How (and How Not) to Consider a Possible AUMF Against the Islamic State

Posted September 8, 2014

As the debate continues about how to respond to the Islamic State, Washington is already showing signs of considering an Authorization for Use of Military Force (AUMF) to authorize expanded operations in Iraq and potentially Syria. While any expanded operations should be specifically authorized by Congress, it remains premature to consider an AUMF to deal with the Islamic State as the Administration has yet to fully articulate a strategy, although it appears President Obama may take a further step towards doing so on Wednesday during a scheduled public address. Nonetheless, there are a number of basic considerations for assessing any potential AUMF in the future: namely, any such measure should apply the lessons of the much maligned 2001 AUMF by being as specific as possible, include clear limitations, and feature robust reporting requirements. But despite there being no full strategy yet to guide congressional consideration of a counter-Islamic State AUMF, proposals are already developing. One such proposal by Rep. Frank Wolf (R-VA) offers a crash course on what not to do by proposing to authorize a dramatic escalation of conflict to include organizations far beyond the Islamic State, disregarding any limit in time and using ill-defined terms to authorize force with alarming implications.

Any potential authorization against the Islamic State should apply lessons learned from the 2001 AUMF:

Any potential AUMF should be as specific as possible and include the kinds of limiting mechanisms historically employed by Congress. The 2001 AUMF is unique in that it does not include any of the limiting mechanisms used throughout history by Congress in authorizations for use of force or declarations of war. A recent report by NSN on the 2001 AUMF includes historical analysis of AUMFs throughout American history, noting “Previously, Congress has limited the scope of authorized use of force to specific durations of time, a defined geography, or a named enemy, and has frequently set limits on the kinds of operations or forces that can be employed. Of the 35 instances that Congress has authorized the use of military force, 60 percent contained geographic limitations, 43 percent named the enemy, 37 percent limited the kinds of military operations or forces authorized to be employed, and 23 percent contained an expiration date. While 51 percent of such authorizations included just one of the previous four types of limitations, the 2001 AUMF is the sole case in American history that includes none. While such limits by no means guarantee that force will be used ethically and in line with American national security interests, they can help restrict the scope for potential misuse of American military power, especially if multiple kinds of limits are used in combination.”

In line with these limiting mechanisms, any Islamic State AUMF should be limited in geography, include a sunset clause, and restrict itself to applying against the Islamic State specifically and not to possible “associated” organizations. Operational limitations should also be included by regulating or explicitly not authorizing the use of rotational ground forces. [National Security Network, 8/14]
Any potential AUMF should include robust reporting requirements and require special approval to target associated forces of the Islamic State. Operations pursuant to the 2001 AUMF have controversially expanded against “associated forces” of core al Qaeda. Congress has also considered itself under-informed of those operations. To avoid these problems in any potential Islamic State AUMF, former State Department legal adviser Harold Koh urges that Congress should require “the president to return to Capitol Hill for express approval should he wish to use force against any armed groups ‘associated with ISIL’ or seek to introduce U.S. ground troops into the territory of Iraq or Syria as part of the conflict against ISIL. The resolution should include robust consultation and reporting requirements to ensure that the executive branch regularly provides information to relevant congressional committees, publicly whenever possible, and in closed classified sessions when absolutely necessary. These reports should identify when, where and under what circumstances lethal force has been used pursuant to the authorization, and how many civilian casualties have resulted from those actions.” [Harold Koh, 8/29/14]

One Islamic State AUMF proposal thus far is “Exhibit #1” of “How not to Authorize Armed Conflict.” Rep. Frank Wolf (R-VA) is planning to submit an AUMF to deal with the Islamic State that would substantially expand armed conflict against terrorist organizations beyond the Islamic State. It features a number of other troubling provisions as well. The proposal would authorize force against “those countries, organizations or persons associated with or supporting terrorist groups, including al Qaeda, and its regional affiliates, the Islamic State of Iraq and Syria, al Shabaab, Boko Haram, and any other emerging regional terrorist groups that share a common violent extremist ideology.”

There are multiple serious problems with such a broad authorization. Jennifer Daskal, law professor at American University, explains: “It would authorize the use of force against all of al Qaeda’s regional ‘affiliates’ — a term that is broader than ‘associated force’ and would presumably cover, among other entities, Al Qaeda in the Arabian Peninsula, Al Qaeda in the Magreb (operating in Mali) , al Shabaab (operating in Somalia), as well as the range of al Qaeda affiliates in Yemen, Syria, Libya, and elsewhere…It would cover Boko Haram, despite the lack of any suggestion on the part of the Executive that it needs or wants to attack Boko Haram…It would cover unnamed emergent terrorist groups, allowing the Executive to unilaterally and perpetually expand the list of entities with which the nation is at war based solely on their ideology, and without any evidence that they had, attempted to, or even planned to attack the United States…It would authorize the use of force against all those ‘supporters’ of such groups – a term that if read broadly could include those providing medical assistance or speaking out in support of the groups, and perhaps even journalists that refused to disclose information about the groups…And it would give the executive carte blanche to determine the types of force that could be used (i.e,. no limits on ground troops), and where such uses of force would take place.” [Jennifer Daskal, 9/3/14]

Any Islamic State AUMF should go through the regular legislative process, receive full debate and not be subject to short-cuts or be tacked on to other legislation. There are reports that counter-Islamic State authorizations could be included in the Senate’s National Defense Authorization Act (NDAA) as amendments, potentially including efforts being developed by Senators Jim Inhofe (R-OK) and Bill Nelson (D-FL). However, debate on amendments is limited. Additionally, this would muddle the vote by bundling the AUMF with the extensive and often vital provisions in the NDAA. Instead, any potential AUMF should be a standalone bill and receive full, extensive debate appropriate to the authorization of use of force.