Talking through Obama’s AUMF proposal

Last week, the Obama administration sent Congress a draft proposal for a new Authorization of Military Force (AUMF) specifically targeted at the threat of the Islamic State in Iraq and Syria (ISIS). Predictably, the reaction was swift. Equally predictably, the feelings toward the proposal were largely divided along partisan lines. There is one commonality, however — feelings that the draft AUMF is not perfect.

{mosads}House Majority Leader Kevin McCarthy (R-Calif.), in a rather representative view of Republican concerns, announced that he is “prepared to support an Authorization for Use of Military Force (AUMF) that provides new legal authorities to go after ISIL [another acronym for ISIS] and other terrorist groups. However, I will not support efforts that impose undue restrictions on the U.S. military and make it harder to win.”

House Minority Leader Nancy Pelosi (D-Calif.), in contrast, stated that the Obama administration’s draft is “serious and thoughtful” and, importantly, “ends the outdated 2002 AUMF that authorized the Iraq [W]ar, restricts the use of ground troops, and includes other important limiting provisions going forward.” Furthermore, Pelosi stated that “Congress should act judiciously and promptly to craft and pass an AUMF narrowly-tailored to the war against ISIS.”

Responses were swift by those outside of government, as well. My colleagues at National Security Network (NSN) offered “the good, the bad and the ugly” of the proposed AUMF. Among the “good,” seconding Pelosi, is the end to the 2002 Iraq AUMF.

There are more two contested “good” outcomes stemming from the proposed ISIS AUMF. First, NSN contends that three-year expiration date “is important to make sure the conflict is reassessed in the future and to prevent the next president from dramatically changing war policy without congressional approval.” However, this provision is part of the concern expressed, primarily by conservative members of Congress and other critics, that the AUMF may inadvertently hamstring the president — or the president’s successor — in the struggle to “degrade, and ultimately destroy” ISIS. However, in a report issued in August of last year, it was revealed that nearly a quarter of previous military authorizations included expiration dates. Thus, it is unlikely that President Obama’s request will undermine the legitimacy of the commander-in-chief powers.

The second contested “good” component of the proposed draft is that it applies meaning to the term “‘associated forces’ in a way that is consistent with traditional, narrow meanings of term.” On this there is a fair amount of disagreement, including from Marty Lederman. He argues that there are at least three issues with “associated forces” in Section Five of the proposed AUMF. Briefly, Lederman believes that the wording of the draft may be overbroad and not adhere to recent legal definitions and laws of war. For example, Lederman is concerned that Section Five suggests that “associated persons” can be targeted at any time, not merely when they “directly engaged in hostilities.”

In short, the Obama draft AUMF has laid the framework for a necessary, public debate about the scope and breadth of the American fight against ISIS. While there are weaknesses in the draft, there undoubtedly are also strengths. There may be good, bad and ugly components to the administration’s suggested AUMF, but there is also bipartisan agreement that the merits need to be debated and discussed. Republicans, including likely presidential hopeful Sen. Ted Cruz (Texas) feel that “it is long past time for the White House to seek an AUMF from Congress.” Democrats, such as Sen. Jeanne Shaheen (N.H.), similarly argue that the “[a]dministration’s decision to pursue a congressionally approved AUMF is long overdue.” Shaheen further suggests that “debating and passing a narrowly-defined authorization of force is critical to strengthening our country’s fight against ISIS.”

It seems clear that a well-articulated AUMF targeting ISIS is desired by both parties and both elected branches of the federal government. Pundits and elected officials clearly see ways in which the proposed AUMF can be altered to further the interests of the United States in this important struggle.

Importantly, however, it remains to be seen if the House and the Senate can talk their way through to passing an acceptable AUMF. First, as noted by others, it will require senators most likely to run for the presidency — including at least Cruz, Rand Paul (R-Ky.), Lindsey Graham (R-S.C.), Marco Rubio (R-Fla.) and Bernie Sanders (I-Vt.) — to take a position on the 2001 AUMF as well as the current proposal. Secondly, it is a test of the lame-duck administration’s impact over foreign policy, generally, for next two years. Finally, and perhaps most importantly, a new AUMF could buttress President Obama’s role in the struggle in the Middle East and versus terrorism, while simultaneously enhancing congressional influence in the same policy space in future struggles and to the detriment of future presidential powers.

Gibson is an associate professor of political science at Westminster College in Missouri and a National Security Network (NSN) fellow. The views expressed here are not necessarily the views of NSN.