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The Administration’s Proposed Syria AUMF Is Very Broad

Jack Goldsmith
Lawfare
September 2, 2013

The administration’s proposed Authorization for the Use of Military Force (AUMF) for Syria provides:

(a) Authorization. — The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in connection with the use of chemical weapons or other weapons of mass destruction in the conflict in Syria in order to –

(1) prevent or deter the use or proliferation (including the transfer to terrorist groups or other state or non-state actors), within, to or from Syria, of any weapons of mass destruction, including chemical or biological weapons or components of or materials used in such weapons; or

(2) protect the United States and its allies and partners against the threat posed by such weapons.

There is much more here than at first meets the eye.  The proposed AUMF focuses on Syrian WMD but is otherwise very broad.  It authorizes the President to use any element of the U.S. Armed Forces and any method of force.  It does not contain specific limits on targets – either in terms of the identity of the targets (e.g. the Syrian government, Syrian rebels, Hezbollah, Iran) or the geography of the targets.  Its main limit comes on the purposes for which force can be used.  Four points are worth making about these purposes.  First, the proposed AUMF authorizes the President to use force “in connection with” the use of WMD in the Syrian civil war. (It does not limit the President’s use force to the territory of Syria, but rather says that the use of force must have a connection to the use of WMD in the Syrian conflict.  Activities outside Syria can and certainly do have a connection to the use of WMD in the Syrian civil war.).  Second, the use of force must be designed to “prevent or deter the use or proliferation” of WMDs “within, to or from Syria” or (broader yet) to “protect the United States and its allies and partners against the threat posed by such weapons.”  Third, the proposed AUMF gives the President final interpretive authority to determine when these criteria are satisfied (“as he determines to be necessary and appropriate”).  Fourth, the proposed AUMF contemplates no procedural restrictions on the President’s powers (such as a time limit).

I think this AUMF has much broader implications than Ilya Somin described.  Some questions for Congress to ponder:

(1) Does the proposed AUMF authorize the President to take sides in the Syrian Civil War, or to attack Syrian rebels associated with al Qaeda, or to remove Assad from power?  Yes, as long as the President determines that any of these entities has a (mere) connection to the use of WMD in the Syrian civil war, and that the use of force against one of them would prevent or deter the use or proliferation of WMD within, or to and from, Syria, or protect the U.S. or its allies (e.g. Israel) against the (mere) threat posed by those weapons.  It is very easy to imagine the President making such determinations with regard to Assad or one or more of the rebel groups.

(2) Does the proposed AUMF authorize the President to use force against Iran or Hezbollah, in Iran or Lebanon?  Again, yes, as long as the President determines that Iran or Hezbollah has a (mere) a connection to the use of WMD in the Syrian civil war, and the use of force against Iran or Hezbollah would prevent or deter the use or proliferation of WMD within, or to and from, Syria, or protect the U.S. or its allies (e.g. Israel) against the (mere) threat posed by those weapons.  Again, very easy to imagine.

As the history of the 9/11 AUMF shows, and as prior AUMFs show (think about the Gulf of Tonkin), a President will interpret an AUMF for all it is worth, and then some.  The proposed Syrian AUMF is worth a lot, for it would (in sum) permit the President to use military force against any target anywhere in the world (including Iran or Lebanon) as long as the President, in his discretion, determines that the the target has a connection to WMD in the Syrian civil war and the use of force has the purpose of preventing or deterring (broad concepts) the use or proliferation of WMDs in, to, or from Syria, or of protecting the U.S. and its allies from the mere threat (again, a broad concept) of use or proliferation of WMDs connected to the Syrian conflict.

Congress needs to be careful about what it authorizes.

UPDATE: Moon of Alabama and Emptywheel have related analyses of the proposed AUMF.

UPDATE 2: I neglected perhaps the most salient implication of the proposed AUMF: The phrase “The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate” would include authorization for ground troops, should the President decide they were “necessary and appropriate.”  And yes, if history is any guide, Congress can authorize the President to use force in a limited fashion with limited means (i.e. just the Navy, or just the Air Force).  Curtis Bradley and I went through this history on pp. 2072 ff. here.

This article was posted: Monday, September 2, 2013 at 5:50 pm





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