News that the United States has sent its first — albeit “fewer than 50” — troops to fight ISIS in Syria highlights once again the need for a new authorization to use military force to put this conflict on solid, domestic law footing. To be clear, the legal arguments for and against the deployment are no different than those made for drone strikes in Syria. To the extent one accepts the administration’s theory that strikes in Syria are authorized pursuant to the 2001 and 2002 AUMFs, then the use of Special Operations troops to assist and advise forces fighting ISIS appears justified as well. And the same international law questions remain irrespective of whether we are talking about drone strikes or an advise and assist mission involving forces on the ground.
That said, the fact that the United States is now embarking on what appears to be an expanded mission in Syria — one that may increasingly involve the loss of American lives — highlights the need for democratic debate and discussion. America is now waging a war in Syria against a group that did not even exist in 2001, based in large part on a 14-year old authorization to use force against those responsible for the September 2001 attacks. The statute is being used in ways that bear no resemblance to what Congress in 2001 thought it was authorizing, or to any English reader of the plain text. This is is an affront to Founders’ careful allocation of war powers between Congress and the President.
To be sure, Congress is not likely to curtail the use of force against ISIS in Syria were it to enact a new AUMF; if anything it would likely authorize the President to do a whole lot more. But the fact that the reality on the ground will likely be the same with or without a new AUMF misses the key point. There is value and purpose to the fact of democratic engagement and debate about the decision to engage in armed conflict, even if the result is largely the same. The lack of congressional involvement also sets a precedent that has disturbing implications for the future. Today, the President may be relying on a 14-year old AUMF to do what the majority of Congress would support; a future president may stretch this — or other — war authorizations in ways that are not so widely accepted. Congress could of course (and hopefully would) weigh in if that happens. But as everyone knows, it is a lot harder to extricate oneself from conflict once having jumped in; the Founders seemed to understand this when they gave Congress war authorizing — rather than simply providing mid-conflict veto — powers.