AUMF: Scope and Reach

The Other Forever War Anniversary

By Jack Goldsmith, Matthew Waxman
Saturday, September 10, 2016, 1:54 PM

We have an essay at Time.com that begins:

Tomorrow is the fifteenth anniversary of the beginning of the longest armed conflict in American history.  But another significant anniversary in the “Forever War” is today, September 10, for two years ago on this date President Obama announced his “comprehensive and sustained counterterrorism strategy” to defeat the Islamic State.

The President’s expansion of the Forever War was indeed a fateful decision—not because he ramped up force significantly against the Islamic State, which any president might have done, but because he did so unilaterally under the guise of interpreting the 2001 AUMF:

We do not fault the President for enhancing U.S. military efforts against the obvious threat posed by the Islamic State.  But his decision to expand the war unilaterally on the basis of the 2001 AUMF rather than return to the Congress and the American People and insist on a new authorization for this new war was a fateful one.  The claim of authority under the 2001 AUMF to fight the Islamic State took away every political incentive that the responsibility-shy Congress might have had to debate and authorize the war.  And that in turn has stunted 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.

Nor have events in the world necessitated such debate.  The war against the Islamic State is the epitome of President Obama’s light-footprint warfare characterized by heavy reliance on airpower (especially drones), Special Operations Forces, and cyber-operations.  Light-footprint warfare takes place largely in secret, largely from a distance, and largely without threat to U.S. personnel.  By design, it does not attract nearly the same level of congressional and especially public scrutiny as do more conventional military means. 

Congress and the American people of course know about the war against the Islamic State, and Congress has gone along with the stealth war via what are in effect stealth appropriations for it, even while failing to approve the President’s actions explicitly. But Congress as an institution has declined the opportunity to weigh in explicitly on the President’s military efforts against the Islamic State.  Deadlock over a new AUMF for the Islamic State is unlikely to be broken soon, among other reasons, because the President’s legal needs are served by a stretched 2001 AUMF, and many congressional members see possible political downside but little upside to committing themselves in a vote on an express authorization.  And the authorization issue is barely discussed in any detail by the presidential campaigns.

At the dawn of the fifteenth year of the war against enemy Islamist terrorist groups, what are we to make of President Obama’s dramatic extension of the war, without debate or express authorization by Congress, and with hampered engagement by the American people?  As we note in the Time piece, we recently addressed this question in an essay on ”The Legal Legacy of Light-Footprint Warfare.”  There we show that the extension of the AUMF to include the Islamic State was one of several significant legal moves by the Obama administration that establish very broad authority for light-footprint but high-potency military operations.  We acknowledged that some view the President’s unilateralism as business-as-usual, the latest small step in slowly building presidential unilateralism since the founding, and especially one not to worry about since Congress has appropriated for the expansion even if it has not formally authorized it.   We are inclined toward a somewhat different view:

The United States wields military force today in ways starkly different from 2001. The conflict that began fifteen years ago has been characterized by ever-morphing enemies, an uncertain though expanding geographical scope, and an indefinite duration unlike any war in previous eras in U.S. history. The United States has stumbled into its current military posture with stunted public debate and intermittent congressional attention. This is no accident, since light-footprint warfare takes place largely in secret, largely from a distance, and largely without threat to U.S. personnel. President Obama’s legal approach to war powers emphasizes the very factors that invite low domestic scrutiny to support unilateral presidential action. It reflects the idea that the smaller the footprint and the lower the risk of substantial U.S. casualties, the less the imperative to obtain overt approval by Congress or the U.S. people.

As a matter of democratic principle, this attitude probably has matters backwards. Light-footprint warfare is still lethal and very consequential warfare, and the lightness of the tools make them relatively easy for a President to deploy extensively. Light-footprint warfare thus has large foreign policy, strategic, and reputational consequences for the United States, akin to much heavier deployments, yet much less public examination. The President’s legal theories treat this as a feature of such warfare. But it is also a bug for U.S. democracy, since the stealthy features mean that public debate and political checks—which reduce error as well as excess, and promote legitimacy—function ineffectively.

This is not just an issue of principle, but of practical consequence for long-term security strategy. While operational stealth is often critical to successful warfighting, robust checks on presidential unilateralism help ensure that a chosen strategic path can withstand tough scrutiny. Congressional buy-in certainly does not guarantee it, but it does help sustain broad political support for strategy over time—especially in the face of later setbacks.

Getting Congress more involved is easier said than done, and is a failure of both of our political branches of government.  As we noted in Time, “we are at the moment stuck in an unfortunate equilibrium in which both Congress and the President have little real interest or incentive in an extended debate on war strategy and war authorization.”