McConnell Fast-Tracks Overbroad ISIL AUMF Proposal
In the latest round of congressional activity on an authorization for the use of military force (AUMF) against the Islamic State in Iraq and the Levant (ISIL), last night Senate Majority Leader Mitch McConnell (R-KY) began a process to fast-track a broad authorization. Using the Rule 14 procedure to bypass the Senate Foreign Relations Committee (which passed a tailored ISIL AUMF in December 2014), McConnell put the proposal on the calendar for consideration by the full Senate.
McConnell’s measure, co-sponsored by Senators Lindsey Graham (R-SC), Daniel Coats (R-IN), Orrin Hatch (R-UT), and Joni Ernst (R-IA), is almost identical to the ISIL AUMF Graham released last December. Representative Tom Cole (R-OK) introduced a similar measure in the House last week.
The proposal authorizes the president to “use all necessary and appropriate force in order to defend the national security of the United States against the continuing threat posed by [ISIL], its associated forces, organizations, and persons, and any successor organizations.”
Other than the congressional reporting already required by the 1973 War Powers Resolution, the only additional provision for congressional oversight is a requirement that the president submit a report to Congress at least every 60 days “on matters relevant” to the AUMF.
McConnell’s proposal fails to define terms like “associated forces” and “successor organizations.” Such ambiguous terms could be misread to apply to groups that Congress does not intend. Combined with the menial provisions for transparency and congressional oversight, this draft is at odds with the bipartisan consensus among national security law experts on the necessary elements of an ISIL AUMF. These experts call for any new AUMF to:
- Clearly define the mission objective and the enemy
- Include robust reporting and transparency requirements sufficient to keep both Congress and the public informed
- Require compliance with U.S. obligations under international law
- Clarify that the authorization is the sole source of statutory authority to use force against ISIL to prevent confusion or overlap
- Set a sunset date for both the new ISIL AUMF and for the 2001 AUMF (which authorized force against those responsible for the 9/11 attacks) to ensure continued congressional support for the use of force as the conflict evolves
Two things McConnell’s draft gets right are in fulfilling the recommendations to include a mission objective and require compliance with international law. McConnell’s AUMF (unlike other proposals, including President Obama’s) does include an objective (to defend the national security of the United States, etc.). Further, the reference to “necessary and appropriate force” in Section 2(a) implicitly requires the use of force to comply with the law of armed conflict and other U.S. obligations under international law (see Hamdi v. Rumsfeld, 542 U.S. 507, 520– 21 (2004)).
Other than this, the majority leader’s draft repeats the shortcomings of the 2001 AUMF. Passed days after the 9/11 attacks, the 2001 AUMF has been stretched far beyond Congress’s original intent to apply to groups that did not even exist at the time. It enabled policies that have eroded human rights protections and the rule of law, damaging U.S. security and global legitimacy.
Any ISIL AUMF must address these concerns. For Human Rights First’s recommendations on the essential elements of an effective ISIL AUMF, see our factsheet. These recommendations are in line with this set of principles by national security law experts, which have garnered bipartisan support.
