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Sec. Kerry’s difficult defense of 2001 AUMF application to ISIL–and Senators’ Disbelief

Wednesday’s Senate Committee on Foreign Relations (SCFR) hearing on ISIL presented an opportunity for the administration to defend its theory that the use of force against ISIL is covered by Congress’ 2001 Authorization for the Use of Military Force (AUMF). It didn’t go well.

A key exchange occurred between the Chair of the Committee Sen. Menendez and Secretary Kerry, followed by comments from Ranking Member Sen. Corker (video clip below and transcript below).

First, Secretary Kerry strangely emphasized that the 2001 AUMF applies to “associated forces” (see 2:08 in the video clip). But that is not the administration’s argument. As Marty Lederman (Just Security post) and Steve Vladeck (Lawfare post) have explained, the administration’s legal position is that ISIL is not an associated force, but is instead Al Qaeda itself (one of two splinter groups or a “successor model”). It would be a fool’s errand to try to claim ISIL is an associated force given the major breakup between AQ and ISIL. Indeed, Sen. Menendez interjected: “al-Qaida threw out ISIL.” Moreover, AQ’s affiliate in Syria and ISIL, it would be fair to say, have been engaged in an armed conflict against one another.

Second, by the time Secretary Kerry started to present a “successor”-type analysis, he seemed to have lost his audience. The Chair began by referring first to the 2001 AUMF and reminding Mr. Kerry that administration officials had recently testified before the committee that the 2002 AUMF should be repealed. Sen. Menendez then asked a pointed question: “How is it that the administration now thinks it can rely upon that for legal authority?” Secretary Kerry replied, “Mr. Chairman, how is it? It is because (pause) good lawyers within the White House, within the State Department, who have examined this extremely closely, have come to the conclusion across the board…” And then he began reading directly from the text of the 2001 AUMF.

Better to have led with a substantive argument and stated a rationale (and answer the part of the question about the 2002 AUMF). Sec. Kerry’s response also raises other questions. The administration lawyers came to the same conclusion “across the board”? That’s remarkable given that lawyers outside the government, including those who have previously served in the administration don’t exactly buy it. Also, did Mr. Kerry mean to refer just to the White House and the State Department? What about the Justice Department and the Office of Legal Counsel? Was excluding the DOJ a purposeful omission? [It should be noted that Sen. Boxer remarked in defense of Mr. Kerry’s position: “I voted for the one in’01, and I’ve re-read it about six times. Mr. Secretary, the lawyers I’ve consulted with believe that you have the authority to go after ISIL. It’s very clear. You read the parts. If people listened to you, you read the parts that are correct.”]

Regardless, Sen. Menendez expressed his incredulity: “I appreciate your ability as a former prosecutor and a gifted attorney to try to make the case. I will tell you that at least from the chair’s perspective, you’re going to need a new AUMF.” Sen. Corker added: “I’m disappointed that you as secretary of state, after being chairman of this committee, after espousing the views that you have espoused in the past out of convenience and parsing legal words would make the statement you just made.” That said, Sen. Corker may have also been referring in part to Mr. Kerry’s third difficult moment.

Third, Secretary Kerry almost implored Congress to take the lead on drafting an AUMF—a role you might expect the White House to perform. He said, “but we know you are thinking about retooling the AUMF. And we welcome — we would like Congress — please do this” (if you listen to the clip, you’ll see the emphasis is in the original). Yet at the same time he stated baldly that the President doesn’t need the Congress to act either. During the afternoon’s session, that line—we welcome your input, but we’ll act the same with or without it—did not sit well with the Senators (see statements by Senators Corker, Flake, Menendez, and Shaheen). Sen. Corker reserved his harshest words for that part of the administration’s position saying it was “exercising the worst judgment possible.”

Lets’ be fair to Secretary Kerry. He was stuck with a weak case overall. And the Senators may have given this particular messenger a harder time—having to listen to the Executive Branch’s position from the former Chair of their own committee.

A transcript of the exchange follows.

SEN. MENENDEZ: I don’t — I don’t dispute that you’ve had in the short term an impact to stem their advances, at least within the region that they’re in. My question, though, is — and no one reasonably can come from the administration and suggest that the ultimate goal, which is taking out this network, is not going to be a multi-year effort.

SEC. KERRY: It’s a multi-year effort. The president has already said that.

SEN. MENENDEZ: OK. With that as a reality, then let me turn to the AUMF. How is it that the administration believes that — and I support its efforts, but how is it that the administration believes that the 9/11 AUMF or the Iraq AUMF provide the authorization to move forward whether the Congress decides to or not?

You know, it was not too long ago that members of the administration appeared before the committee. And when I asked them — I was headed towards repealing the Iraq AUMF, and there was administration witnesses who believed that it should be repealed on behalf of the administration. How is it that the administration now thinks it can rely upon that for legal authority?

SEC. KERRY: Mr. Chairman, how is it? It is because good lawyers within the White House, within the State Department, who have examined this extremely closely, have come to the conclusion across the board that the 2001 AUMF, which says all necessary and appropriate force against those nations, organizations or persons responsible for 9/11; those who harbored such organizations or persons; to prevent future acts of international terrorism against the United States by such persons or organizations — includes al-Qaida. It’s always been interpreted as including al-Qaida. And al-Qaida and —

SEN. MENENDEZ: Well, al-Qaida threw out ISIL (inaudible).

SEC. KERRY: But al-Qaida and associated forces — that is the language: al-Qaida and associated forces.

Now, al-Qaida — ISIL began as al-Qaida in 2005 in Iraq, 2004. ISIL was al-Qaida in Iraq. And it only became this thing called ISIL a year ago. And it only became that out of convenience to separate themselves in an internal fight but not because their thinking changed, not because their targets changed, not because their actions changed. They are the same people doing — the same people that we were prepared to and were attacking for all of those years. And a mere publicity stunt to separate yourself and call yourself something else does not get you out from under the force of the United States law that is targeting you.

SEN. MENENDEZ: I appreciate your ability as a former prosecutor and a gifted attorney to try to make the case. I will tell you that at least from the chair’s perspective, you’re going to need a new AUMF, and it will have to be more tailored, because I don’t want to be part of 13 years later and multitude of countries that have been used in this regard for that to be the authority.

And I think our goals are the same. I think we need to get to a different set of authorities. And I look forward to working with my colleagues —

SEC. KERRY: Not only are our goals the same, Mr. Chairman, but we know you are thinking about retooling the AUMF. And we welcome — we would like Congress — please do this. We want that to happen. We’re not going to make our actions dependant on it happening, but we will work with you as closely as we can and should in order to tailor an AUMF going forward. And we look forward to that opportunity.

SEN. MENENDEZ: Senator Corker.

SEN. CORKER: Thank you, Mr. Chairman. And I just want to say, as I’ve said to you personally, we have three senators — president, vice president, secretary of state — that are exercising terrible judgment right now. And to say that you’re going to do this regardless of what we say, you’re not going to ask for buy-in by the United States Senate or House of Representatives on behalf of the American people in a conflict that you say is going to be multi-year, some people say a decade, taking us into another country with a different enemy is exercising the worst judgment possible.

And so I’ve said this to you as strongly as I can personally. That’s in essence what you’re saying to the chairman right now. Saying if Congress wants to play a constructive role we would welcome that to me is a political game. And I’m disappointed that you as secretary of state, after being chairman of this committee, after espousing the views that you have espoused in the past out of convenience and parsing legal words would make the statement you just made.

 

 

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About the Author

is co-editor-in-chief of Just Security. Ryan is the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law. Follow him on Twitter (@rgoodlaw).