Marty Lederman’s brilliantly subversive defense of the president’s reliance on the 2001 AUMF

His argument boils down to the following points.

1. The administration’s legal theory is based on a factual predicate that might be correct (“the recent ISIL attacks are not unrelated to the AQ design of 2001, but instead part and parcel of that enemy’s design:  that ISIL considers itself ‘the true inheritor of Usama bin Laden’s legacy’”). “Not unrelated”!

2. The administration adopted a legal theory that was less bad than the one “everyone” (?) expected (“a newly aggressive understanding of the President’s unilateral constitutional power to initiate military operations”). Most important, this theory keeps the ultimate authority in Congress’ hands.

3. Congress and the public support the military operation anyway (“this is a case in which the public and both houses of Congress do overwhelmingly support the President’s contemplated use of air strikes against ISIL, in Iraq and in Syria, but in which the leadership of the House has informed the Administration that the chamber is almost certain not to vote on the operation, for reasons other than substantive disapproval ”).

In sum, “a masterstroke that deftly threaded the needle without disregarding congressional will.”

A masterstroke, indeed. Here are thoughts about each of the points:

1. The president always knows conditions that justify military operations better than the public and Congress does. These conditions include not only the threat to Americans in a direct sense (an ISIS-sponsored terrorist attack on U.S. soil), which is derived from secret intelligence, but all the intricate, semi-secret implications for the security of allies, the proliferation of weapons, the dissemination of violent ideology, and so on—and here, of course, U.S. information about the actual structure of ISIS and its connections with other groups. The key point is that while the truth may ultimately come out, it will come out too late to affect Congress’ and the public’s capacity to stop a war before it begins. No way to sue the president for damages or obtain injunctions if the facts turn out the other way. And wars rarely stop, as we know from very recent experience, when the factual predicates are shown to be false.

2. Given the sort of interpretive latitude that Lederman grants the president, and effective deference to the executive branch’s superior information, the practical difference between a statutory argument and an Article II argument is vanishingly small. If you don’t believe me, sit down and read executive-branch opinions (some of them issued by OLC, some not, and some of them proposed but not officially adopted) on Haiti, Bosnia, Kosovo, Libya, etc. Adopting a “narrow” interpretation, closely tied to the facts and existing statutory authorities, in order to avoid broad legal assertions is meaningful only if the limiting language in the earlier opinions actually block subsequent action (they don’t) and old statutes can be repealed (apparently, they can’t).

3. This is really a political argument, not a legal argument, but it is worth noting that in Lederman’s hand it becomes a precedent that justifies the use of military force when the public and Congress “really” supports it, whether or not Congress acts officially through its voting procedures. Another loophole to be widened in future iterations.

What of the claim that Congress can turn around and take away the president’s authority—the great virtue of a statutory approach? But this would mean assembling a veto-proof majority in both Houses—which is not going to happen. Indeed, the opposite is more likely to happen—as has happened before (above all, Kosovo): Congress will be constrained to “support the troops” and vote for the money they need to continue operations.

You might have noticed that Lederman loaded his post with qualifications (“if this factual predicate is true,” “if that claim is true,” a “tentative case,” etc.), which in fact enhances the effectiveness of his defense. Nothing defuses a thundering jeremiad against the abuse of presidential power like a lawyer’s modest “it’s complicated.”