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09/12/2014

Further Thoughts on War Powers and the Islamic State
Michael Ramsey

Ilya Somin argues here that Congress must authorize the conflict with IS.  I agree with everything he says, especially (a) that reliance on the 2001 AUMF is a terrible argument and (b) that "[c]laims that large-scale air attacks don’t count as warfare were specious when the administration trotted them out in defense of its intervention in Libya in 2011; and they have not improved with age." But he does not discuss what I think are the better arguments the President could make.

Executive powers historian Louis Fisher has thoughts here, especially on why this is a war.  I agree with everything he says too  (as I usually do), but I don't think anything he says is inconsistent with what I said earlier.

Andrew Hyman emails to object to my reliance on the 2002 AUMF: 

The 2002 AUMF says: "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[.]"
 
Seems to me that the key word here is "continuing".  If that word were absent, then the AUMF could last forever.  Certainly the Obama administration has taken the position that Iraq posed no threat before ISIS moved into Iraq --- or moved back into Iraq --- from Syria.
 
That's a good point, and I agree with the basic premise that the threat must be "continuing" and some content must be given to that word.  So yes, if this were an entirely new threat -- if, say, Iraq had settled down and become a stable democracy for 10 years -- I agree that the AUMF could not suddenly spring back to life if Iraq got involved in a new conflict with, say, Iran.  But that's not the case here: as I argued previously, IS is just a new version -- a continuation -- of the forces the U.S. fought pursuant to the AUMF in 2007-08.
 
It's true that the President withdrew our forces in 2011 and made some statements he may now regret about the end of the war and the dawn of stability in Iraq.  But in hindsight we now see (and he now sees) that this was mistaken; the old threat never went away, and is now back with renewed force.  I think the President and the nation are entitled change their assessment of the facts and treat this as a continuation after a brief respite rather than a new conflict, despite some wishful thinking about the supposed end of the prior conflict.  It's quite common for conflicts to appear to die down for a while and then flare up again.  Again, the key is the common identity of the old enemy and the new enemy.  It's that fact on the ground that makes this a "continuing threat posed by Iraq."
 
Finally, Eli Lake at The Daily Beast  rounds up more commentary against the relevance of the 2001 AUMF.  Matt Welch (Reason) isn't impressed either: Obama's B.S. Justification for his Illegal War: The 2001 AUMF.  I think the 2001 AUMF argument is so bad it wouldn't be worth talking about if the administration wasn't making it.