By Daniel Judt
“That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
-Senate Joint Resolution 23, September 14, 2001
“The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to […] defend the national security of the United States against the continuing threat posed by Iraq…”
-House Joint Resolution 114, October 16, 2002
Senator Angus King (D-Maine) was confused and disturbed. It was May 16, 2013; King found himself sitting on a hearing before the Senate Armed Services Committee discussing the Authorization of the Use of Military Force (AUMF) passed by Congress in 2001. The operative clause of the authorization reads only 60 words long (and is quoted in full above); passed three days after 9/11, it was designed to grant President Bush power to wage war on anyone remotely involved in the attacks. But what disturbed King, and many others watching the hearing, were not the words in that act but two new words – a sixty-first and a sixty-second – that the lawyers in the Department of Defense (DOD) kept flinging around in the hearing: “associated forces”. King was shocked: read with “associated forces” as an implied extra two words, the resolution all but authorized the president to wage war on terrorist groups whenever, wherever, without ever seeking congressional approval again.
The AUMFs cited in full above – one from 2001, another authorizing force against Iraq in 2002 – will come up a lot. Their ninety-nine words are the legal backbone of the last decade of US military operations in sovereign states; conceived of and passed into law 12 years ago, they continue to provide legal justification for today’s headlines. They are perhaps the two most well-known and significant characters in the story of “lawfare” – the use of law as a weapon of war – that this blog will attempt to track.
I will focus on two types of lawfare. The AUMFs fall under domestic legal justification; just as important, though, is adherence to international laws governing military operations. Often, the US finds itself in questionable legal territory when it sends Special Forces into nations around the world; sometimes, it goes a step further and acts in blatant violation of international or even domestic legislation. This topic might seem theoretical and full of unnecessary jargon; it is. And yet, it has a huge real-world impact: it is precisely this divide that makes it worth examining. International and domestic laws about the use of force in other nations exist for a reason; if we agree that a country and world shaped around rules and careful regulations designed to maintain peace is a good thing, which most of us seem to, then we need to take note when those rules start getting trampled.
Take, for example, the situation with the Islamic State of Iraq and Syria (ISIS). As the debate about whether engaging militarily with ISIS was the right strategic move to make rages on, another, quieter question ought to make its way to the spotlight: do we have the legal right to do what we are doing?
For now, let’s focus on domestic legality. Thanks to the War Powers Resolution in the wake of Vietnam and Article II of the Constitution, President Obama is good to go for 60 to 90 days when it comes to using military force without congressional approval (what is often known as the “60 day clock”). After that, though, the President needs to seek approval from Congress unless a currently active law gives him the right to use force in the situation he is confronting. If such a law is already on the books, Commander-in-Chief Obama has no need for Congress.
And this is precisely what the Obama Administration has maintained. The two quotes at the top of this article are Obama’s legal justification for his war against ISIS. But using either or both AUMFs to justify attacking ISIS leaves the President on very shaky legal ground, ground that he himself has said he views as extremely dangerous.
First, the AUMF from 2001, or Senate Joint Resolution 23. The wording of the resolution is about as vague as it gets; for Obama to use it against ISIS, though, it would have to be one step vaguer. ISIS did not “plan, authorize, commit, or aid in the terrorist attacks that occurred on September 11, 2001”; it did not exist at the time. Of course the organization that would later blend into ISIS were around, but the group that president Obama is now fighting was not a formal group in 2001. Nor, then, could it possibly have “harbored” the persons behind 9/11. This is not an overly simplistic legal analysis: the text of the AUMF is undeniably clear and in no way authorizes a war against ISIS in 2014.
Second, the AUMF from 2002 – House Joint Resolution 114. The Obama Administration seems here to be classifying ISIS as “the continuing threat posed by Iraq”. While this might at first appear more reasonable than the weak justification for the use of the first AUMF, it too runs into problems. The generally accepted legal analysis of Resolution 114 takes the “continuing threat” from Iraq to mean the threat from the government of Saddam Hussein, or at its broadest the threat posed by the Iraqi state. The threat also has to be “continued” from 2002, when the resolution was passed: ISIS quite obviously does not qualify.
If their inapplicability is so clear, though, why has the Obama Administration chosen to fall back on these resolutions? The answer lies in the two extra words. ISIS may not have been around in 2001, but the administration and DOD claim that it is an “associated force” of the terrorist groups who were on the scene and who took part in 9/11. By this same logic, ISIS fits with the “continued” fight in Iraq because it is an associated force inside Iraq that is responsible for the collapse of the Iraqi government (the Obama administration goes further and argues that the resolution also authorizes force in Syria, since it never limits itself geographically to the Iraqi boarders). All this after Al Qaeda actually took steps to separate itself from ISIS, thus disassociating the Islamic State from the terrorist network responsible for 9/11. The Obama Administration’s current domestic legal justification for its war against ISIS rests on two words that never appeared in two resolutions that are well beyond their sell-by date.
This ought to concern us. It certainly concerns the President: in numerous speeches, Obama has spoken about the need to restrict and eventually repeal the AUMFs of the Bush administration because they are too general, too malleable, and too easy to twist. The hypocrisy is evident.
But so what? Why should we care if Obama uses shaky or flat-out fabricated legal justification for military action he needs to carry out? We should care because allowing our president to extend Bush’s AUMFs to his wars of 2014 creates a terrifying precedent, one where our separation of powers come wartime no longer exists. And allowing his Department of Defense to use two words that were never authorized by our government as the true legal justification for a war is not just a terrifying precedent: it signals a willing disregard for our legal system as a whole. Senator King put it best his hearing: to let our President use the AUMFs as he is now is to let him and his lawyers “rewrite the constitution”.
Daniel Judt ’17 is in Timothy Dwight College. Please contact him at firstname.lastname@example.org.