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Does Operation Inherent Resolve set a troubling constitutional precedent?: Engaging with Goldsmith and Waxman

This post is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week or looks ahead to key developments on the horizon.

As my friends Jack Goldsmith and Matt Waxman note, Saturday was the second anniversary of the President’s announcement of a “comprehensive and sustained counterterrorism strategy,” undertaken with many of our allies, “to degrade and ultimately destroy” ISIL–an operation now known as Operation Inherent Resolve.  As part of Inherent Resolve, the U.S. military is using extensive lethal force against ISIL in Iraq, Syria and, more recently, Libya, in collective defense of Iraq, France, Belgium, and other nations that ISIL has already brutally attacked.  Very few U.S. ground forces, however, are in harm’s way.

Jack and Matt do not oppose Inherent Resolve as a matter of policy.  Nevertheless, they worry about the President’s decision to initiate the operation without a further statutory authorization from Congress–what they call a “fateful” and “dramatic” decision, with potentially significant “costs to U.S. democracy.”  Jack and Matt do not quite come out and say that the President should not have done what he did–let alone that it was unlawful–but they do suggest, somewhat cryptically, that he should have “return[ed] to the Congress and the American People and “insist[ed] on a new authorization.”  (“Insisted” on it . . . or what, exactly?  More on that question below.)

I share Jack and Matt’s view–indeed, I’ve argued repeatedly on this blog–that Congress certainly should enact a new authorization, specifically tailored to Operation Inherent Resolve.  In particular, I’m keen on the proposal drafted by Representative Adam Schiff.  Enactment of the Schiff proposal, or something like it, would be ideal from a democratic governance perspective, if only because the legislature should regularly revisit the impact of its statutory authorizations to use force, and adjust such authorizations to the exigent needs of the day, which might well change over time.  Indeed, President Obama shares this basic perspective, too; I think he would enthusiastically sign the Schiff bill.

Even conceding that Congress’s recent, formal silence is far from ideal, however, I honestly don’t see why Jack and Matt (and many others) are so convinced that the failure of Congress to enact a ISIL-tailored AUMF will lead to such dramatic harms to democratic governance, or why the continuation of Inherent Resolve without a new AUMF will set a terrible, disturbing executive precedent.

In order to tease out where we might differ, I’ve compiled a list of factual, legal and policy propositions that I believe Jack and Matt and I–and President Obama–agree upon.  If those propositions do provide common ground, then perhaps it’ll be easier for us all to determine where, if anywhere, we differ, and whether, in fact, the constitutional sky is falling.

