Getting to an Effective and Well-Defined AUMF for the Islamic State

Posted February 25, 2015

Getting to an Effective and Well-Defined AUMF for the Islamic State

February 25, 2015

This week, Congress is beginning the process of considering a new authorization for the use of military force (AUMF) against the Islamic State. The authorization recently proposed by the White House has positive and negative aspects, as NSN has noted previously. But with additional analysis coming out about the Administration’s proposal and Secretary Kerry’s Senate testimony yesterday, the conversation is advancing and many details deserve closer consideration. First, the extent to which the proposed AUMF would authorize U.S. ground forces is still very unclear. Second, new troubling questions are being raised about the conditions in which the Administration thinks it would have the authority to strike Assad’s forces under a new AUMF – something very different than the kind of war the White House has so far discussed. Third, going forward, Congress should look carefully at the implications of authorizing attacking Islamic State associated forces without geographic limits and extending the authorization to “successor entities.” Finally, ensuring that the current or future presidents cannot bypass the limits contained in an Islamic State AUMF by abusing other AUMFs, such as the 2001 law, is an important goal to achieve in the statute.

Secretary Kerry has clarified his interpretation of “enduring offensive ground combat operations,” but the legal meaning of the term otherwise remains unclear. Secretary Kerry clarified aspects of his interpretation of “enduring offensive ground combat operations,” a phrase contained within the Administration’s AUMF proposal denoting the kind of operations that would be prohibited. In testimony yesterday, he said, “If you’re going in for weeks and weeks of combat, that’s enduring…If you’re going in to assist somebody and [conduct] fire control and you’re embedded in an overnight deal, or you’re in a rescue operation or whatever, that is not enduring.” However, these are Kerry’s views in his current capacity as Secretary of State. They are not necessarily the perspective of other members of the Administration or of the next president – and are not included in any legislative text.

And, as Sen. Barba Boxer (D-CA) explained, the phrase itself still has no clear, collectively recognized meaning. “I asked the CRS [Congressional Research Service] if they could analyze this word ‘enduring,’” Boxer said yesterday. “Here’s what they say. This is incredibly important for you to hear. ‘It seems doubtful that a limitation on ‘enduring offensive ground combat operations’ would present sufficient judicially manageable standards by which a court could resolve any conflict that might arise between Congress and the executive branch over the interpretation of the phrase or its application to U.S. involvement in hostilities.’ This is the CRS, they don’t have a dog in the fight.” [John Kerry and Barbara Boxer, 2/24/15]

Greater clarity is needed on under what conditions the Administration thinks it would have the authority to target Assad’s forces in Syria.

The Administration has been unclear about what authority it thinks it would have under a new AUMF to target Assad: In yesterday’s hearing, Secretary Kerry and Sen. Bob Corker (R-TN) had an inconclusive exchange on what might authorize the United States to strike the Assad regime and why. Sen. Corker interpreted Kerry’s comments to mean that “our authorization should authorize the administration to go against Assad when they’re doing things that take on the Free Syrian opposition [who are important to the strategy of destroying the Islamic State].” Kerry attempted to clarify, but ultimately left the question unresolved as he seemed to try to have it both ways, saying: “That’s not what I said. Assad is an entirely different component of this…What I said was they have to be authorized – the authorization is such that defending those that are engaged in the fight against ISIL, it seems to me, is an important part of defeating ISIL. But that’s a debate about how that’s implemented that is taking place in the administration right now. The president hasn’t made a final decision on that. I think we need to be discussing that as the AUMF comes together, but what is important is that the President have as much leeway as possible in the three years he’s asked for to be able to get the job done.” [Bob Corker and John Kerry, 2/24/15]

