[I have updated this survey to include new proposals and in light of this week’s Senate Foreign Relations Committee hearings on drafting an AUMF.]
With the President now seeking a specific congressional authorization for the use of force (AUMF) against ISIL, I thought it would be useful to catalog some of the positions that have emerged with regard to the optimal legislation. Below is a “spectrum” of perspectives on the range of authorities and conditions that Congress might adopt in drafting legislation in this area.
Position 1. Open-ended targets (not ISIL-specific) and with little or no constraints
1) Rep. Frank Wolf draft AUMF [H.R. 5415]:
Targets: would authorize the use of force against a long list of specified and unspecified targets: “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”
Conditions: includes no explicit reference to conditions or constraints; includes “all necessary and appropriate force;” includes authorization “with the close consultation, coordination, and cooperation with NATO and regional allies”
2) Richard Epstein, in a post at Just Security:
Targets: proposes “broad authorization for the use of American force against al-Qaeda, its offshoots, splinters, rivals and allies”
Conditions: opposes conditions such as on ground troops, geography, or time
Position 2. Open-ended targets (not ISIL-specific) with constraints
· Hoover Institution white paper (co-authored by Bobby Chesney, Jack Goldsmith, Matt Waxman, and Ben Wittes):
Targets: proposes “a delegation to the president to identify the entities against whom force can be deployed;” on that basis the administration could use force against any groups now or in the future that it determines have committed “a belligerent act” against the United States or “an organization with sufficient capability and planning that it presents an imminent threat to the United States”
Conditions: includes compliance with international law on use of force and law of armed conflict; transparency and reporting requirements; sunset clauses
[Note: but see Chesney, Goldsmith, Waxman & Wittes, “Draft AUMF” (2014) below]
Position 2-a: Proponent of position 2’s open-ended targets – and opposes organization-specific/ISIL-specific AUMF
· Ben Wittes, one of the authors of the Hoover paper: challenged the reasons for having an ISIL-specific AUMF and advocated a “broader” and more “flexible” model of the Hoover proposal; he wrote, “an instrument that authorizes force in a specific location against a specific group will very likely become irrelevant quickly”
[Note: but see Chesney, Goldsmith, Waxman & Wittes, “Draft AUMF” (2014) below]
Position 2-b. Proponent of position 2’s open-ended targets – but would accept an ISIL-specific AUMF in the interim
· Jack Goldsmith, one of the authors of the Hoover paper: continues to advocate the Hoover proposal; and he frames the need for an open-ended AUMF on the basis of threats from “Islamist terrorist organizations;” but he has outlined what he describes as “A Politically Palatable Authorization to Use Force Against IS” which would be ISIL-specific and include constraints on ground forces, geography, and time (see also Jack’s more recent post written in light of intervening events).
[Note: but see Chesney, Goldsmith, Waxman & Wittes, “Draft AUMF” (2014) below]
Position 3. AUMF for ISIL with little or no constraints
· Sen. James Inhofe draft AUMF [S.J.Res.43]:
Targets: ISIL and “any successor organization”
Conditions: requires a written report “setting forth a comprehensive strategy of the United States to defeat” ISIL, and any subsequent changes to that strategy
Position 4. AUMFs for specified enemies including ISIL-specific with constraints
1) Sen. Tim Kaine draft AUMF [S.J.Res. 44]:
Targets: ISIL and associated forces “directly fighting alongside ISIL in Iraq and Syria”
Conditions: includes constraints on ground forces (though permitted for “limited operations against high value targets”), geography, time (1 year sunset), explicitly international law; robust reporting requirements; repeals 2002 AUMF
[Note: Sen. Kaine has also publicly supported sunset for the 2001 AUMF]
2) Sen. Bob Menendez draft AUMF:
Targets: ISIL and associated persons or forces, including associated forces “fighting for or on behalf of” ISIL or “a closely-related successor entity”
Conditions: includes constraints on ground forces (though permitted for “limited operations against high value targets,” protection of US Armed Forces personnel and US citizens from “imminent danger,” “forms of advice and assistance to forces fighting ISIL in Iraq or Syria,” missions “not intended to result in ground combat operations” such as “enabling kinetic strikes;” and other limited purposes such as intelligence collection), time (3-year sunset); robust reporting requirements (including list of associated organizations, geographic scope of operations, and “methods for limiting civilian casualties”); repeals 2002 AUMF
3) Sen. Rand Paul draft AUMF and Declaration of War [S.J.Res.46]
Target: ISIL
Note 1: Text explicitly excludes associated forces (“organizations … based on affiliation with” ISIL).
Note 2: Text authorizes force only “to protect the people and facilities of the United States in Iraq and Syria” — not the US homeland or Iraq itself.
Conditions: includes constraints on ground combat forces (though permitted for “limited operations against high value targets,” protection of US Armed Forces personnel and US citizens from “imminent danger,” advisory and intelligence gathering); geographic scope; time (1 year sunset); repeals 2002 AUMF, sunsets 2001 AUMF
4) Rep. Adam Schiff draft AUMF [H.J.Res. 125]:
Target: ISIL
Conditions: includes limits on ground forces “in a combat role” which does not include “training, advisory, or intelligence capacity,” geography, and time (18-month sunset); reporting requirements; repeals 2002 AUMF; and sunsets 2001 AUMF
5) Rep. Darrell Issa draft AUMF [H.J.Res.123]:
Target: ISIL
Conditions: limitation on time (120-day sunset); reporting requirements; repeals 2002 AUMF
6) Principles to Guide Congressional Authorization, published at Just Security (authors: Brooks, Cleveland, Daskal, Dellinger, Goodman, Koh, Lederman & Vladeck)
Target: ISIL
Conditions: constraints include robust reporting requirements; international law; geographic scope; time (18-24 month sunset–during next administration); repeals 2002 AUMF; sunsets 2001 AUMF
[For agreement between proposals #6 and #7, see Washington Post Op-Ed by Goldsmith, Goodman & Vladeck]
7) Chesney, Goldsmith, Waxman & Wittes, “Draft AUMF” (2014), published at Lawfare
Targets: ISIL (also repeals 2001 AUMF and re-authorizes force against Al Qaeda and Afghan Taliban);
Conditions: constraints include robust reporting requirements; international law; geographic scope (consistent with international law); time (3-years sunset); repeals 2002 AUMF
8) Harold Koh in testimony, a Just Security post accompanying his testimony, and a Just Security post (Sept 29, 2014):
Targets: ISIL-specific; and Congress can authorize force against other specific threats if and when necessary in the future
Conditions: includes constraints on time; reporting requirements including “which groups are covered under the AUMF and in which nations the Department of Defense believes Congress has authorized the President to use military force,” and “periodic public reporting on the number of combatants and civilians killed.”
9) Jen Daskal & Steve Vladeck in Harvard National Security Journal article:
Targets: ISIL-specific; and Congress can authorize force against other specific threats if and when necessary in the future
Conditions: includes transparency and reporting requirements; sunset clauses
Position 5. Reject authorizing force against ISIL
A range of commentators have called for Congress to reject an AUMF for ISIL including: Daniel Larson, senior editor of The American Conservative in his column; and Doug Bandow, Senior Fellow at the Cato Institute in his column at Forbes. Other commentators have called for repealing the 2001 AUMF but without yet taking a position on an ISIL AUMF.