WASHINGTON -- President Barack Obama made waves this week by sending a proposed Authorization for Use of Military Force to Congress for its consideration.
What was striking about his proposal wasn't so much that it came six months after the start of the U.S. military campaign against the Islamic State militants, but that it was constructed in a way that makes it operationally pointless.
The AUMF submitted by Obama authorizes three years of fighting against the Islamic State with vague limits on how engaged U.S. ground troops can be. But if Congress were to simply sit on its hands, military operations would continue anyway. That's because the president has relied on a sweeping 2001 war authorization to legally cover the combat operations already underway. Though he has stated his desire to repeal the 14-year-old measure, he did not make that a condition of his new request. War, in other words, can proceed legally unabated regardless of what this Congress does.
"The reality is that without a sunset on the old authorization, it doesn't limit this administration or the next in any appreciable manner," said Rep. Adam Schiff (D-Calif.). "When the new authorization expires three years from now ... the next president can rightly say, 'I'm going to rely on the 2001 authorization just as Obama did. It gives me every authority I need.'"
The concept of open-ended war isn't new. Several AUMFs from U.S. military campaigns as far back as the 1700s have never expired. Technically, because of old authorizations still on the books, the president has the authority to go after pirates in the Caribbean and French ships "on the high seas."
But for Obama, the reliance on such flexible legality is a remarkable evolution. When he ran for president in 2008, a major part of his foreign policy allure was his vow to move the country away from launching wars with little restrictions and no strategic end game.
- Bemoaning an amendment that he believed would put the U.S. on a war footing with Iran, Obama warned in an October 2007 speech that thinly tailored legal rationales would be exploited by whoever resided in the Oval Office. "George Bush and Dick Cheney could use this language to justify keeping our troops in Iraq as long as they can point to a threat from Iran," he said. "I don't want to give this president any excuse or any opening for war. Because as we learned with the authorization of the Iraq War, when you give this president a blank check, you can't be surprised when he cashes it."
- Speaking to Larry King in March 2007, Obama described his famous 2002 anti-Iraq War speech as a stand not just against that war but against an "open-ended commitment without any clear strategy for success."
- At a foreign policy speech at DePaul University in October 2007, he lashed out at the Bush administration, the media and the "majority of a Congress" that "voted to give the president the open-ended authority to wage war that he uses to this day."
- At a virtual town hall meeting in April 2007, he said he drew his early opposition to the Iraq War from the belief that "if we gave open-ended authority ... we would have an open-ended occupation of the sort that we have right now. And I have stated clearly and unequivocally that that open-ended occupation has to end."
At some moments in the 2008 presidential campaign, Obama was referencing a separate 2002 AUMF that launched the war in Iraq, not the 2001 authorization used to fight Islamic State forces today. But at other points during the campaign, he spoke far more generally. Even as president, he has continued to advocate the idea that the United States neither could nor should launch a war without a firm legal foundation and a conceivable ending.
"The [2001] AUMF is now nearly 12 years old," Obama said in a May 2013 speech at the National Defense University. "I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate. ... But this war, like all wars, must end. That’s what history advises. That’s what our democracy demands."
A request for comment from the White House was not returned.
Faced with criticism that the president's proposed AUMF would place few, if any, legal restraints on the Islamic State fight, White House press secretary Josh Earnest said Wednesday that Obama is still committed to eliminating the 2001 war authorization. Just not right now.
"It is the view of the president that the AUMF that authorized the use of military force against al-Qaeda should be changed to reflect [a new military mission focused on the Islamic State], with the eventual goal, as the president articulated in that speech a year and a half ago, of repealing that 2001 AUMF," Earnest said. Eventually, he added, "we want to be in a scenario where we're not on a permanent war footing."
At this juncture, it is likely that the U.S. will remain on a war footing well after Obama leaves office. That gives this administration two options: to disengage from the fight during its last two years or find a legal rationale to continue the battle. The administration has gone with the latter. But instead of pushing Congress to pass a new legal rationale, it has chosen to keep leaning on an old one.
"The Obama administration is doing what all executive branch entities have done, which is try to have as much control and leverage over how they define all sorts of things on national security and not be hampered or tied down by Congress," said Brian Katulis, a senior fellow at the Democratic-leaning Center for American Progress.
Part of the problem facing Congress and the president as they try to craft wartime authority is the nature of the modern enemy. Conflicts aren't state-defined as they have been in the past. There is seemingly no possibility of an Appomattox-like meeting to bring to an end a conflict with a borderless and evolving terrorist threat.
"[W]e are stretching the limits of that language in part because of the nature of what needs to be done," Katulis said. "Here we are, almost 14 years after 9/11, and the fundamental question is, do we actually have a metric to determine whether we are winning and losing?"
Citing the difficulty in answering questions like these, Republicans have criticized Obama for crafting a new AUMF that would tie the president's hands, mainly because of its restrictions on the use of ground troops. Better to have all tools at one's disposal, they argue, when confronting an amorphous threat like the Islamic State.
The debate will play out over the next couple of months as lawmakers try to find agreement on the right level of flexibility to give Obama. In the meantime, a president who came into office criticizing how the Bush administration stretched legal authorities on war will continue to rely on a Bush-era authority.
"When he said that [in the campaign], he never imagined what it would be to be president of the United States with a caliphate wannabe beheading Americans on YouTube," said Rep. Brad Sherman (D-Calif.), a member of the House Foreign Affairs Committee.
"This is Michael Corleone. 'I tried to get out. Every time I tried to get out, they pulled me back in,'" Sherman said, referencing the "Godfather" movies. "You try to ease conflict, and they behead somebody on YouTube."
"It is very hard to have peace on all fronts," he added.
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