Against the backdrop of a collapsing ceasefire in Syria, President Obama announced last week that he approved the deployment of an additional 250 special operations troops to Syria, a marked increase over the 50 troops currently “advising and assisting” local forces fighting ISIS. Jen Daskal responded to the increase in troops with an op-ed in The New York Times urging President Obama to do more to engage with Congress on a new authorization for use of military force (AUMF) during his remaining months in office. Steve Vladeck followed up, discussing the dangerous precedent being set by Congress’s failure to act in relation to the use of military force against ISIS, leaving a broadly interpreted authorization open to even broader interpretations by subsequent administrations. Daskal is right that Obama should push Congress harder — and both Daskal and Vladeck are right that Congress should step up.
But Obama should not, and need not, wait for Congress to act in order to avoid leaving an amorphous and indefinite war as his legacy. Obama should define, clarify, and formalize the parameters of the current conflicts with various terrorist organizations in an executive order or presidential memorandum before he leaves office. Obama rightly disavowed the Global War on Terror moniker when he became president and has ever since been attempting to define who the United States is at war with, where, and on what legal basis. But these boundaries are set forth in scattered court filings, congressional testimony, a White House factsheet, a draft ISIL AUMF, and over half a dozen speeches without domestic legal force (e.g., here, here, here, here, here, here, here, and here). The years of effort spent clarifying the administration’s views on the key legal and policy boundaries are at risk of being for naught if the administration does not formalize them before Obama leaves office. The administration would be wise to synthesize these efforts into a single official document that defines and clarifies the parameters of the wars Obama will leave to his successor.
Signing an order won’t stop a future president or future Congress that is hell bent on expanding the existing wars from doing so. But it will make it more difficult for either to do so without good reason and without strong public support. Clearly defining the scope of the current armed conflicts will also send an important message to allies, the American people, and civilians living in war torn areas that the United States is not engaged in a global war against all terrorists, terrorist organizations, or extremist groups. Sending this message will enhance cooperation from allies and frustrate terrorist efforts to recruit by claiming that the US is at war with Muslims everywhere. And perhaps most importantly, clearly defining the scope of war is important for upholding the rule of law and respecting human rights. The laws of armed conflict were crafted for the special circumstances of war. They allow states to follow a special set of rules that are intolerable under normal circumstances — including the use of lethal force as a first resort and detaining individuals indefinitely without charge or trial (so long as appropriate protections are in place). As then-Defense Department General Counsel Jeh Johnson warned back in 2012:
“War” must be regarded as a finite, extraordinary and unnatural state of affairs. War permits one man — if he is a “privileged belligerent,” consistent with the laws of war — to kill another. War violates the natural order of things, in which children bury their parents; in war parents bury their children … we must not accept the current conflict, and all that it entails, as the “new normal.” Peace must be regarded as the norm toward which the human race continually strives.
President Obama may not succeed in ending the wars he inherited, but he can make it crystal clear that the special rules of war apply only to operations against certain organized and armed terrorist groups engaged in fighting that meets the legal threshold of war — and he can explain to the public why using war rules for other counterterrorism efforts is counterproductive. Failure to set down firm and clear boundaries that have the force of law before passing the current wars on to the next president puts Obama at serious risk of doing just what Johnson warned against — making indefinite global war the “new normal.” Waiting for Congress to do something is not an answer.
As Daskal and Vladeck both note, Congress has shown little interest in passing a new authorization for use force against ISIS, or in updating the nearly 15-year-old authorization passed after 9/11. Despite a fairly broad consensus among experts about what an authorization should include (see here and here) and some meaningful developments in the Senate Foreign Relations Committee in 2014, Congress made little progress on the AUMF front for much of 2015 other than floating a few proposals (see here, here, and here). At the end of the year, Rep. Adam Schiff (D-Calif.) released a proposal for a consolidated AUMF that gained support from a range of national security experts outside of government (including Jack Goldsmith, Marty Lederman, and Daskal and Vladeck). But politically, the proposal went nowhere.
The best hope for a political compromise came from reports in January 2016 that House Foreign Affairs Committee ranking member Eliot Engel (D-NY) was exploring a proposal that sought to overcome the remaining obstacles to a bipartisan AUMF. At the same time, Speaker Ryan began discussions with national security leaders in the House to assess the points of contention that were standing in the way of a new authorization. Ryan reportedly tasked key committee leaders, including House Foreign Affairs Committee Chairman Ed Royce (R-Calif.), with conducting “listening sessions” to hear from committee members on a new AUMF.
Little else has happened in the interim, though late Wednesday night Rep. Garamendi (D-Calif.) offered Obama’s widely criticized (see, e.g., here, here, here, and here) ISIS AUMF as an amendment during the House Armed Services Committee markup of the National Defense Authorization Act. HASC Chairman Mac Thornberry (R-Texas) responded that he believed Congress “ought to deal with it” but that the Committee had no jurisdiction over the issue. Garamendi ultimately withdrew the amendment, saying he would offer it again when the NDAA was out of Committee and on the floor. Thornberry reiterated that Speaker Ryan himself wanted to bring an AUMF to the floor and referred back to the “listening sessions” being led by Royce.
These recent murmurings aside, Congress remains unlikely to vote on an AUMF before a new president is in the White House. But should that change, Congress should look to the “intellectual consensus” that Daskal and Ben Wittes noted emerged last year among a bipartisan group of national security experts, following “a long-term dialogue generating agreement where there used to be sharp disagreement.” According to this consensus, any new AUMF should:
- Clearly define the enemy and any “associated forces” in accordance with “recognized principles of co-belligerency”
- Include meaningful reporting requirements
- Require compliance with international law (either explicitly as in the Lawfare AUMF proposal or implicitly through the authorization of “necessary and appropriate force” as discussed in the Principles to Guide Congressional Authorization of the Continued Use of Force Against ISIL published on Just Security)
- Clarify that the authorization provides the sole source of authority to use force against ISIS, and
- Include sunset dates for both the ISIS AUMF and the 2001 AUMF
But President Obama should not wait for Congress to ensure that he leaves behind a clearly defined war. In the absence of an appropriately tailored AUMF that confines the scope of the current armed conflicts, Obama should lay down those boundaries himself. To make that happen, he needs to get started now.