The Ever-Expanding War on ISIS
Noah Feldman notes that the administration’s draft authorization for the war against ISIS grants the president far broader authority than the 2001 AUMF that it would be supplementing:
The new authorization, however, extends to “individuals and organizations fighting for, on behalf of, or alongside ISIL or any closely-related successor entity in hostilities against the United States or its coalition partners.” This language goes further than the old authorization. Fighting “alongside” Islamic State could be almost anyone involved in the fight against Bashar al-Assad, for example. Uncomfortably enough, that would include potential U.S. allies — and even, bizarrely, the U.S. itself.
The new authorization would also cover isolated individual actors with no actual connection to Islamic State who nevertheless claimed to be fighting on its behalf [bold mine-DL].
I touched on this in my earlier post. While it may appear at first glance that passing a new AUMF will impose some limitations on the conduct of the war, what it really does is to endorse an open-ended and extraordinarily ill-conceived war that may not be limited to Iraq and Syria and could expand to include any number of other groups. As it so often does in these matters, the Obama administration feigns restraint, but in practice overreaches even more egregiously than its predecessor.
The enemy is defined so broadly that any pretense that the war is being “limited” in any meaningful way is fanciful. The administration could cite this AUMF as it is written now to take military action practically anywhere and to target groups and individuals that have no connection to the organization that the U.S. has been bombing for the last six months. Gene Healy aptly describes this as “codifying mission creep.” Considering how rapidly the administration went from a supposedly defensive, “limited” intervention to an offensive campaign in both Iraq and Syria, it would be reasonable to assume that the administration wanted this expansive definition of the war because they intend to continue expanding the conflict beyond those two countries.
Feldman goes on to point out that as long as the 2001 AUMF remains in force, which it would under the administration’s draft resolution, the administration could simply cite that authorization as justification for ignoring any of the restrictions that the new resolution supposedly imposes:
As a legal matter, the limitations are close to meaningless. The president could rely on the 2001 authorization if he wanted to send ground troops for an extended period; the 2001 authorization has no endpoint.
Robert Golan-Vilella concurs:
Assuming that the 2001 law remains in place—which it would, under this proposal—it has the potential to make the limits in the new AUMF a lot less meaningful. Imagine that President Obama’s successor were to decide in 2017 that he or she wanted to conduct larger ground operations against the Islamic State, or in 2018 that he or she wanted to carry on the war beyond the three-year sunset date even if Congress did not vote to extend that deadline. If the 2001 AUMF is still in effect then, there is still the possibility that the White House could invoke it once again for these purposes. The 2001 AUMF, after all, has neither a sunset date nor any restrictions on the type of force that it allows, and we already know that the White House believes that it serves to authorize military force against the Islamic State.
The administration has shown that it is perfectly willing to wage a war in the absence of any authorization, and it has already been waging another one by grossly distorting and misinterpreting an earlier authorization. Even if the restrictions in the new AUMF meant anything, we could expect the administration to ignore them in the confidence that Congress would do nothing about it. Congress should refuse to sign off on the administration’s expansive war resolution. It won’t stop or limit the war in practice, but it will put an end to a farcical process and it won’t give the president the rubber stamp approval he wants.