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If We Don't Need an AUMF for Iraq, Why Would Repeal of the 2001 AUMF Matter?

Robert Chesney
Sunday, September 7, 2014, 6:59 PM
This coming Wednesday evening, President Obama will address the country on the topic of Iraq and the Islamic State, describing his strategy and making the case to the public to support an approach that not only will involve a continuation of the ongoing pattern of airstrikes (see here for a description of the latest set of airstrikes).

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This coming Wednesday evening, President Obama will address the country on the topic of Iraq and the Islamic State, describing his strategy and making the case to the public to support an approach that not only will involve a continuation of the ongoing pattern of airstrikes (see here for a description of the latest set of airstrikes). Speaking on Meet the Press this weekend, the President explained that, though we will not put boots on the ground, this will not be an exercise in mere containment. As quoted in the Times, he said:
“We are going to systematically degrade their capabilities; we’re going to shrink the territory that they control; and, ultimately, we’re going to defeat them,” he added.
It does not follow, though, that the President will be asking Congress for an AUMF. On the contrary:
The president said he planned to meet with congressional leaders on Tuesday to outline his strategy, but suggested he did not need a vote to move forward with his campaign against ISIS, saying he was “confident” that he has the authorization he needs. Still, Mr. Obama hinted that he might ask for more money for the mission, saying, “It’s going to require some resources, I suspect, above what we are currently doing in the region.”
Jack has repeatedly made the case for why it is problematic (not to mention in great tension with his prior statements) for the President to proceed without asking Congress for an authorization. Rather than pile on as to that point, I want to make a different point here: If the President believes that Article II standing alone empowers him to engage in a military campaign of the magnitude contemplated for Iraq (and Syria?), why would anyone think that the continuing existence or repeal of the 2001 AUMF matters in legal terms for the way we use force in Pakistan, Yemen, Somalia, Afghanistan, Somalia, etc., aside of course from a repeal's impact on the fate of the legacy population at GTMO? From a lethal force perspective, is there anything we currently do in those places that could not continue on the Article II model?

Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.

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