Thursday, September 11, 2014

The Elasticity of War: The Ever Expanding AUMF

Jonathan Hafetz

President Obama may not have initiated the War on Terrorism, but he has certainly become attached to it. The administration now maintains that the President's announced campaign to use force against the Islamic State of Iraq and the Levant (ISIL) in Iraq and Syria is covered by the existing 2001 Authorization for Use of Military Force (AUMF), which was passed days after the 9/11 attacks and specifically targeted those individuals and organizations responsible for the attacks. The legal theory is that ISIL was originally part of al Qaeda and, while it subsequently split from al Qaeda, "is the true inheritor of Usama bin Laden's legacy." (Oddly, this theory suggests that the U.S. has been at war with ISLS for some time, even if no one knew it). Cloaking ramped-up operations against ISIL in the AUMF has multiple aims, including providing the required congressional approval under the War Powers Act; avoiding the limitations of relying exclusively on the President's Article II commander-in-chief authority; and escaping a contentious congressional debate shortly before the upcoming mid-term elections. But, putting aside its questionable interpretation of the AUMF, the administration's theory raises troubling questions about the entrenchment of permanent war in a liberal democratic state.

The AUMF, to be sure, has been read expansively before. Some notable examples include its invocation for the authority to: detain indefinitely individuals seized anywhere in the world (and not just in connection with the U.S.-led invasion of Afghanistan, which served as the backdrop for the AUMF's enactment); engage in warrantless surveillance of U.S. citizens, circumventing the restrictions imposed by the Foreign Intelligence Surveillance Act; and conduct lethal drone strikes not only against al Qaeda, but also against "associated forces," a term that appears nowhere in the AUMF's text but which has served as the basis for drone strikes in Yemen and Somalia. (Presumably, the fact that al Qaeda and ISIL are presently fighting each other precludes invoking this "associated forces" theory here).

But interpreting the AUMF to cover ISIL remains troubling. Last year, the President delivered a speech at the National Defense University in which he announced his goal of repealing the AUMF and ending the war on terror. Instead, Obama has revitalized the AUMF, not only by extending it to a conflict that is expected to occur on multiple fronts and last years, but also by demonstrating its continued elasticity. A much better course, assuming the underlying decision to wage war against ISIL is correct, would have been to seek a new and narrow force authorization from Congress specifically targeting that group--one that would have required the people's representatives to debate the issue publicly.

Going to war against ISIL through the rubric of the AUMF has significant implications. Among them is the deterioration of the levers of democratic accountability for waging armed conflict in an age of global terrorism. It suggests not only the relative ease with which the United States will go to war, but also the way in which new military actions are subsumed under a more generalized war against extremist groups. War is becoming increasingly open-ended, while also more able to avoid democratic checks, as each successive military operation gets subsumed within an existing--and ever growing--conflict. War doesn't end; it just expands, all without the friction that the separation of powers is designed to provide.

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