Does Obama have congressional authority to bomb ISIS?

Yesterday at the Heritage Foundation, a distinguished panel considered whether the Authorization for the Use of Military Force (AUMF) passed by Congress in 2001 authorizes President Obama to bomb ISIS. Steve Bradbury, a terrific lawyer who headed up the Justice Department’s Office of Legal Counsel during President George W. Bush’s second term, argued that the AUMF confers this authority. Robert Chesney, a law professor at the University of Texas and co-founder of the Lawfare blog, found the case that the AUMF confers such authority plausible, but unpersuasive.

I took essentially the same position as Chesney when I considered the issue two weeks ago (at that time, Chesney appeared to find no plausibility in the claim that the AUMF authorizes the bombing of ISIS). Despite Bradbury’s strong advocacy, this continues to be my view.

The big problem with finding authority for bombing ISIS in the 2001 AUMF stems from its language:

[Th]e President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

ISIS did not attack the U.S. on 9/11. And although it was once closely affiliated with (if not part of) the organization that did, ISIS and al Qaeda have split and are now opposed to one another.

Bradbury addressed this difficulty by downplaying the split. From ISIS’s point of view, he argued, it was essentially a rebranding. From al Qaeda’s point of view, the split stemmed from envy over what ISIS has been able to accomplish. The formal breakup notwithstanding, ISIS exists to accomplish the same basic purposes as al Qaeda and contains the same basic DNA.

Bradbury argued that a breakup resulting from envy on one side and public relations considerations on the other should not be dispositive when it comes to determining the president’s authority to protect the U.S. from the terrorist threat to which the 2001 AUMF was addressed. I agree.

But in my view, the split between al Qaeda and ISIS goes deeper. It appears to stem from serious substantive disagreements, including disagreement over mission, at least in the short term. As I understand it, ISIS wants to focus on establishing a caliphate in the Levant. Al Qaeda wants to focus on attacking the West.

This doesn’t mean that ISIS has no interest in attacking the West; nor does it mean that ISIS is not a serious threat to our interests. But it does mean that the differences between ISIS and al Qaeda go well beyond “branding” and personal pique.

Can a group at serious substantive odds with the organization that attacked the U.S. on 9/11 be deemed an organization that “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001” or an associated force of that organization? For the president to say so is quite a stretch, even taking into account the deference to which he is entitled under the 2001 AUMF in making such determinations.

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