The argument for a new and flexible authorization for the use of military force.

• Author: Castle, William S.

INTRODUCTION

With the murder of American citizens, the unraveling of opportunities provided by our service members to the people of Iraq, and the potential destabilization of the Middle East, few will argue that the terrorist organization known as the Islamic State (IS) does not pose "a clear and present danger to the national security of the United States." (1) Accordingly, President Obama has committed his Administration to the objective of "degrade[ing] and ultimately destroying]" IS. (2) However, this raises the central legal question that occurs whenever our forces are committed to combat: Under what legal authority can the President use military force?

I agree with President Obama's assertion that he has the constitutional authority to conduct military operations against IS. (3) In addition to this Article II power, President Obama was appropriate in invoking the 2001 Authorization for the Use of Military Force (2001 AUMF) and the 2002 Authorization for Use of Military Force Against Iraq Resolution (2002 AUMF) as additional bases for using force against IS. (4)

Nevertheless, the President continues to insist on limiting the types of strategies and tactics that can be utilized by our forces against this new enemy. (5) The Administration's initial policy was to prohibit "boots on the ground" in Iraq and Syria. (6) With the publication of the President's AUMF proposal, this position appears to have been modified so as to prohibit "the use of the United States Armed Forces in enduring offensive ground combat operations." (7) Additionally, the President's proposal would cap the new authorization at three years. (8)

The importance of maintaining legal flexibility for the possible use of additional military capabilities against IS was underscored by former Defense Secretary Robert Gates's recent warning that "there will be boots on the ground if there is to be any hope of success in the strategy." (9) This point was echoed by General David Petraeus in his admonition that defeating IS will take "months and years, not days or weeks." (10)

But just as the President appears to have changed his position from a policy of prohibiting "boots on the ground" to not authorizing an "enduring offensive ground combat operation," (11) the Administration has on a number of occasions revised its interpretation of the existing AUMFs over the past two years. (12) This fluctuation could lead to questions as to the legitimacy of using the 2001 and 2002 AUMFs as the basis for the use of force against IS. Though the President has ample war powers to confront IS, Congress should follow the President's adjure (13) and enact a third AUMF to address any lingering concerns and ensure there is no legal doubt that our military has maximum flexibility to eliminate IS. However, it is of vital importance that any new AUMF not create the artificial and potentially harmful limitations which are unfortunately a hallmark of the President's proposal. (14)

Accordingly, this Article argues for the adoption of a third AUMF, but for one unencumbered by the shortcomings of the President's draft sent to Congress on February 11. Instead, Congress should enact the 113th Congress's Senate Joint Resolution 43 (S.J. Res. 43), (15) which complements but does not replace the 2001 and 2002 AUMFs. Though the President has ample war powers to confront IS without a new authorization, adoption of S.J. Res. 43 will eliminate any ambiguity as to the nation's resolve to conduct operations against IS. (16) Equally important, the adoption of either piece of legislation will preclude any politically-motivated legal restrictions regarding "time, geography, and type of forces," which unnecessarily jeopardize the goal of eliminating IS and needlessly add to the risks faced by the U.S. Armed Forces. (17) Part I of this Article describes the constitutional and statutory history of the President's war powers and the benefits of an AUMF. Part II discusses the ambiguity caused by the Administration's continuing policy revisions regarding the 2001 and 2002 AUMFs. Part III argues for the enactment of a third AUMF and prescribes both the structure and necessary elements of such legislation. As part of the discussion of what components should be part of the new AUMF, this article argues that S.J. Res. 43, rather than the President's draft, meets the requirements of what provisions should be included in this third authorization.

