Last year, when President Obama declared his intention to take the United States off “perpetual war footing,” he identified a crucial mechanism for doing so: repealing the resolution that Congress passed in 2001 authorizing George W. Bush to use military force against those who “planned, authorized, committed or aided” in the September 11 attacks—namely, Al Qaeda.
“Unless we discipline our thinking, our definitions, our actions, we may be drawn into more wars we don’t need to fight or continue to grant presidents unbound powers more suited for traditional armed conflicts between nation states,” Obama said during the speech, adding that his intention was to “refine and ultimately repeal the AUMF’s mandate.”
Now, as the president seeks to vastly expand the footprint of American military action in Iraq and Syria, he’s using that very same 2001 authorization as legal justification for skirting Congress. “I have the authority to address the threat of ISIL,” Obama declared on Wednesday evening in a speech laying out his plans for an indefinite military campaign against militants in Iraq and Syria. He said he would “welcome congressional support,” but indicated he wouldn’t wait for it.
“We believe he can rely on the 2001 AUMF for the airstrikes he is authorizing against ISIL,” senior administration officials said on a press call before the speech. The administration does believe it needs Congress to explicitly approve funding to train and equip Syrian rebels, which is part of the strategy Obama outlined on Wednesday.
The administration’s reliance on the AUMF isn’t just ironic. It’s also based on very tenuous logic. The White House argues the resolution covers a multi-country war on ISIL because the organization is “the true inheritor of Usama bin Laden’s legacy,” according to a statement from the administration, “notwithstanding the recent public split between [Al Qaeda]’s senior leadership and ISIL.”
Some legal scholars view this argument skeptically. Writing in Time, Harvard law professor and former Justice Department official Jack Goldsmith called it “unconvincing,” noting that “if this remarkably loose affiliation with Al Qaeda brings a terrorist organization under the 2001 law, then Congress has authorized the President to use force endlessly against practically any ambitious jihadist terrorist group that fights against the United States.”