Will Congress Take the Lead in the War Against ISIL?

In President Obama’s final State of the Union address he called out Congress for failing to authorize the war against Islamic State of Iraq and the Levant (ISIL). “If Congress is serious about winning this war, and wants to send a message to our troops and the world, you should finally authorize the use of military force against ISIL,” he told them. “Take a vote.”

Congress has shown little inclination to debate a war authorization, much less vote on one. But the administration’s plans to proceed with or without action from Congress, reiterated in the State of the Union, provide little incentive for Congress to work through the thorny drafting issues involved in crafting an authorization capable of garnering broad bipartisan support.

Nevertheless, The Hill and Politico recently reported that Speaker of the House Paul Ryan (R-WI) is testing the waters to determine whether he can break through the gridlock in Congress. His goal? To take charge of defining the mission against the Islamic State as part of a new Republican policy slate in 2016. Since taking the reins in the House a few months ago, Speaker Ryan has reportedly been meeting with national security leaders to discuss what House Republicans would like to see in an ISIL war authorization and where the major points of contention lie. And he tasked key committee leaders, including House Foreign Affairs Committee Chairman Ed Royce (R-CA), with conducting “listening sessions” to hear from committee members.

So what are the main points of contention? For one, according to Representative Mac Thornberry (R-TX), Chairman of the House Armed Services Committee, some are wary of appearing to approve President Obama’s approach to combating ISIL. But members of Congress who disapprove of the administration’s approach should be even more eager to exercise their constitutional prerogative by passing an AUMF that defines the mission objectives and improves executive branch accountability through reporting and transparency provisions.

Another point of contention is whether to include a sunset provision, which some members fear would end the war prematurely. But including a sunset for the authorization does not mean that the war must end on that date. Rather, the sunset ensures that Congress will have the opportunity to adjust the authorization if necessary as the situation on the ground evolves. Congress may decide that military force is no longer warranted at that time, but it is not required to do so.

The biggest disagreement, however, is over whether the authorization should limit the use of ground forces. Some members are opposed to authorizing another major ground war while others are concerned about tying the next president’s hands. Last month, Representative Adam Schiff (D-CA), proposed a compromise that would not prohibit the deployment of ground forces in a combat role, but would require the president to notify Congress. Congress could then use expedited procedures to reject such a move if deemed necessary.

National security experts and former officials with differing opinions on how to approach a war authorization against ISIL (see here and here) recently came out in support of Schiff’s compromise approach (see the endorsements by Jack Goldsmith here, Marty Lederman here, and Jennifer Daskal and Steve Vladeck here). This support demonstrates that crafting a compromise authorization that breaks through the gridlock is possible. News reports say that House Foreign Affairs Committee ranking member Eliot Engel (D-NY) is also exploring a proposal that seeks to address the concerns of all sides.

Passing a bipartisan war authorization would be no easy feat in the current environment, but these signs suggest that Speaker Ryan may be able to forge a consensus after all. That consensus AUMF should:

• 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; and
• Set a sunset date for both the new ISIL AUMF and for the 2001 AUMF to ensure continued congressional support for the use of force as the conflict evolves.

Our recommendations (explained further in this Fact Sheet) are in line with the AUMF principles adopted by a group of national security law experts that have since garnered bipartisan support.