Wednesday’s Senate Committee on Foreign Relations (SCFR) hearing on ISIL presented an opportunity for the administration to defend its theory that the use of force against ISIL is covered by Congress’ 2001 Authorization for the Use of Military Force (AUMF). It didn’t go well.

A key exchange occurred between the Chair of the Committee Sen. Menendez and Secretary Kerry, followed by comments from Ranking Member Sen. Corker (video clip below and transcript below).

First, Secretary Kerry strangely emphasized that the 2001 AUMF applies to “associated forces” (see 2:08 in the video clip). But that is not the administration’s argument. As Marty Lederman (Just Security post) and Steve Vladeck (Lawfare post) have explained, the administration’s legal position is that ISIL is not an associated force, but is instead Al Qaeda itself (one of two splinter groups or a “successor model”). It would be a fool’s errand to try to claim ISIL is an associated force given the major breakup between AQ and ISIL. Indeed, Sen. Menendez interjected: “al-Qaida threw out ISIL.” Moreover, AQ’s affiliate in Syria and ISIL, it would be fair to say, have been engaged in an armed conflict against one another.

Second, by the time Secretary Kerry started to present a “successor”-type analysis, he seemed to have lost his audience. The Chair began by referring first to the 2001 AUMF and reminding Mr. Kerry that administration officials had recently testified before the committee that the 2002 AUMF should be repealed. Sen. Menendez then asked a pointed question: “How is it that the administration now thinks it can rely upon that for legal authority?” Secretary Kerry replied, “Mr. Chairman, how is it? It is because (pause) good lawyers within the White House, within the State Department, who have examined this extremely closely, have come to the conclusion across the board…” And then he began reading directly from the text of the 2001 AUMF.

Better to have led with a substantive argument and stated a rationale (and answer the part of the question about the 2002 AUMF). Sec. Kerry’s response also raises other questions. The administration lawyers came to the same conclusion “across the board”? That’s remarkable given that lawyers outside the government, including those who have previously served in the administration don’t exactly buy it. Also, did Mr. Kerry mean to refer just to the White House and the State Department? What about the Justice Department and the Office of Legal Counsel? Was excluding the DOJ a purposeful omission? [It should be noted that Sen. Boxer remarked in defense of Mr. Kerry’s position: “I voted for the one in’01, and I’ve re-read it about six times. Mr. Secretary, the lawyers I’ve consulted with believe that you have the authority to go after ISIL. It’s very clear. You read the parts. If people listened to you, you read the parts that are correct.”]

Regardless, Sen. Menendez expressed his incredulity: “I appreciate your ability as a former prosecutor and a gifted attorney to try to make the case. I will tell you that at least from the chair’s perspective, you’re going to need a new AUMF.” Sen. Corker added: “I’m disappointed that you as secretary of state, after being chairman of this committee, after espousing the views that you have espoused in the past out of convenience and parsing legal words would make the statement you just made.” That said, Sen. Corker may have also been referring in part to Mr. Kerry’s third difficult moment.

Third, Secretary Kerry almost implored Congress to take the lead on drafting an AUMF—a role you might expect the White House to perform. He said, “but we know you are thinking about retooling the AUMF. And we welcome — we would like Congress — please do this” (if you listen to the clip, you’ll see the emphasis is in the original). Yet at the same time he stated baldly that the President doesn’t need the Congress to act either. During the afternoon’s session, that line—we welcome your input, but we’ll act the same with or without it—did not sit well with the Senators (see statements by Senators Corker, Flake, Menendez, and Shaheen). Sen. Corker reserved his harshest words for that part of the administration’s position saying it was “exercising the worst judgment possible.”

Lets’ be fair to Secretary Kerry. He was stuck with a weak case overall. And the Senators may have given this particular messenger a harder time—having to listen to the Executive Branch’s position from the former Chair of their own committee.

A transcript of the exchange follows.