Why it Might Matter Whether the Islamic State Was AUMF-able Last Year

In February, Karen DeYoung and Greg Miller wrote a story in the WP about how Al-Qaeda’s then-recent expulsion of the Islamic State of Iraq and Syria (ISIS, now Islamic State, or IS) raised questions about whether the AUMF “still applies” to ISIS.  “According to some administration lawyers and intelligence officials,” they reported, “the expulsion of ISIS removes the group from the short list of al-Qaeda ‘associates’ that the president has virtually unlimited powers to strike under a law passed days after the Sept. 11, 2001, terrorist attacks.”  DeYoung and Miller also reported that some in the administration “think ISIS can still be targeted because of its long-standing al-Qaeda ties and parallel ambitions” (my emphasis).  As I noted at the time, “these statements imply that the administration had determined, prior to the ISIS expulsion, that the AUMF authorized the President to use force against this group that operates in Syria.” The DeYoung/Miller story is important, because it suggests that ISIS was once deemed AUMF-able, and then deemed (by many, though not all, in the administration) not AUMF-able after the split with AQ.  What one would like to know is how ISIS went (for many officials, at least) from not being AUMF-able because of the split with AQ, to being AUMF-able despite the split with AQ.  One can imagine this earlier inside history of how administration officials viewed ISIS as helping the administration’s current position that ISIS is AUMF-able (if, for example, it shows that some officials viewed ISIS as AUMF-able before last summer and continuing through the summer), or hurting the current position (if, for example, it shows that ISIS was removed from the AUMF “list” because of the split with AQ and then added to the list without any material change in its AQ affiliation). Perhaps DeYoung and Miller can go back to their sources and fill in this history.  (It would also be interesting to know if the administration still believes, as they reported in February, that Jabhat al-Nusra is on the "unofficial list" of AQ affiliates deemed to fall under the AUMF.)  But in any event, ISIS’s changing AUMF status, and the apparent disagreement and uncertainty inside the administration about whether and when and why ISIS was and wasn’t AUMF-able, highlights yet again how little the American People know about the rigor and regularity of AUMF determinations, or even about which groups the Congress has authorized the President to use force against in its name.