Granting this and the next president the authority to strike Assad would be a serious mistake: As Congress and the Administration clarify this issue, it is critical that no authority be given that could be employed against the Assad regime, which would open the door to effectively adopting the Syrian civil war as a problem for the United States to solve by military force. As NSN explained in a recent policy paper on U.S. strategy towards the Islamic State, such a policy would invite “large-scale intervention [that] would militarily attempt to force Assad into a settlement and commit the United States to a costly, open-ended conflict. This would divert U.S. efforts from counterterrorism to an intractable civil war in which the United States does not have a vital interest. The U.S. intervention would almost certainly be met with escalation by Assad’s allies, exacerbating the humanitarian crisis in the Levant without providing a resolution to the war.” [NSN, 2/15]

Congress needs to understand that by authorizing use of force against the Islamic States’ associated forces, they could be opening the door to a conflict spanning regions across Africa and Asia. The President’s proposed AUMF would authorize use of force against the “associated forces” of the Islamic State, which it defines as “individuals and organizations fighting for, on behalf of, or alongside ISIL or any closely-related successor entity in hostilities against the United States or its coalition partners.” Depending on how loosely this is interpreted, and particularly how “coalition partners” is interpreted, this could give future presidents an opening to expand the war against potential Islamic State affiliates from North Africa to Southeast Asia. The Nation explains, “this is not a theoretical issue, and it’s not just countries that ‘neighbor’ Iraq and Syria. The New York Times reported Sunday that US intelligence officials claim ISIL is moving outside Syria and Iraq ‘to establish militant affiliates in Afghanistan, Algeria, Egypt and Libya’ and that extremists have organized under the ISIS banner in Jordan, Lebanon, Saudi Arabia, Tunisia and Yemen. Elsewhere, Agence France Presse has reported that in the Philippines, two rebel groups have pledged allegiance to ISIL.” [The Nation, 11/20/15]

The simplest solution to avoiding the potentially significant expansion of the conflict beyond what is currently under consideration – even beyond the countries listed above, depending upon the future development of Islamic State affiliates – is to include well-defined geographic limits outside of which force would not be authorized until further permission is granted by Congress.

Authorizing use of force against successor entities without geographic limits opens the door to war of unpredictable scope and sets a bad precedent. Ryan Goodman, professor at New York University Law School, explains that “the president’s proposal would go a step further than earlier measures by authorizing force against associated forces of ‘any closely-related successor entity’ to the Islamic State. In other words, the president is asking Congress to endorse his theory that looped in the Islamic State under the 2001 AUMF as a ‘successor’ to al Qaeda. More to the point, he’s asking Congress to authorize force against ‘associated forces’ of the Islamic State’s future successors. As Harold Koh, Obama’s former legal advisor in State Department [sic] has written, such a theory involves ‘a dangerous methodology whereby the current and future Presidents can cite ‘factual evidence of common [al Qaeda] DNA’ to go to war with groups far removed from the original authorization of force.’” [Ryan Goodman, 2/12/15]

Going forward, it is crucial that Congress make clear that any Islamic State AUMF supersedes previous authorizations in order to stop this or future Presidents from abusing the law to get around limits contained in an Islamic State AUMF. Previously, the White House has inappropriately claimed that the 2001 AUMF authorizes the war against the Islamic State, and that the 2002 AUMF could also be used. A letter signed by 16 organizations, including the ACLU, Constitution Project, and National Security Network, explains that “If Congress fails to tackle both the 2001 AUMF and the 2002 Iraq AUMF in any new ISIL-focused AUMF it risks simply adding to what has become a tangled and ambiguous web of war authorities from which a president might pick and choose without explanation. In other words, even if Congress were to pass legislation that clearly and precisely defines the President’s power to combat ISIL, those statutes lurk as opportunities to try to circumvent Congress’ will. Going forward, clarity is at an absolute premium.”

The letter also explains why it was wrong for the White House to claim the 2001 AUMF applied to the Islamic State: “There is no evidence that when Congress authorized the invasion of Afghanistan in 2001—targeting those responsible for the September 11 attacks—or the invasion of Iraq in 2002—targeting the then government of Iraq and its claimed development of weapons of mass destruction—Congress intended to delegate to whoever might be president more than a decade later the sole authority to decide that the United States should join in a new war; one that at the time had not begun, was not foreseen, and involves parties that did not exist.” [Coalition Letter, 2/24/15]