Harold Koh on the International and Domestic Legal Options for Containing ISIL

Just Security’s Harold Koh has a must-read piece in Politico, analyzing the legal and policy choices for the President to confront ISIL. Harold stakes out several important positions including:

On Article II authority:

“President Obama can hardly extend a conflict with ISIL to Syria based on claims of inherent constitutional authority, when he rightly criticized the Bush administration for pursuing a ‘Global War on Terror’ based on similar sweeping claims.”

On the need for the President to go to Congress for a new AUMF:

“To secure a domestic legal ground for action, the administration should engage with Congress to develop an ISIL-specific AUMF.”

On the purpose of the military mission (containment):

“We should ‘re-contain’ ISIL by using military force to stop it from metastasizing and ‘shrink ISIL back into ISIS’ as a smaller, less ambitious non-state actor that limits its aspirations and activities to Syrian territory.”

Harold also analyzes the international legal basis for different missions, the scope of existing AUMFs, the conditions that Congress should place on the ISIL-specific AUMF, and more.

Here’s the link to the full Op-Ed. 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). Follow him on Twitter (@rgoodlaw).