Friday, May 18, 2018

What We Learned (or not) About the Corker-Kaine AUMF

Deborah Pearlstein

The Senate Foreign Relations Committee hearing this Wednesday on the proposed 2018 Authorization for Use of Military Force (AUMF), co-sponsored by Senators Bob Corker (R.-Tenn.) and Tim Kaine (D-VA), was in many ways a model of how democracy should work.  The witnesses were expert and prepared, the Senators’ questions were thoughtful and informed, and everyone who participated was sober and respectful.  Would that we approached more of our national decision-making this way.  At the same time, it became apparent that senators’ views about whether this bill would be more or less effective than the existing 2001 AUMF in constraining presidential power to use force are based on misapprehensions about where we are under current law.  (Recall the current AUMF, passed just after the attacks of 9/11, has since been invoked as the law authorizing everything from the invasion of Afghanistan and the detention of prisoners at Guantanamo Bay; to drone strikes in Yemen, Somalia, Libya, and Syria; to the military detention of U.S. citizens (including one currently held in U.S. military custody in Iraq) accused of membership in one of the terrorist groups the law covers.)  Herewith, some assertions (several of them from both sides of the aisle) made Wednesday that could use some important qualifications, constitutional qualifications included.

The 2001 AUMF has been interpreted so broadly, presidents have been able to rely on it to justify essentially any use of force they want.   While there is little doubt more than one president has offered implausibly sweeping interpretations of the 2001, the existing law functions to constrain presidents in several demonstrable ways.  Most immediately, there is ample evidence from public accounts of both the Bush Administration (contemplating the invasion of Iraq) and the Obama Administration (contemplating, for example, the targetability of Al Shabaab in Somalia for a period of years) in which the administrations concluded the 2001 AUMF was insufficient authorization for initiatives at the edge of relevance to the attacks of 9/11.  Identifying instances in which presidents have used force under the 2001 AUMF is not enough to make the argument that it has not constrained; on the question of constraint, understanding when and whether presidents haven’t used force is at least as important.   Further, the meaning and scope of the 2001 AUMF has long since been informed by a set of judicial decisions that have already – and appear poised to increasingly – guarantee additional limits are imposed on presidential authority.  Most prominently at the moment, the 2001 AUMF requirement (absent in the new bill) that detainees held under the statute be part of groups in some respect related to the attacks of 9/11 is the subject of very active litigation in federal courts in Washington, in which the administration’s authority to detain ISIS members under the law is substantially in question.  Similarly, the Supreme Court’s 2004 ruling in Hamdi v. Rumsfeld, requiring that the “necessary and appropriate force” authorized by the AUMF be informed by the Geneva Conventions and the international law of war has required (and will continue to require) courts to consider when detention authority under the law expires (a question even the D.C. Circuit now understands must be resolved as a matter of statutory interpretation by the courts).  (That the Corker-Kaine bill fails by its terms to reaffirm the requirement that it be interpreted with reference to the law of war is one of several ways in which Corker-Kaine may be read as troublingly broader than the current AUMF.) Because Corker-Kaine would repeal the 2001 AUMF, judicial decisions interpreting that law would no longer have certain relevance.

