Reason’s Matt Welch thinks that military action against ISIS is “illegal” and that the Administration’s argument that it is authorized by the 2001 Authorization of Use of Military Force is “B.S.” His reasoning is that the AUMF only authorized action against al Qaeda, and ISIS isn’t al Qaeda, but is actually al Qaeda’s enemy.
This is not correct. The AUMF is not limited to action against al Qaeda; in fact, it does not mention al Qaeda at all. Instead, it authorizes the President to use 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.” A few notable points:
1. This is a declaration of war for constitutional purposes. One often hears people claim that Congress has not declared war, or that the Iraq War was “undeclared,” and so forth. But that is not true. The Constitution does not require a declaration of war to use any particular formula of words, and by authorizing the use of military force, the AUMF is a declaration of war as far as the Constitution is concerned.
2. The AUMF is not limited to al Qaeda, but is directed at any “nations, organizations, or persons” who, in the President’s judgment, “planned, authorized, committed, or aided” in the September 11 attacks, or to any person, group, or nation that “harbored” those responsible.
3. This is not an open-ended list. The President is obviously required somehow to “determine” that the “nations, organizations, or persons” in question were in some way, responsible for “planning, authorizing, committing, or aiding” the September 11th attacks. It’s not an open door for war against any terrorist organization. This means that the Obama Administration must show that ISIS or its members “planned, authorized, committed, or aided” in the September 11 attacks, or “harbored” those responsible. If he is unable to do so, then he has no authority under the AUMF to attack ISIS.
I don’t know much about ISIS—I suspect that it is not an “organization” or group of “persons” who “planned, authorized, committed, or aided” in the September 11 attacks or harbored those who did, but it is certainly possible that ISIS contains some of the “persons” responsible. If not, then the AUMF does not authorize attacking ISIS. But the President is in the best position to make that call. (And, of course, even if the AUMF does not authorize this action, that doesn’t mean he can’t attack ISIS; he would still have authority under the Constitution itself to act without congressional approval when necessary in an emergency to prevent harm to the U.S. Of course, he would have to have some reason to believe that there is such an emergency, which seems doubtful to me—but, again, I’m not privy to the President’s daily national security briefing.)
Still, where it cannot be shown that the organization or nation in question was responsible in any way for September 11, the AUMF does not apply. That is why President Bush did not construe the AUMF as authorizing the Iraq War, but instead went to Congress and got a new authorization, specifically allowing action in Iraq.
4. The AUMF contains no specific expiration date. That’s obviously appropriate, since when one enters a war, one shouldn’t draw any arbitrary end-date, but should fight it out till one wins. On the other hand, that indefiniteness is dangerous, since it opens the prospect of an endless series of wars. The problem with the AUMF when it was first written, and with the whole “war on terrorism” throughout its dull existence, is its vagueness—a vagueness borne out of cowardice. Congress was afraid to use the word “war,” just as political leaders of both parties are afraid to acknowledge the true nature (or headquarters) of a war against Islamic fascism. That fear led to the adoption of a vaguely worded resolution that, as the Congressional Research Service recently said, “is unprecedented in American history, with the scope of its reach yet to be determined.” The only solution to that problem is for Congress to take action now, either to specifically approve action against ISIS, or to expressly disapprove it.
The point is, war against ISIS is not clearly illegal, and basing it on the AUMF is not “B.S.” That’s just the problem with vague laws of any sort: nobody knows what they allow or prohibit.
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