A Critique of the Trump Administration’s Case for Presidential War Making

On Dec. 11, the New York City Bar Association hosted a session on “The Global War on Terrorism: Do We Need a New AUMF?” William Castle, deputy general counsel of the Department of Defense, explained why the Trump administration contends that the 2001 and 2002 authorizations for the use of military force (AUMF) suffice to justify President Donald Trump’s ongoing war against terrorist groups. Karen Greenberg chaired a panel in which John Bellinger and I joined in analyzing Castle’s arguments. The Bar has now released a recording of the session.

My own presentation attempts a point-by-point refutation of Castle’s claims. Castle first asserts that the 2001 AUMF authorizes warmaking against groups, such as the Islamic Sate, that only came into existence after Sept. 11. But Congress expressly rejected the Bush Administration’s initial AUMF, which would have authorized the use of force to “preempt” future attacks, and instead restricted the authorization only to organizations that were responsible for Sept. 11; this limitation on war-making authority was expressly reaffirmed by Congress in the 2012 National Defense Appropriations Act (NDAA). Nevertheless, the administration “interprets” the AUMF as if it contained language that Congress has twice explicitly rejected—violating fundamental canons of statutory interpretation, as explained by the late Justice Antonin Scalia in his treatise on the subject. I then emphasize that the 2002 AUMF only authorizes force against the military threats posed “by Iraq,” and argue that this cannot plausibly be extended to justify the use of force against Syria or other states in the Middle East.

Next, I explain that Congressional appropriations in support of the campaign between 2014 and 2016 expressly provide that they should not be construed as constituting express authorizations for the use of force against the Islamic State, and that, in any event, the funding for the group's campaign amounted to no more than 4 percent of the entire amount appropriated by the NDAAs for these years. The other 96 percent included a host of different activities undertaken by the Defense and State Departments that members of Congress favored. This is the reason why the War Powers Resolution (WPR) explicitly creates a presumption against interpreting omnibus appropriations acts as providing the “express authorization” required for Congressional approval of hostilities initiated by the president. The funding of the war, then, cannot compensate for the failure of the administration to obtain a new AUMF for its ongoing military interventions.

I separately emphasize that, even if the legality of its wars on terrorism could somehow be established in the fact of these arguments, they would not justify President Trump’s failure to comply with the WPR in threatening a preemptive nuclear attack against North Korea. Section 4(a) of the WPR requires him to gain explicit Congressional consent for this military strategy within 60 days of the point at which it began to pose an “imminent” threat of “hostilities.” Given the expansive definition of hostilities presented in Section 8(c) of the WPR, the president’s military actions have already triggered this time-clock. For further elaboration, see my recent essay in the New York Review of Books, “How to Stop Trump Blowing It Up.”

Needless to say, my presentation generated a robust response from the other panelists and experts in the audience. I hope I have said enough to encourage you to listen while watching your favorite football games over the holiday break!