Back in March of this year, long before the Islamic State of Iraq and al-Sham (ISIS, ISIL, or the “Islamic State”) was the global crisis, I argued that it was time for the United States to reconsider the utility of the mandate granted to the executive branch by the 2001 Authorization for Use of Military Force (AUMF)–the law Congress passed following the September 11, 2001 attacks on the U.S. homeland by Al Qaeda. My argument at the time was spurred by comments made by Assistant Secretary of Defense Michael Lumpkin. The law, written in the flurry of rage and emotion that gripped the United States after the attacks, cleared Congress with but 1 nay vote amid 535 legislators. Since then, its turned into a blank check for the U.S. executive branch.
Shortly after President Obama outlined his strategy against ISIS on September 10, 2014, on the eve of the 13th anniversary of the 9/11 attacks, it became clear that his administration would use the AUMF as the president’s legal justification for ordering the strikes against ISIS.
Spencer Ackerman, for the Guardian, received an email from a senior U.S. official who clarified that the 2001 AUMF was indeed the administration’s legal rationale:
Based on ISIL’s longstanding relationship with al-Qa’ida (AQ) and Usama bin Laden; its long history of conducting, and continued desire to conduct, attacks against U.S. persons and interests, the extensive history of U.S. combat operations against Isil dating back to the time the group first affiliated with AQ in 2004; and Isil’s position – supported by some individual members and factions of AQ-aligned groups – that it is the true inheritor of Usama bin Laden’s legacy, the President may rely on the 2001 AUMF as statutory authority for the use of force against Isil, notwithstanding the recent public split between AQ’s senior leadership and Isil.
Putting aside the merits of the declared strategy and the broader normative issue of whether this is the United States’ fight, the 2001 AUMF is a prima facie absurd reason to go to war against ISIS. The 2001 AUMF states that “the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Simply put, the president of the United States is free to pursue, with military force, any individual, group, state, or other institution affiliated with al-Qaeda.
ISIS, as it happens, is no friend of Al Qaeda’s. Yes, the group was an off-shoot from Al Qaeda, but today, in September 2014, it is a strategic foe for Al Qaeda. The two groups have a deep philosophical disagreement about the priorities of global jihad (as even the official in the above email notes). To oversimplify, Al Qaeda sees its first target as Western governments and others who prop up secular Arab dictators, Israel, and other non-Sunni leaders in the Muslim world. ISIS, meanwhile, has focused its efforts on establishing a caliphate first and using its strength to directly fight the governments it deems unfit for rule (this includes Syria’s Bashar al-Assad and Iraq’s deeply Shia-dominated government). Yes, ISIS was at one point known as “Al Qaeda in Iraq,” but in September 2014, it is an entirely separate entity that is diametrically opposed to Al Qaeda in many ways–even engaging in skirmishes with Jabhat al-Nusra, Al Qaeda’s wing in Syria. It is simply not an “associated force” in terms of the 2001 AUMF.
The 2001 AUMF is a delightfully expansive law if you’re a member of the U.S. Executive Branch looking to swiftly implement strategy in a far-flung land. Whereas under normal circumstances, Congress has to declare war or authorize the use of force, the executive is free under the AUMF to carry out this action provided that it is actively targeting an Al Qaeda affiliate. Just take a look at the United States’ remotely piloted aircraft strikes against targets in Yemen and Pakistan.
The reaction from American legal scholars and commentators, understandably, has been one of equal parts indignation, confusion, and shock. The administration’s decision to use the 2001 AUMF might simply be an example of following the political path of least resistance (at least when it comes to Congress). Obama has repeatedly emphasized his interest in making decisions on international intervention with the acquiescence of Congress (even if he doesn’t formally need it, like last year in Syria). Indeed, in his speech, he said as much about the current plan to fight ISIS. With the 2001 AUMF backing the executive in this case, any problems that may arise in Congress will not be relevant legally for the administration.
Realistically speaking, little will come of the fact that the 2001 AUMF is a flimsy legal justification for going to war here. In all likelihood, should the campaign against ISIS grow into a protracted quagmire (which isn’t out of the realm of possibility), Congress will simply stitch together a supplementary AUMF treating ISIS as a discrete case. What’s more, this is almost a necessity under the War Powers Resolution. Some in Congress, notably Senator Bob Menendez (D-N.J.), are on the task already.
Last year, in a speech at the National Defense University, Obama told an audience that looks forward to “to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate.” His current actions do not suggest that his administration is ready to let go of the generous latitude that law grants the executive branch. On the one hand, it is the legislature’s responsibility to step in here to check executive power. After all, it makes good sense from the administration’s perspective to pick whatever legal rationale would allow for the swiftest implementation of kinetic action on the ground in Iraq. If nothing else, the administration’s current call to action against ISIS should be a wake up call for Congress and the American people that the mandate of the 2001 AUMF has outstayed its welcome.