Senate Foreign Relations Committee Should Consider Narrowly-Tailored AUMF in Fight Against ISIS

Washington, D.C. – As the Senate Foreign Relations Committee considers congressional action for force against the Islamic State in Iraq and Syria (ISIS), Human Rights First urges members of Congress to create an authorization for use of military force (AUMF) that is narrowly-tailored and time-bound. The committee should adopt clear language that limits the authorization to the currently-identified enemy with whom the United States is engaged in armed conflict. The committee should also use this opportunity to sunset the 2001 AUMF against al-Qaeda and the Taliban, as combat operations are winding down in Afghanistan.

“While Secretary Kerry testified this week that the administration is largely in agreement with the authorization put forward last week by Senator Menendez—a proposal that rightly authorizes force specifically against ISIS—some of the secretary’s comments left the door open for an authorization that could expand in unintended ways over time,” said Human Rights First’s Tad Stahnke.  “Secretary Kerry should be careful not to propose language that would create an AUMF with potentially dangerous consequences.”

The organization notes that Sen. Menendez’s proposed AUMF includes overly-broad and unnecessarily vague language regarding who may be targeted under the authorization, which raises the prospect that this or a future administration could interpret it as applicable to organizations or groups not intended by Congress.

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 AUMF, enacted in the days following the 9/11 attacks, nor the 2002 AUMF, which targeted Saddam Hussein’s regime, clearly applies 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.

The organization urges Congress to sunset the 2001 AUMF against al Qaeda and the Taliban as combat operations wind down in Afghanistan. Establishing a sunset now will require Congress and the administration to consider at some near future date whether the 2001 AUMF is an appropriate and lawful authorization to deal with threats to the United States from al Qaeda and the Taliban.

As the Senate considers different options for a new authorization in the fight against ISIS, Human Rights First recommends that any new AUMF should:

  • Define the specific enemy, the length of time that force is authorized, and include geographic limits;
  • Specify mission objectives;
  • Ensure greater transparency and congressional oversight through regular reporting by the administration;
  • Comply with international law;
  • Sunset the 2001 AUMF; and
  • Repeal the 2002 AUMF.

Last month, a nonpartisan group of top national security lawyers released a  statement of principles designed to guide congressional authorization in the continued fight against ISIS. The signatories of that statement included: Rosa Brooks, Professor of Law, Georgetown University Law Center; Sarah H. Cleveland, Louis Henkin Professor of Human and Constitutional Rights, Columbia Law School; Jennifer Daskal, Assistant Professor of Law, American University Washington College of Law; Walter Dellinger, Partner, O’Melveny & Myers LLP; Ryan Goodman, Anne and Joel Ehrenkranz Professor of Law, New York University School of Law; Harold Hongju Koh, Sterling Professor of International Law, Yale Law School; Marty Lederman, Associate Professor of Law, Georgetown University Law Center; and, Stephen I. Vladeck, Professor of Law, American University Washington College of Law.

“As the foreign relations committee marks up its AUMF bill, it should guard against creating an overbroad authorization like those we’ve seen in the last decade. Such authorizations are vague and fail to adhere to international law and human rights standards,” noted Stahnke. “This markup offers an opportunity for Congress to clarify with whom the United States is at war and ensure that the administration is operating under an appropriately narrow legal authorization.”

For a more detailed set of recommendations regarding congressional authorization in the fight against ISIS, see Human Rights First’s fact sheets, “Gaining Global Legitimacy and Promoting the Rule of Law: Necessary Inclusions for an AUMF to Combat ISIS, “Analysis of Recently Proposed ISIL AUMFs from Senators Paul and Menendez,”

Press

Published on December 11, 2014

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