To be clear, the proposal is merely an invitation to Congress to offer its own restrictions on Obama’s war-making authority. Still, it falls well short of what is needed, and it remains to be seen whether Congress can step in and do better.
The proposal would authorize armed force against “ISIL or associated persons or forces,” a category that is loosely defined as any entity that is fighting “alongside ISIL” or is a “closely-related successor.” It would not authorize the use of force in “enduring offensive ground combat operations,” which is also pretty loose wording and doesn’t say what operations force would be limited to. It says authorization would terminate three years after the proposal’s enactment by Congress, which means it might be operative after the mission is accomplished, however that might be defined.
“This is a constructive proposal, but it’s not sufficiently limited,” Jameel Jaffer of the American Civil Liberties Union tells me. “It lacks geographic limitations, it uses loose language to describe the category of groups that can be targeted, and it fails to state at all clearly the specific objective for which military force is being authorized.”
Perhaps most important, it would not repeal the 2001 Authorization for the Use of Military Force, or AUMF, which authorized force against the perpetrators of the 9/11 attacks. The problem with this is that the administration has already cited the 2001 AUMF as the legal basis for the authority to wage war on ISIS. That was an absurd argument to begin with, but absent the repeal of that measure, the administration could theoretically still rely on it to carry out activities not sanctioned by a new authorization.
“If you don’t repeal the original AUMF, you create the possibility the president will continue to rely on it,” Jaffer said. “Any limitations Congress imposes under the new AUMF could be ignored. This is a meaningless exercise unless it includes repeal of the original AUMF.”
Obama’s successor could theoretically do the same. “The next president could simply say, ‘Just as President Obama relied on the 2001 AUMF, I’m going to do the same thing,'” Dem Rep. Adam Schiff of California told me.
To be fair, in his letter accompanying today’s proposal, Obama said he remains committed to working with Congress to “refine, and ultimately repeal, the 2001 AUMF.” That’s good. But Republicans appear more preoccupied with the notion that the new proposal may be too limiting. As National Journal’s Daniel Newhauser reports, Republicans may have trouble uniting their conference behind any language and may have little incentive to pass anything. After all, combat operations have been underway for months, and today, the White House reiterated that it believes it has the authority — under the 2001 AUMF, of course — to continue the war even if Congress passes no new authorization. Newhauser’s reporting suggests Republicans may simply see no incentive to buy into the war.
Indeed, the larger point here may be that, whether or not any new proposal does pass, the damage has already been done. The bigger story stretches over the last few decades, during which we’ve seen a steady normalization of unilateral war-making by presidents and the erosion in Congress’ power over military decisions. As Congressional researcher Louis Fisher has documented, there are many reasons for this, including the increasing reliance of presidents on international bodies for warmaking authority, and the rise of the volunteer army, which has made war a less pressing public issue. Democratic and Republican administrations alike have obviously been responsible for this, but so has Congress, which has often seemed content to allow the trend to continue.
What we’ve seen this time — Obama’s initial refusal to seek authorization for the escalation against ISIL; the failure of Congress to step up and place its own restrictions on that operation; and the administration’s current claim that absent any new AUMF it has the authority to continue — only constitute the latest chapter in that broader story. It’s good that Obama has formally offered a proposal and invited Congress to weigh in, but even if Congress does pass a new AUMF, that chapter, for all intents and purposes, has already been written.