President Obama and Congress Should Create Narrow Authorization in Fight Against ISIS

Washington, D.C. – In response to President Obama’s speech regarding U.S. action against the Islamic State of Iraq and Syria (ISIS), Human Rights First urges the president to not claim overbroad presidential authorities, and urges him to work with Congress to ensure that any authorization for use of force against ISIS is narrowly tailored and consistent with international law.

“The president is right to come to the American people and explain the distinct threat he believes ISIS poses and the actions his administration intends to take,” said Human Rights First’s Heather Hurlburt. “President Obama can’t indefinitely continue a bombing campaign using his inherent authorities. The White House now needs to work with Congress to ensure any force authorization from Congress is narrowly tailored to ISIS.”​

Human Rights First notes that ISIS is a prime example of how the threat posed by violent extremist groups has changed in recent years. Neither the 2001 nor 2002 congressional Authorizations for Use of Military Force (AUMF) clearly apply to ISIS.

A new, all-encompassing AUMF that does not distinguish ISIS from other terrorist groups or threats around the world is both legally problematic and bad strategy. Human Rights First urges the administration to follow tonight’s speech with further explanation to the American people about how and why the threat posed by ISIS requires military action as opposed to other effective counterterrorism responses, such as training, intelligence, diplomatic, and other methods.

As Congress continues to consider its role in authorizing and overseeing this conflict, members should resist the temptation to issue blanket authorizations for use of force that risk dragging the nation into costly, extended wars, make human rights violations more likely, and give fuel to enemies’ claims that America is at war with Muslims everywhere.

Human Rights First notes that Congress should ensure that any authorization for use of force is consistent with the laws of war, also known as international humanitarian law, and other applicable international law. The laws of war require that wartime authorities for targeting, detention, and trials like those conferred to the president by a congressional force authorization be limited to situations that rise to the level of an armed conflict, and not extended to disparate terrorist threats around the world.  An armed conflict exists under international law when there is a sufficiently organized armed group engaged in hostilities of sufficient intensity.  Situations involving groups elsewhere that are engaged in sporadic terrorist attacks do not rise to the level of armed conflict and therefore should not be the subject of wartime authorities, such as indefinite detention, military trials, or law of war-based lethal targeting.

While military force may be an element of counterterrorism outside the context of armed conflict, traditional law enforcement, rather than law of war tools should predominate in such circumstances. A congressional force authorization should:​

• Be narrowly tailored to the particular group or threat, and not extended to other groups or threats.
• Contain an explicit sunset provision that terminates the authority upon a certain date, or when certain conditions are met.
• Require any use of force by the executive branch to comply with all applicable international law.
• Mandate that the executive branch provide information on the numbers and types of casualties that result from, and legal justifications for, the use of force to the Congress and American people.

“Congressional force authorizations should be limited to situations that truly require war, not a free pass to use the full wartime power of our military wherever there is any potential terrorist threat around the world,” said Hurlburt.