This NYT report — Obama Sees Iraq Resolution as a Legal Basis for Airstrikes, Official Says – suggests that the President (or at least his legal team) is considering the 2002 AUMF as the authority for attacks on the Islamic State. Per my previous posts (here and here) I think that's the right answer (and certainly better than reliance on the 2001 AUMF).
Josh Blackman comments: Is it the 2002 AUMF or the 2001 AUMF? Jack Goldsmith comments: Obama Administration Claims that 2002 Iraq Resolution is a Legal Basis for Air Strikes Against the Islamic State [UPDATED].
Ilya Somin critiques the 2002 AUMF argument here:
Michael Ramsey offers a stronger version of the claim that the 2002 AUMF authorizes Obama’s actions. He notes that ISIS is in many ways a successor organization to some of the Sunni insurgents that US forces battled in Iraq in 2007-08. If the 2002 AUMF covers the fighting between US forces and ISIS’ predecessors back then, why not also Obama’s actions today? The answer, I think, is that the 2007-08 fighting was legally authorized not by the 2002 AUMF but because US forces had actually been attacked by the Sunni insurgents. US troops don’t need congressional authorization to defend themselves. But the US combat role in that conflict ended when American troops were withdrawn in 2011. President Obama himself has repeatedly said so. Therefore, today’s intervention against ISIS cannot be justified as a continuation of the fighting against Sunni insurgents several years ago. It is a new war and requires new congressional authorization.
This is a version of the critique Andrew Hyman made on this blog, and my response is similar: I think the withdrawal of troops in 2011 was a lull in a continuing war, which has now resumed (even if that is not how we saw it at the time). What matters is the reality: is this the same enemy we have been fighting since at least 2007? My answer is yes. As a result, it's irrelevant that the U.S. combat role ended (briefly). The President is entitled to suspend combat for a while without losing his authority to renew it as necessary, so long as it remains part of the same conflict.
Meanwhile, John Yoo endorses the 2002 AUMF, as well as the 2001 AUMF and independent presidential power, as the basis for the President's action: The President Doesn’t Need Congress’s Approval to Attack ISIS – But he should seek it anyway. On the 2002 AUMF he argues:
Notice that [the 2002 AUMF] does not state that the authority is limited to overthrowing Saddam Hussein. It gives authority to the president to prevent national-security threats emanating from Iraq. The current such threat is that the Islamic State is developing a terrorist state with control over a large swath of Iraq, from which U.S. military and intelligence analysts believe the jihadist group will carry out attacks on the U.S. and its allies.
Furthermore, the relevant U.N. Security Council resolutions [referred to in the 2002 AUMF] committed the U.S. to the reconstruction of Iraq, its territorial integrity, and political independence, and authorized states to prevent Iraq from threatening the region’s peace and stability. While President Obama may wish that mission were completed, the rise of the Islamic State shows clearly that it is not. Air strikes on the Islamic State and military aid to friendly Iraqi forces fall within the actions authorized by the text of the AUMF.
I agree. I think this may be the first time I have agreed with John on a war powers issue.
One further point: Jack Goldsmith notes (in the update here) that the administration might seek to rely on the 2002 AUMF to authorize the use of military force against IS in Iraqi territory but not the use of military force against IS in Syrian territory. I don't think the President needs to read it so narrowly.
The 2002 authorization approves military force to:
defend the national security of the United States against the continuing threat posed by Iraq …
As John Yoo argues, the "threat posed by Iraq" to the "national security of the United States" is that IS is using Iraqi territory to build a terrorist state. That threat is intertwined with IS's use of bases in Syria to launch attacks into Iraq. A very plausible way to defend the national security of the United States against the continuing threat posed by Iraq [that is, IS's control of Iraqi territory] is to attack IS's bases in Syria. Indeed, one might say that a strategy focused only on IS in Iraqi territory, without taking account of IS's Syrian bases, is misconceived. In any event, the 2002 AUMF has no geographic limits, so long as action taken under it is directed to mitigating the threat posed from Iraq. Here, there is no doubt that attacking IS in Syria would be directed toward mitigating the threat posed from Iraq.
Posted at 6:03 AM