While Insisting on a Need for Clarity, Perry’s AUMF is Anything but Clear

Amidst the United States’ continued efforts to fight the Islamic State in Iraq and Syria (ISIS), Representative Scott Perry (R-PA) is the latest member of Congress to propose an authorization for the use of military force (AUMF) against the group.

With the Obama Administration maintaining that it already has the authority to fight ISIS under the 2001 AUMF (against al Qaeda and the Taliban) and the 2002 Iraq AUMF (targeting the Saddam Hussein regime), all has been relatively quiet on the congressional front since Senate Majority Leader Mitch McConnell (R-KY) introduced an overly broad draft in January, which mirrored a December 2015 proposal from Senator Lindsey Graham (R-SC).

Although it didn’t seem possible, Perry’s AUMF is actually broader.

Described as an AUMF “Against Islamic Extremism,” Perry’s bill folds the 2001 and 2002 AUMFs into a new law, authorizing force against al Qaeda, the Taliban, and ISIS, then repealing those two instruments. Two other proposals have also sought to “consolidate” the authorization of force into a single vehicle—one by Representative Adam Schiff (D-CA) and one published by four editors of the Lawfare blog, Ben Wittes, Jack Goldsmith, Bobby Chesney, and Matthew Waxman.

However, this is where the similarities with these AUMFs end; Perry’s bill not only covers al Qaeda, the Taliban, and ISIS, but it also throws in al Qaeda in the Arabian Peninsula (AQAP), al Qaeda in the Islamic Maghreb, al Shabab, Boko Haram, al Nusrah Front, the Haqqani Network, Houthis, Khorasan Group, Hamas, and Hezbollah. On top of this, Perry’s draft also authorizes military force against “any substantial supporters, associated forces, or closely-related successor entities to any of such organizations.” None of these terms is defined in the bill.

The Obama Administration acknowledged last year that under the 2001 AUMF, it has been conducting operations against AQAP in Yemen, al Nusrah Front and the Khorasan Group in Syria, and members of al Qaeda in Somalia and Libya. However, groups like Boko Haram in Nigeria and Hezbollah in Lebanon are not engaged in an armed conflict with the United States. If any of these groups plotted an imminent attack against the United States, existing domestic and international law allows the government to respond; an AUMF for hypothetical threats is not only unwise, it’s unnecessary.

When discussing his proposal, Perry spoke of the need for clarity, saying “[l]et’s just be clear, especially when peoples’ lives are on the line.” Paradoxically, his proposal has the opposite effect: by authorizing force against groups like Boko Haram and Hezbollah, it conflates the wars the United States is fighting with conflicts or tensions involving other groups and nations around the world. By failing to define key terms like “substantial supporters” and “closely-related successor entities,” Perry’s AUMF further obscures whom the president is authorized to use force against, potentially operating as a blank check against anyone, anywhere.  For example, would Perry’s AUMF authorize war with Iran, a historical “substantial supporter” of Hezbollah?

Perry’s draft also does not require the administration to provide any information to Congress and the American people on the scope and progress of the missions it authorizes. Even McConnell’s and Graham’s AUMFs require reporting every 60 days on “matters relevant” to the resolution.

For some time now, there has been a bipartisan consensus among national security law experts on the necessary elements of an ISIS 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 ISIS to prevent confusion or overlap
  • Set a sunset date for both the new ISIS 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.

Of these elements, Perry’s AUMF meets only one: the requirement to comply with international law. By authorizing “necessary and appropriate force,” the proposal implicitly requires the president to ensure that the use of force complies with international law (see Hamdi v. Rumsfeld, 542 U.S. 507, 520– 21 (2004)). However, Perry’s draft requires the president to determine what is “necessary and appropriate force,” an added element that is confusing and unnecessary.

Perry is right that any ISIS-specific AUMF must be clear. The 2001 AUMF, enacted days after the 9/11 attacks, has been interpreted far beyond what Congress intended, to apply to groups that did not even exist at the time. It has enabled policies that have eroded human rights protections and the rule of law, damaging U.S. international standing and security. Perry’s proposal, however, does not provide this clarity.

Should Congress move forward with an ISIS AUMF, it should ensure that any proposal accords with this set of principles by national security law experts, which has garnered bipartisan support. Human Rights First has produced a set of recommendations, which satisfy these principles, available here.

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Published on March 7, 2016

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