The Corker-Kaine bill’s requirement that the president report to Congress every 4 years on the use of military force under the law, following which report Congress has 60 days to consider modifying the authorization to use force under expedited legislative procedures, will ensure that future Congresses debate the necessity of ongoing war far more frequently than the does the 2001 AUMF (which contains no such reporting requirement).  As the witnesses Wednesday noted, the President is already required to report new uses of force under current law, and there is nothing at all in the law that has prevented Congress from reconsidering and modifying the 2001 AUMF at any time.  The notion that Corker-Kaine will make it more likely that Congress will regularly debate the state of the war is thus based solely on the expectation that the availability of expedited procedures (by which, for example, the Committee on Foreign Relations can only consider acting for so long before the matter is referred to the full Senate) gives members an incentive to engage in deliberation on the state of the war they have not otherwise had.  History – most notably the inclusion of analogous “Congressional Priority Procedures” in the 1973 War Powers Resolution – should provide ample reason for doubting that such procedural mechanisms much alter the incentives of members of Congress otherwise not disposed to expressing their views on the state of a war.  Indeed, by authorizing the President to add groups to the list of enemies against whom force may be used without first returning to Congress (as the Corker-Kaine bill does), the bill removes perhaps the most powerful incentive there is for Congress to engage on a question of war – namely, the existence of an identified, pressing national security threat that the President asks Congress urgently to address.  In this respect, if Congress were most interested in maximizing incentives for legislative engagement, it would seem more effective to include the reporting and expedited procedure provisions while eliminating the delegation of power to the President to add more groups to the list of enemies whenever he deems it necessary. 

Ordinary constitutional concerns about excessive or unconstrained delegations of power by the Congress to the President do not arise on questions of war power, as to which the President has significant constitutional authority of his own.  The Supreme Court has long recognized as among first constitutional principles the idea that one branch of government could not simply give away all of its authority to another without doing fatal harm to the Constitution’s separation of power.  At its height, that non-delegation rule never prohibited Congress from delegating the Executive Branch power to perform certain functions; but it did require that Congress provide some “intelligible principle” by which the Executive could act while still constrained by Congress’ will.  And while it is true the Court has not declared an Act of Congress wholly unconstitutional on non-delegation grounds for decades, the Court today regularly cites non-delegation concerns as grounds for reading especially sweeping grants of power to the executive narrowly.  In this respect alone, Corker-Kaine proponents should be concerned about a variety of new litigation risks this bill creates. 

Critically, and contrary to the suggestion at the hearing, there is no certainty at all that the Court will find such concerns less salient just because the President has relevant constitutional authority of his own in this realm.  The idea that the Court is untroubled by broad delegations of power to the President in foreign affairs is most commonly traced to the Court’s 1936 decision United States v. Curtiss-Wright Export Corp., a non-wartime case in which the (pre-New Deal) Court upheld a statutory delegation of power to the President to place an embargo on arms sales to certain countries.  Curtiss-Wright’s once-often-cited broad language about presidential power in foreign affairs has been thoroughly repudiated by the Court’s words and actions in the years since 1936, and that case (and the tiny handful of other cases sometimes cited with it) involved delegations of power that pale in comparison to the Corker-Kaine bill today.  Like the 2001 AUMF, the Corker-Kaine bill contains no geographic restrictions, limits on duration, or on the amount or kind of force to be used (from drone strikes to ground invasion).  Well beyond the 2001 AUMF, Corker-Kaine also delegates to the President the power to add more enemies to the list of those with which we are at war.  And unlike the 2001 AUMF, which authorized force “in order to prevent any future acts of international terrorism against the United States,” and the separate 2002 AUMF, which authorized the President to use force in Iraq “in order to,” among other things, “enforce all relevant UN Security Council resolutions regarding Iraq,” the Corker-Kaine bill contains no “in order to” clause of any kind.  Indeed, unlike existing law, this bill authorizes the President to use force not only against current members of our enemies’ forces, but also against any person that “the President determines … has been a part” of any enemy force.  That is to say, even if Al Qaeda, ISIS, and any others later designated were to cease to exist as organized groups – even if they were militarily defeated in any ordinary sense of the word, even if “war” in any constitutional sense is over – the President could still use force.  Such a delegation of power has no historical analogue, dwarfs the statutes considered in case law of old -- and especially relevant for what non-delegation advantage a president may claim in this realm, stretches far beyond any conception of independent Article II “war” power any President might constitutionally claim.

After 17 years of war, Congress should be commended for at long last moving to reassert its constitutional duty to decide when the United States will use force.  But as the hearing Wednesday made apparent, the Corker-Kaine bill risks being the moment when Congress asserts its authority only to create a far bigger constitutional problem than already exists.

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