1. HISTORICAL AND LEGAL CONTEXT

   Though only sixteen words, Article II, Section 2 of the U.S. Constitution conveys broad war powers upon the President, even without congressional authorization. (18) Yet, how does a clause providing that "[t]he President shall be commander in chief of the Army and Navy of the United States" authorize the President to commit our armed forces in combat overseas? (19)

   The Constitution does not spell out the President's war powers. (20) Therefore, these war powers "must inhere in the Commander-in-Chief Clause and the judicial and executive glosses on it." (21) Accordingly, to better decipher what these specific powers are, Stephen Dycus dissects the President's power into three specific categories. (22) The President's "customary war powers" are defined as those powers of the President that have been "acquired by consistent practice with congressional acquiescence." (23) Simply put, in our nation's history the President has exercised necessary and inherent authority to deploy U.S. forces aboard, many times in combat, without the authorization of Congress. (24)

   Supporting this historical precedent argument, Dycus lays out a variety of sources supporting his contention that congressional acquiescence has given the President broad war powers. Dycus cites a Congressional Research Report which concludes that "[although we have formally declared war only 11 times in our history, we had used armed force aboard on more than 300 occasions through 2004." (25) In addition, Dycus also invokes a writing of Leonard Meeker, a former Vietnam-era Legal Advisor to the State Department, who "inferred from 125 prior congressionally unauthorized uses of armed forces abroad that the President had the 'power to deploy American forces abroad and commit them to military operations when [he] deems such action necessary to maintain the security and defense of the United States." (26) Finally, Dycus cites a law review article from noted constitutional law professor, Henry P. Monaghan, who in 1970 wrote:

   From the beginning of our constitutional history, presidents have both deployed the armed forces abroad and committed them to actual hostilities without explicit congressional authorization. In excess of one hundred and twenty instances of such action exist. The precedents extend back to Washington and include that great "strict constructionist" Jefferson; they run through the nineteenth century; and with the emergence of the United States as a global power in this century, they become sharper and more spectacular.... Moreover, no recent president has refused to commit the armed forces to actual hostilities because of a lack of congressional approval, as the conduct of Truman in Korea, [and] Johnson in the Dominican Republic ... demonstrate.... [T]hus, argues the state department, "practice and precedent have confirmed the constitutional authority of the president to commit the armed forces to battle without a declaration of war." (27) These examples provide ample evidence demonstrating that the President has broad constitutional war powers based the historical use of those powers.

   In more recent times, there are other important examples of the President using his war powers without the express authorization of Congress. During our military intervention in Grenada, Congress hardly reacted at all, despite the fact that, "according to Secretary of State George Shultz's own account, no member of Congress was consulted prior to the invasion." (28) This has also been the case in other instances of hostilities, as well. Indeed,

   [f]or the most part, congressional Democrats applauded Reagan's 1986 unilateral strikes on Libya despite a lack of consultation with Congress prior to military action. In 1989, the Democratic majority supported the Republican President George. H. W. Bush's invasion of Panama, even though Congress was given only five hours' prior notice and thus could not vote before the operation was launched. (29) Although these were smaller operations, they establish a pattern of presidential action.

   Bosnia, one of the largest U.S. military operations of the last century, was also launched without specific congressional authorization. (30) Although President Bill Clinton repeatedly stated he was in favor of congressional authorization before using U.S. military force in combat, (31) his statements on the matter began to evolve over time. (32) For example, President Clinton repeatedly objected to legislative efforts to restrict his military options. "[H]e opposed any amendment 'that affects the way our military people do their business, working with NATO and other military allies,' or any amendment that 'unduly restricted the ability of the President to make foreign policy.'" (33) In the end, "[a]cting on what he considered sufficient authority under Article II of the Constitution and NATO obligations, Clinton ordered the deployment of 20,000 American ground troops to Bosnia without obtaining the authority or support from Congress." (34) Clearly, the Clinton Administration believed it had sufficient war powers to conduct a large-scale operation that could have lasted for a significant period of time.

   Ironically, many contemporary commentators have complained that the Executive appears to seek authorization for the use of force not from the Congress but from international organizations. (35) They note: "Truman in Korea, Bush in Iraq, Clinton in Haiti and Bosnia--in each instance a President circumvented Congress by relying either on the UN or...