How to Fix the President’s ISIL AUMF Proposal: A Discussion with Jennifer Daskal and Gene Healy

By G. Weber

Yesterday Human Rights First hosted a discussion on President Obama’s proposal for an Authorization for Use of Military Force (AUMF) against ISIL. The panel featured Jennifer Daskal, a professor at American University’s Washington College of Law, and Gene Healy of the Cato Institute. The consensus: Obama’s AUMF proposal leaves a lot to be desired, and there is bipartisan support for a fix.

The proposed AUMF’s broad definition of “associated persons and forces” is particularly concerning. Daskal noted that it doesn’t even contain the narrowing principles of co-belligerency in the current interpretation of the 2001 AUMF, which authorized the United States to pursue the perpetrators of 9/11 and has since been used to justify a broad range of military action. Such broad phrasing could permit Obama or a future president to use military force against ISIL in Libya or Boko Haram—forces that merely pledge allegiance to ISIL but are not actually in an armed conflict with the United States.

Daskal and Healy also raised concerns about vagueness in the congressional reporting requirements. These would require the president to submit reports every six months on the “specific actions taken” under the ISIL AUMF. Daskal said under these conditions the administration would likely divulge as little information as possible, impeding congressional oversight and transparency. The administration should be required to report on which groups we are fighting, where we are fighting, and information on combatant and civilian casualties.

Both speakers pointed out the conspicuous silence on the 2001 AUMF, which Obama says already gives him the authority to fight ISIL. Daskal and Healy agreed that passing a new AUMF without specifically stating that it is the sole legal authority governing the fight against ISIL could allow the administration to circumvent any limits in the new authorization by relying on the 2001 law. Failing to sunset the 2001 AUMF would also mean that a future administration could revert back to the 2001 AUMF to continue to fight ISIL without getting reauthorization from Congress.

A 2001 sunset would also prompt a long-overdue debate on the law’s continued utility. As Daskal stressed, a sunset clause does not mean that the fight against ISIL would end prematurely, but simply ensure that Congress and the administration would revisit the authorization at a later date.

Finally, both panelists stressed that an AUMF preemptively authorizing force against groups that don’t pose a threat to the United States is both dangerous and an unnecessary delegation of congressional war powers to the executive branch. The president already has authority to use force against imminent threats under his Article II self-defense powers.

Daskal and Healy’s views reflect a bipartisan consensus that has emerged among national security law experts on the need for a tailored ISIL AUMF that also sunsets and supersedes the 2001 AUMF. For more information, see Human Rights First’s factsheet on the administration’s ISIL AUMF proposal, a statement of principles by national security law experts, and a bipartisan op-ed on the five elements that should govern any U.S. authorization of force.

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Published on April 9, 2015

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