Six months after launching airstrikes against the Islamic State in Iraq and Syria (ISIS), the Obama administration has finally sent a draft authorization for use of military force, or AUMF, to Congress. The AUMF grants the president authority to "use the armed forces of the United States as the president determines to be necessary and appropriate against ISIL [another acronym for ISIS] or associated persons or forces." There is no geographic limit on the president's actions under the draft AUMF. However, it contains a caveat: The AUMF "does not authorize the use of the United States armed forces in enduring offensive ground combat operations." The duration of the AUMF is three years, which pushes its expiry well into the next presidential administration. The draft also repeals the 2002 AUMF that authorized the invasion of Iraq.
Some Republicans are concerned about the limitations the draft AUMF place upon the use of ground troops. At least a few — notably Sen. John McCainJohn Sidney McCainGOP senators appalled by 'ridiculous' House infighting MSNBC's Nicolle Wallace, Chris Christie battle over Fox News Trump's attacks on McConnell seen as prelude to 2024 White House bid MORE (R-Ariz.) — are disappointed that the draft does not include language authorizing military action against the regime of Bashar Assad in Syria. Some Democrats, in turn, fret that the proposal gives President Obama too much flexibility, particular because it places no geographic limits on military action.
The draft AUMF has prompted a lively debate in the blogosphere. Matt Yglesias of Vox contends that the AUMF is an effort to constrain presidential power. By his reading, the proposal is an effort to set a precedent that future authorizations must be more limited in scope and duration. In contrast, Salon's Marcy Wheeler asserts that the AUMF is so vague as to grant Obama and his successor essentially limitless freedom of action.
On balance, Wheeler has the better argument. The AUMF is vague. Indeed, the White House itself has admitted that the language is "fuzzy" and, moreover, intentionally fuzzy: The language is intended to maintain the president's flexibility. Take the AUMF's limitation on ground operations: What constitutes "enduring"? One week, one month, one year? How shall "offensive" be defined? Were U.S. advisers with the Iraqi army to be attacked by ISIS, would a counterattack — even of major proportions — be construed as defensive? I'm with Wheeler: The language is ambiguous enough to drive a tank — or an armored division — through it.
Moreover, Obama has already asserted that he does not need congressional authorization for the current war against ISIS. After all, he launched airstrikes against the group six months ago and is only now getting around to asking for an AUMF. In fact, in the president's letter accompanying the draft, he explicitly states that the new AUMF — though desirable — is not legally necessary: "Although existing statutes provide me with the authority I need to take these actions, I have repeatedly expressed my commitment to working with the Congress to pass a bipartisan authorization for the use of military force against ISIL."
One of the existing statutes that the president has used in the the ongoing campaign against ISIS is the 2001 AUMF passed in the immediate aftermath of 9/11. Obama has in the past called for a revision of the 2001 authorization, which targeted those nations and groups responsible for the attacks on New York City and Washington. In the cover letter to Congress that accompanied the draft AUMF, the president declared "I remain committed to working with the Congress and the American people to refine, and ultimately repeal, the 2001 AUMF." (This, it should be noted, has not stopped the administration from using it as one of its legal rationales for attacking ISIS, citing ISIS's linear descent from al Qaeda in Iraq.) The draft AUMF, however, does not, in fact, include repeal. The 2001 AUMF will remain on the books. As long as it does, the president can use it to justify actions beyond the limits — however vague — of the most recent draft AUMF. Here's how Georgetown law professor Rosa Brooks summarizes the president's proposal:
"Dear Congress: I humbly request the authority to do whatever the hell I want even though I already have the authority to do it anyway. Love, Barack."
The tone is facetious; the point is not.
Still, as Brooks points out, the AUMF is not entirely worthless. The fact that the administration has even bothered to submit it marks progress over its complete disregard for congressional approval when the U.S. intervened in Libya in 2011. The AUMF may be — note the "may" — an occasion for a useful debate on U.S. Middle East policy on Capitol Hill. That policy, to put it charitably, is far from clear, especially when it comes to matching ends (the ultimate destruction of ISIS) with means (extremely limited.) To this extent, it's a good thing that the president has sent a draft AUMF to Congress — even if it is largely meaningless.
Barnes is the Bonner Means Baker Research Fellow at Rice University's Baker Institute for Public Policy.