  1.  From the fall of the Hussain government in 2003 until 2011–for eight years–Presidents Bush and Obama used extensive force against ISIL (then known as al Qaeda in Iraq), because that armed group, formed in the wake of the 2003 war in Iraq, continued to use force against Iraq and thereby undermine the prospects of stability and democracy in that nation.
  2.  The 2002 AUMF did not expressly authorize those eight years worth of lethal force, but virtually everyone agreed (including, presumably, Jack and Matt) that the 2002 statute provided an implied authorization for the U.S. to use force against an armed threat to Iraq that emanated from the expressly authorized 2003 war against the former regime.  (Indeed, I don’t recall anyone arguing that the use of force against AQI for those eight years was unauthorized or unlawful.)
  3. Although the threat to Iraq from AQI/ISIL waned for a couple of years, it revived with a vengeance in 2014.
  4.  Operation Inherent Resolve does not violate international law; in particular, the use of force against ISIL in Syria does not violate Article 2(4) of the U.N. Charter, despite the absence of consent from the Assad regime, because (at a minimum) it is necessary and proportionate to the collective self-defense of Iraq — and now France and Belgium, too.  [I have argued elsewhere that if the action in Syria did put the U.S. in breach of the Charter, it would require specific congressional authorization.]
  5.  Virtually every member of Congress approves of the use of at least as much force against ISIL, in Iraq, Syria and Libya, as President Obama has authorized.  This is not, in other words, a case like the 2003 Iraq War, in which clear sides have been drawn among the members of Congress about the propriety of the armed conflict and therefore there’s some political risk in deciding which side of the line you’re on.  The entire public is well-aware that virtually all legislators support at least the level of force currently being employed against ISIL — i.e, the force that the Schiff AUMF would expressly authorize.  If there were no AUMF and then things went badly, no legislator could plausibly say to her constituents: “Well, didn’t support using force against ISIL, so don’t blame me.”  Every member’s constituency assumes that their representative supports the war–and they’re right.  The only real disputes in Congress are that some members want the President to use more force, and that some members (but not others) would prefer for Congress to limit the next President from certain uses of ground forces.  The legislative differences, in other words, would not affect President Obama’s prosecution of the war, no matter how they might be resolved.
  6. The President’s view that the 2001 and/or 2002 AUMFs authorize Operation Inherent Resolve is reasonable, albeit certainly contestable–or, at the very least, it is not dramatically different from the view, which everyone accepted for eight years, that one or both of those AUMFs authorized the use of force against ISIL/AQI from 2003-2011.  The only real dispute of statutory interpretation, in other words, is whether the temporary cessation of ISIL hostilities from 2011-2014, and/or the extension of the conflict into Syria (where we do not have host-state consent) necessitated a new statutory enactment, one that was not necessary in 2011.
  7. Article II itself would not give the President sufficient authority for Operation Inherent Resolve.  (There are some people–e.g., John Yoo, Dick Cheney, George H.W. Bush–who might disagree with this, but I don’t believe either Jack or Matt or President Obama is in that camp.  Nor am I.)  Nor has President Obama asserted an Article II authority for such an extensive and sustained operation.  Therefore this operation is not akin to what Jack and Matt refer to as the “historical pattern of executive unilateralism,” including cases of presidential initiation without statutory authorization in Korea, Panama, Grenada, Bosnia, Kosovo, Somalia, and Libya 2012.  Indeed, it’s not a case of “unilateralism” at all, because it is expressly predicated on a claim of statutory authorization.
  8.  Even if the President had had Article II authority to initiate Operation Inherent Resolve two years ago, the War Powers Resolution would have required the cessation of that operation, or at least a significant ratcheting-back of the U.S. role, in November 2014.  (I believe that Jack and Matt agree with me, and the President, that the 60-day WPR clock is constitutional.)
  9.  If Congress were, somehow, compelled to vote on an AUMF in order to sustain continuation of Inherent Resolve (assume, for example, a judicial injunction to that effect), we would not get what Jack and Matt so desire–a “robust and extended debate about the nature of the threat the Islamic State poses and the sacrifices the nation needs to make to defeat it.”  Indeed, there’d be virtually no legislative (or public) debate at all about the merits of the use of force against ISIL in the three nations in question.  If anything, the debate would be solely about whether to limit the use of ground troops and whether to include a sunset provision.  
  10. [This one consolidates legal points implied above.]  If President Obama asserted an Article II authority to prosecute Inherent Resolve without statutory authorization; or if he asserted that the 60-day clock of the WPR did not limit his constitutional authority; or if he relied upon an implausible statutory interpretation in a circumstance (such as Kosovo, or Syria 2012) in which there were grave doubts whether one or both houses of Congress supported the operation, that would be very disquieting, and would establish a very troubling precedent.  But he hasn’t done any of those things.

OK, if Jack and Matt agree with me on all these points–and I assume they do, although I may be wrong about that–then what, exactly, is the harm in Obama’s reliance on the 2001 and 2002 AUMFs, even if, on the whole, one concludes that he doesn’t have the better of the argument on the statutory interpretations?

Perhaps more importantly, what do Jack and Matt mean when they say that the President should have “insisted” upon a new, ISIL-specific AUMF?  Should he have said to Congress the following?:  “Even though I have concluded that the statutory authority President Bush and I relied upon for the use of force against AQI/ISIL from 2003 to 2011 remains available now that ISIL has once more resorted to terrorist actions in Iraq, and against our allies in Europe, nevertheless I will not direct the U.S. military to use force against ISIL unless and until Congress enacts a new, ISIL-specific AUMF.”

Really?  I have a hard time believing that Jack and Matt–two very fine and experienced government lawyers–would have advised the President to play “chicken” with Congress in this way, particularly when any potential payoff would have been so abstract, placing us in virtually the same situation we are in now, and with little or no additional, valuable public debate.  I have an even harder time believing that any President would heed such reckless legal advice, when the stakes are so high–there’d be a very real possibility of legislative paralysis, with a Congress so steadfastly devoted to not approving anything of substance that the President wants–and where there’s not, in fact, any substantive disagreement about whether the President should use force at least to the extent that he proposed.

If Jack and Matt agree with me on that, too (and admittedly I don’t know whether they do), then I’m truly at a loss to figure out what, exactly, they think should happen differently now, other than the futile hope–one we all share–that one day we will again be represented by a deliberate legislative branch that takes its substantive responsibilities seriously.

 

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About the Author

is a professor at the Georgetown University Law Center. You can follow him on Twitter (@marty_lederman).