Squaring a New AUMF for ISIL with the President's NDU Speech...

As Bobby has noted, Karen DeYoung of the Washington Post is reporting that the Administration is now considering more seriously whether to ask Congress for authorization to use military force against the Islamic State.  Jack has argued persuasively why it would make sense for the President to seek a congressional mandate. And it is worth noting that, as a Presidential candidate, Senator Obama told Charlie Savage in 2007 that “military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action.” (He also said that “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”) If the Administration does decide to seek congressional authorization for the use of military force against ISIL, one question is how the White House will square that effort with the President’s NDU speech last year, where the President said with respect to the 2001 AUMF “I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate.  And I will not sign laws designed to expand this mandate further.” Up to now, of course, the President has done virtually nothing to “engage Congress and the American people” with respect to the 2001 AUMF. This is not surprising, given the political polarization in Congress.  Administration lawyers have often had to engage in legal gymnastics in order to rely on the 2001 AUMF to justify use of force against al Qaida affiliates in Yemen and Somalia, but the White House has (understandably) concluded up to now that it is easier simply to continue to muddle through rather than try to revise the AUMF.  (In 2010, I wrote an op-ed in the Washington Post calling for updating the AUMF, but subsequently concluded myself that it was politically impossible.) If the President does now call for a revision of the 2001 AUMF to authorize the use of force against ISIL, will he call it a mere “refinement” (especially if he asks for authority to use military force in both Iraq and Syria)? That would sound a lot like an expansion to me, but the President has said that he would not sign any law designed to expand the AUMF. And, whether mere refinement or a cloaked expansion, a revision would certainly not be a “repeal” of the 2001 AUMF. But that was an aspirational bone thrown to the left wing of the President’s base, who apparently believe that if the U.S. Government renounces its legislative authority to use military force against terrorists, we can declare the armed conflict with Al Qaida (or “War on Terror”) to be over and the country can devote itself full-time to more peaceful endeavors (with perhaps an occasional minor use of force here and there to defend the country, based solely on the President’s constitutional powers). (For an extreme version of this argument, see this idealistic New York Times editorial from March 2013 entitled “Repeal the Military Force Law.”) It will be interesting to see whether the White House will continue gamely to assert the President’s stated desire to repeal the 2001 AUMF, while at the same time seeking to “refine” it. Or perhaps the White House will simply side-step the 2001 AUMF (and the President’s NDU speech) altogether by calling for a new stand-alone AUMF against ISIL (perhaps replacing the 2002 AUMF against Iraq), while leaving the 2001 AUMF on the statute books, to be refined (or repealed) another day.