Exhibit #1: How Not to Authorize Armed Conflict

Rep Frank Wolf (R-VA) is planning to introduce a new force authorization when Congress returns from recess next week. Entitled an “Authorization for Use of Military Force Against International Terrorism Act,” it would authorize global and indefinite war against terrorism. The operative language is here:

SEC. 2. AUTHORIZATION FOR USE OF ARMED FORCES.

(a)                IN GENERAL.—The President is authorized, with the close consultation, coordination, and cooperation with NATO and regional allies, to use all necessary and appropriate 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 with such terrorist groups, regional affiliates, or emerging terrorist groups, in order to eliminate all such terrorist groups and prevent any future acts of international terrorism against the United States or its allies by such terrorist groups, countries, organizations, or persons.

So just to be clear what we are talking about:

  • 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 authorize the use of force against ISIS.
  • It would cover al Shabaab, even if it were no longer considered an al Qaeda affiliate.
  • 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.

This is even broader than the authorization initially proposed by the Bush administration – and rejected by Congress – in the heated days immediately following the September 11th attacks. Whereas the Bush administration sought to authorize the use force to “deter and pre-empt any future acts of  terrorism or aggression against the United States,” this proposal authorizes uses of force against emergent entities that “share a common violent extremist ideology,” without any requirement that the groups were even planning or plotting an attack on U.S. persons or the U.S. homeland.  And it authorizes the use of force to “eliminate” such groups — thus authorizing the continued uses of force even when the groups are so decimated that they no longer have the capacity or intent to do us, or even our allies, harm.

In sum, the proposed legislation would, for the first time in history, authorize the use of force — virtually unlimited — against groups and individuals before they had struck us, or even attempted or planned to do so.  In effect, it would authorize the initiation by the United States of countless armed conflict around the globe.  Needless to say, this is not at all what Steve and I had in mind when we suggested a narrowly tailored authorization to deal with the specific threat posed by ISIS.

If we really want to declare a global war against all violent extremism, this is I guess the way to do so. But if we recognize that uses of lethal force, while sometimes necessary, should be a last, not first resort; that excessive use of force, and even threats of force, risk creating more enemies than friends; and that restraint is essential to our legitimacy and influence in the world, then this is not an effective foundation upon which to protect our national security. 

About the Author(s)

Jennifer Daskal

Associate Professor at American University Washington College of Law Follow her on Twitter (@jendaskal).