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Legal Experts Tell Congress Obama's New War Authorization Fails To Limit Power

02/26/2015 07:03 pm ET | Updated Feb 26, 2015
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WASHINGTON -- National security law experts, testifying before the House Armed Services Committee on Thursday, faulted President Barack Obama’s proposed authorization for the fight against the Islamic State, saying it adds more presidential authority for waging war.

Obama offered the new authorization for the use of military force, or AUMF, as a conciliatory gesture to those who have criticized the administration's reliance on authorizations from 2001 and 2002 to fight an entirely different enemy. But rather than replacing the old authorizations, the new AUMF provides an additional legal tool for waging war.

Robert Chesney, associate dean for academic affairs at the University of Texas School of Law, told the committee that concerns over the restrictiveness of the new authorization are misplaced as long as the 2001 AUMF remains active. “To summarize the matter bluntly, the administration’s draft fails -- and intentionally fails -- to address the relationship between this new authorization and the 2001 authorization," he said. "The result is that its authorities are, optics notwithstanding, simply additive with respect to presidential authority.”

Congress has split along unusual party lines on the AUMF debate. Democrats have criticized the authorization as overly broad for failing to specifically define the enemy or place geographic limitations on the fight against the Islamic State. Republicans say they see it as overly restrictive because it would expire after three years and would prohibit “enduring offensive ground operations.”

The 2001 AUMF, passed by Congress after the Sept. 11 attacks, was intended to serve as the legal justification to fight the al Qaeda and Taliban threat in Afghanistan. The vagueness of its language has allowed two presidents to expand military operations into Yemen, Somalia, Pakistan, and most recently, airstrikes against the Islamic State in Iraq and Syria, without additional approval from Congress. Obama has long voiced his intention to repeal the 2001 AUMF and replace it with updated legislation.

Benjamin Wittes, a senior fellow at the Brookings Institution, testified that the new AUMF may offer “political constraints,” but emphasized that it “generates essentially no meaningful legal constraints” on the president’s ability to wage war.

The political restraints Wittes mentioned were the three-year sunset clause and the limited use of U.S. ground troops. But even these are “intentionally fuzzy,” in their wording, as White House press secretary admitted two weeks ago.

“The resolution does not define 'enduring,' which is a word ripe for elastic interpretation,” explained Wittes. “What’s more, as long as the president might reasonably characterize such operations as defensive, the restriction would not apply at all.”

Top-level officials disagree about the definition of “enduring.” Secretary of State John Kerry told the Senate Appropriations Committee on Tuesday, "If you're going in for weeks and weeks of combat, that's enduring. If you're going in to assist somebody and fire control and you're embedded in an overnight deal, or you're in a rescue operation or whatever, that is not enduring.”

The following day, retired Gen. John Allen, the presidential special envoy for the coalition fighting the Islamic State, told the Senate Foreign Relations Committee, "Enduring might only be two weeks. But enduring might be two years.”

Similar ambiguity surrounds the definition of an “offensive” operation. Chesney pointed out that while the operation to retake Mosul from the Islamic State may appear obviously offensive, the administration could argue that it is, in fact, a defensive response to the Islamic State seizing the territory from the Iraqi government.

To Chris Anders, senior legislative counsel at the ACLU, the new war authorization repeats several of the mistakes made in 2001. “I think the difference is that in 2001, members of Congress didn’t know that they would end up with those kinds of expanded interpretations by the executive branch,” he said. “At this point, given how the 2001 AUMF has been used over the past 13 years, all members of Congress should be going into this with their eyes wide open and realize that any place where there’s arguable ambiguity is going to be taken advantage of -- whether by this administration, or a future one.”

Rep. Adam Schiff (D-Calif.), an outspoken proponent of narrowing the president’s war authority, has called for an AUMF that repeals its 2001 and 2002 predecessors, confines the battle to Iraq and Syria, limits ground troops to training purposes, and requires Congress to revisit the authorization after 18 months.

“We shouldn’t treat this as if it has to cover all contingencies," Schiff told The Huffington Post. "It’s not like the president can never come back to Congress and ask for a new authorization. Unless the Congress wants to legislate itself into irrelevance in war-making power, we shouldn’t provide an open-ended war authority that may outlast all of us.”

In his closing remarks, Chesney told the committee, “If I have one message for this committee, it is to think about this new authorization within the old one. Otherwise you end up talking about restrictions that really aren’t restrictions. You end up doing all kinds of things you don’t mean to be doing, or you don’t know you are doing.”

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