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POLICY BRIEF – Navigating an AUMF for the Islamic State: Toward a High-Standard Authorization

Policy Brief by Bill French and J. Dana Stuster
September 18, 2014 

Read the full NSN policy brief.

Policymakers in Congress and the Executive Branch are rightfully focused on addressing the threat posed by the Islamic State. The White House maintains that it already possesses the legal authority for armed conflict against the Islamic State under the 2001 and 2002 Authorizations for Use of Military Force (AUMF). This view is mistaken, and has received a critical reception from legal experts and members of Congress, some of whom have called for a new AUMF. In the past week, several new authorizations have already been proposed.

If Congress is to authorize the armed conflict, lawmakers should use this opportunity to construct a narrow AUMF for the sole purpose of countering the Islamic State that would set a high standard in terms of scope and duration for authorizations against terrorist organizations in the future. Constructing such a high-standard AUMF is crucial to preventing a new era of legal problems and uncertainty in executing major counterterrorism operations, like those that have plagued the 2001 AUMF over the past decade with respect to al-Qaeda.

In navigating an Islamic State AUMF, Congress should pursue two tasks. First, Congress should ensure that the Administration meets its burden of justifying an escalation of conflict and demonstrates the soundness of its developing, but incomplete, strategy. This means the Administration should adequately fill in the gaps of its strategy as articulated thus far, including: clarifying its objective of destroying the Islamic State; ensuring the Iraqi government can govern inclusively to ensure its legitimacy vis-à-vis minorities; clarifying that moderate elements in Syria can be made capable and willing to counter the Islamic State; and outlining how legitimate political authority can be extended over territory presently held by the Islamic State in Syria. Without answering at least these questions, the reasonable prospects of success for U.S. efforts are in question.

Second, if the Administration can meet its burden, any AUMF against the Islamic State should be constructed to take into account American interests relevant to the appropriate scope of the conflict. This would mean constructing an AUMF to include precise objectives, specific limits on the use of force, and regular reporting requirements. Such a high-standard approach is especially appropriate given the likelihood that the campaign against the Islamic State will continue into the tenure of the next president. Key limitations can help ensure Congress and the American people retain a strong check on the next president’s war policy so that he or she does not enter office free to fundamentally change the nature or scope of the conflict.

Specifically, a high-standard Islamic State AUMF would include:

1. Realistic, achievable objectives, including: preventing Islamic State attacks against the United States; protecting the sovereignty of American partners against the Islamic State; and destroying the capacity of the Islamic State to control populated areas.

2. Limiting the authorization to be specifically directed against the Islamic State and to not include the authority to attack associated forces outside of Iraq and Syria.

3. A sunset clause that expires or forces the renewal of the authorization after 12 months to ensure continued reassessment of the conflict.

4. A prohibition on the deployment of regular ground forces.

5. Robust reporting requirements, including on metrics of success, campaign progress, risks of blowback, the political performance of American partners, and civilian casualties caused by the United States.

6. Assurances of the applicability of human rights laws to U.S. assistance to foreign partners in the conflict, especially the Leahy Law.

Read the full NSN policy brief.

In the News

• NSN Islamic State AUMF Brief Cited in POLITICO Morning Defense, September 19, 2014
• NSN Islamic State AUMF Brief Quoted by Lawfare, September 18, 2014