Any AUMF against ISIL Should be Clear and Specific
In the wake of the recent terrorist attacks from Beirut to San Bernardino, President Obama stood in the Oval Office on Sunday night and urged Congress to “vote to authorize the continued use of military force against” the Islamic State in Iraq and the Levant (ISIL).
Should Congress authorize the use of military force against ISIL, it is crucial for our security, and U.S. global counterterrorism leadership, that the new authorization be clear and specific. The 2001 Authorization for the Use of Military Force (AUMF) has been stretched beyond Congress’s intended purpose—authorizing force against the perpetrators of the 9/11 attacks—to cover groups that did not even exist at the time, resulting in damage to our security and international standing. This Congress should use precise language in any ISIL AUMF to ensure that it won’t be used contrary to congressional intent.
So what would that look like? An ISIL AUMF should specify that the authorization is for the use of force against ISIL and that it does not authorize the use of war authorities against groups or individuals that are not at war with the United States.
The U.S. government utilizes an array of counterterrorism tools against individuals and groups engaged in terrorism both at home and abroad. Because a different legal framework applies during wartime, it is important to distinguish between our usual robust counterterrorism efforts and armed conflicts with specific organized armed groups, such as ISIL.
A new ISIL AUMF should also state clear mission objectives and include meaningful reporting requirements to keep both Congress and the public informed about the scope and progress of the mission. It should clarify that the authorized force must comply with U.S. obligations under international law, including the laws of war.
In addition, if the AUMF fails to repeal the 2001 and 2002 AUMFs, it should clarify that the new authorization is the sole source of statutory authority to use force against ISIL, so as not to expand and confuse the administration’s war-making powers. It should also set a sunset date for both the new authorization and the 2001 AUMF. A sunset would force Congress and the administration to review the appropriate scope of war authorities to fight ISIL, al Qaeda, the Taliban, and “associated forces” as the conflict evolves.
These recommendations are in line with a statement of principles to guide the congressional authorization of force against ISIL. The principles represent a bipartisan consensus among leading national security law experts on the necessary elements for an ISIL AUMF.
Recently, several members of Congress have echoed President Obama’s appeal for an ISIL-specific AUMF, with legislative proposals introduced in both chambers. Yesterday, Representative Adam Schiff (D-CA) introduced a proposal that consolidates the 2001 AUMF into a new AUMF and authorizes force against ISIL, al Qaeda, the Taliban, and organized armed groups associated with them as co-belligerents in hostilities against the United States. Representative Schiff’s proposal also includes a three-year sunset and repeals the 2001 AUMF and the 2002 Iraq AUMF.
Senators Tim Kaine (D-VA) and Jeff Flake (R-AZ) have revived their call for the proposal they introduced in June. This bill—a companion version of which was introduced to the House yesterday by Representatives Scott Rigell (R-VA) and Peter Welch (D-VT)—includes a three-year sunset and specifies that it is the sole source of authority for the ISIL fight. However, it contains an overly broad definition of “associated persons or forces” that would allow the president to use lethal force, as a matter of first resort, against groups or individuals not engaged in war against the United States. Last week, Senator Lindsey Graham (R-SC) released a troublingly overbroad proposal, and earlier this week Representatives Bradley Byrne (R-AL) and Adam Kizinger (R-IL) offered an ISIL AUMF that is similarly unclear.
Congress is in a position right now be smart and deliberate in its approach to authorizing force against ISIL. The lack of precision and clarity in prior authorizations has led to the erosion of human rights protections, and also undermined U.S. global leadership on counterterrorism. To counter terrorism effectively, Congress should take advantage of the lessons of history and only authorize force in clear and precise terms.