling Axis threats. My clear purpose is to support and aid the French Authorities and their administrations.
That is the immediate aim of these American armies.”
(Caveat: Pétain did not accept those grounds.)
In sum, the American landing in North Africa in November 1942 cannot count as a precedent for military action against a hostile entity—certainly not in the way that Bradley and Goldsmith, the Obama administration, the DC federal district court, and others contend. In US practice, Operation Torch involved such a unique a set of circumstances (the surprise landing, the agreement with the Vichy forces, the quick cease-fire, etc.); and Vichy France was very far from being Germany’s co-belligerent. This historic case surely does not provide a well-founded basis for the claim that the President can use force against a co-belligerent without congressional authorization. Since Congress declared war and authorized force against each of Germany’s actual co-belligerents, the historical patterns of World War II serve more to undermine Bradley and Goldsmith’s line of analysis than support it.
I am grateful to Michael Farbiarz, Isabel Hull, Philip Nord, and Robert Paxton for advice on this essay, and Nimrod Karin for excellent research assistance and advice.