BRUCE FEIN: Delimiting presidential war powers

Congress is poised to deliberate an Authorization for Use of Military Force Against the Islamic State (IS).

To prevent the president from brandishing the AUMF as justification for limitless, endless, purposeless war, Congress should enact tight restrictions on the commander in chief pursuant to its war powers.

Any new AUMF should expire within 20 days unless the president has specifically defined to the speaker of the House and the majority leader of the Senate the earmarks of IS membership against whom military force may be employed. Otherwise, the president will stretch the meaning of IS to include virtually every international terrorist on the planet.

That is the teaching of the 2001 AUMF. It authorized the use of military force against “organizations” complicit in the 9/11 abominations. The sole organization known to fit the bill is al Qaeda. But the president by sheer ipse dixit expanded the AUMF exponentially to “associated forces” of al Qaeda, including splinter groups like IS which are its enemies. As early as 2010, the CIA was estimating al Qaeda’s strength in Afghanistan at 50-100. Yet the AUMF has been invoked to justify a far larger war to reach the al-Nusra Front in Syria, Ansar al-Sharia in Libya, al-Shabab in Somalia, or otherwise.

Any new AUMF should also limit the use of force against IS to Syria and Iraq where President Obama has said the danger lies. If that demarcation is neglected, the president will be fighting IS throughout the Middle East as it seeks retaliation against U.S. partners in the war, including Saudi Arabia, the United Arab Emirates, Jordan, Turkey, and Bahrain.

There would be no novelty in confining the use of force to specified territory. During the Vietnam War, Congress at various times prohibited the use of funds for ground troops or advisers in Thailand, Laos and Cambodia.

Congress should further limit the duration of any new AUMF to one year, subject to reauthorization. It should specify that after the AUMF expires, the president will have no constitutional authority as commander in chief to continue the war against IS; and, that no monies of the United States can be expended for military operations against IS except pursuant to the AUMF.

These precautions against an endless IS war are necessitated by another chapter from the Vietnam War. Congress repealed the 1964 Gulf of Tonkin Resolution authorizing the war in December 1970, and President Richard Nixon signed the legislation. But he continued the war until the 1973 Paris Peace Accords based on the president’s claimed exclusive constitutional power to bring an authorized war to a conclusion. Thousands of American soldiers were killed between the repeal and the end of Nixon’s protracted peace negotiations informed by political expediency.

Congress should additionally prohibit the president from deploying ground troops in Syria or Iraq unless he certifies in writing to the speaker of the House and the majority leader of the Senate that he believes to a reasonable certainty that IS will be destroyed within one year of the deployments. The prohibition will make the president politically and historically accountable for any Hail Mary use of combat forces reminiscent of the “Charge of the Light Brigade” in Lord Tennyson’s famous poem.

The Constitution strongly disfavors war except in self-defense because it bloats executive power, cripples liberty, celebrates secrecy and risks blowback. Mr. Obama’s current war against IS is many things, but it is not self-defense. The tighter the limits of any new AUMF, the less the U.S. Constitution will be wrenched and challenged.

For more information on Bruce Fein, visit brucefeinlaw.