Five months after the United States began to bomb Islamic State militants in Iraq and Syria, it still has no new law authorizing this military action. President Obama had asked Congress to pass one. But lawmakers have so far failed to agree. Now the president has reversed course. He said this week he will propose his own law, known generally as an Authorization for Use of Military Force (AUMF).
This delay in providing a legal underpinning for the war reveals two nonlegal problems:
One, the threat from terrorist groups keeps shifting in geography and tactics. Are Al Qaeda groups aligned with Islamic State or opposed to it? What if new groups in Libya or Yemen pledge loyalty to IS? What if terrorists carry out attacks on more highly symbolic targets in the West, such as the one on the French satirical magazine?
Two, despite 13 years of experience since 9/11, Americans and their lawmakers have yet to define the core principles – beyond defense of Americans – that would guide the commander in chief in leading all types of counterterrorism activities, from drones to electronic surveillance to boots on the ground. Since 2001, the various actions against terrorists have also spawned protests, court challenges, and frequent micromanagement by Congress.
The best laws are often the simplest because the principles and goals are clear to everyone. Yet Congress and the president have not been clear on a strategy toward IS, especially in Syria. In addition, disputes rage over how to track people who might join IS or how to respond if Syria uses chemical weapons or if IS expands to other countries.
Mr. Obama has warned Congress of a muddled consensus on the war powers granted to a president. “Unless we discipline our thinking, our definitions, our actions, we may ... continue to grant presidents unbound powers more suited for traditional armed conflicts between nation-states,” he said in a 2013 speech.
Congress and the president must agree on an AUMF that represents a long-lasting consensus on the efforts against the dynamic terrorist threats, leaving the president with enough flexibility and discretion to respond to new situations. “None of us can imagine all of the circumstances that could arise,” said Secretary of State John Kerry, citing the possibility of IS obtaining chemical weapons and the need for a quick response with US combat troops.
Just after 9/11, Americans were united in a war against Al Qaeda. The 2001 AUMF was only 60 words. By 2002, another AUMF for a war in Iraq was much longer. Those laws are now out of date because the threats have changed. The wording of a new law can again be short if lawmakers and the president agree on the principles at stake. After all, the war against terrorists is mainly a war over principles, such as freedom and pluralism. The best weapon would be unity around the principles guiding each new aspect of this war.