Senator Rand Paul’s Proposed Declaration of War and AUMF against ISIL

Senator Rand Paul (R-KY) has released a proposal to declare war against the Islamic State and authorize the use of military force against it. In relevant part, Paul’s joint resolution would authorize and direct the President:

to use the Armed Forces of the United States to protect the people and facilities of the United States in Iraq and Syria against the threats posed thereto by the organization referring to itself as the Islamic State, also known as the Islamic State of Iraq and the Levant (ISIL) and the Islamic State of Iraq and Syria (ISIS).

This authorization would terminate one year after enactment. Paul’s proposal shares features with several other AUMF proposals—including sunset of the 2001 AUMF, repeal of the 2002 AUMF for Iraq, and limitations on ground troops. It also has several distinguishing aspects.

Declaring War

Paul’s AUMF would also declare war, for the first time since World War II:

The state of war between the United States and the organization referring to itself as the Islamic State, also known as the Islamic State of Iraq and the Levant (ISIL) and the Islamic State of Iraq and Syria (ISIS), which has been thrust upon the United States, is hereby formally declared pursuant to Article I, section 8, clause 11, of the United States Constitution.

The language of the declaration strongly resembles that of a September 2014 resolution introduced by Rep. Louis Gohmert (R-Texas).

What declaring war would mean for interpreting the bill is less clear. Over at Lawfare, Jack Goldsmith has an excellent analysis of this provision’s significance, and notes its most salient feature: “the juxtaposition between the full-throated declaration of war… and the very narrow authorization of force,” calling the contrast “strange.” And indeed it is. The Paul bill recognizes a “state of war” and pulls the most significant war powers trigger in the Constitution; yet only authorizes force by the United States for a limited set of purposes—“to protect the people and facilities of the United States in Iraq and Syria against the threats posed thereto by the organization referring to itself as the Islamic State”—and by a restricted set of means—the limitations on ground troops. Paul’s bill also fails to include the purpose of collective self-defense of Iraq, which may pose a problem for its justification under international law.

This contrast embodies considerable tension, and given the lack of use of the “declare war” option for well over a half-century, its effects may be unpredictable.

Treatment of Prior AUMFs

Paul’s proposal would sunset the 2001 AUMF against Al Qaeda, one year after enactment of the joint resolution. The bill would also immediately repeal the 2002 AUMF for Iraq.

The Paul AUMF also takes an explicit step to narrow interpretation of the 2001 AUMF even during the year in which it would remain good law. Section 4 states outright that the 2001 AUMF “does not provide any authority for the use of military force against the organization referring to itself as the Islamic State, and shall not be construed as providing such authority”—breaking with the Obama Administration’s interpretation of its present statutory authority.

Limitation on Ground Troops

The AUMF would limit the introduction of ground troops to three specified purposes: protection or rescue of American citizens or armed forces in “imminent danger” from ISIL; “limited operations against high value targets;” and for “advisory and intelligence gathering operations.”

As discussed previously by Steve Vladeck, the first of these functions may already be authorized by Congress under the Hostage Act (if not under Article II itself). The second purpose would also presumably include members of al-Qaeda (such as the Khorasan group), which would appear to already be covered by the 2001 AUMF. It is therefore unclear whether Paul’s limitation on ground troops represents a substantive deviation from the status quo of force deployment—though it could offer a more robust role for lethal operations against ISIL targets unaffiliated with al-Qaeda.

Scope of Authority

The Paul AUMF also squarely eliminates authorization for the use of force against “associated forces”—seemingly a response to the manner in which the executive branch has extended the application of the 2001 AUMF beyond core al-Qaeda. Such a limitation is not a feature even in the relatively narrow AUMF offered by Senator Tim Kaine (D-VA), which authorizes force against associated forces operating in Syria and Iraq, provided the President reports those groups to Congress.

Theme of Separation of Powers 

Paul’s bill also appears designed to emphasize congressional power and executive restraint. Rather than merely authorizing force, the AUMF sees the President “directed and authorized” to use force. The preamble quotes both George Washington and James Madison on the subject of Congress’ power to declare war. The AUMF appears to offer congressional authorization for the use of ground troops in situations arguably already covered under Article II or other statutory authorities (though allowing greater use of ground troops against certain high-value Islamic State targets). And the limitations on scope of construction, combined with the explicit declaration of war, appear designed to draw a contrast with modern practice by both Presidents and Congress. All congressional bills are political statements as well as potential legislative enactments, and Paul’s point here is unmistakable.

The full text of the AUMF is below. Just Security will continue to follow developments relating to an authorization for force against ISIL during the lame duck and the 114th Congress.

Whereas Article I, section 8, of the United States Constitution provides, ”The Congress shall have the Power to . . . declare war”;

Whereas President George Washington, who presided over the Constitutional Convention, lectured: ”The Constitution vests the power of declaring war with Congress. Therefore no offensive expedition of importance can be undertaken until after they have deliberated upon the subject, and authorized such a measure.”;

Whereas James Madison, father of the Constitution, elaborated in a letter to Thomas Jefferson: ”The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the Legislature.”;

Whereas James Madison wrote in his Letters of Helvidius: ”In this case, the constitution has decided what shall not be deemed an executive authority; though it may not have clearly decided in every case what shall be so deemed. The declaring of war is expressly made a legislative function.”;

Whereas the organization referring to itself as the Islamic State has declared war on the United States and its allies; And

Whereas the Islamic State presents a clear and present danger to United States diplomatic facilities in the region, including our embassy in Baghdad, Iraq, and

Whereas the Islamic State presents a clear and present danger to United States diplomatic facilities in the region, including our embassy in Baghdad, Iraq, and consulate in Erbil, Iraq:

Now, therefore, be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This joint resolution may be cited as the ”Declaration of War against the Organization known as the Islamic State”.

SEC. 2. DECLARATION OF A STATE OF WAR BETWEEN THE PEOPLE AND GOVERNMENT OF THE UNITED STATES AGAINST THE ORGANIZATION KNOWN AS THE ISLAMIC STATE.

(a) DECLARATION.-The state of war between the United States and the organization referring to itself as the Islamic State, also known as the Islamic State of Iraq and the Levant (ISIL) and the Islamic State of Iraq and Syria (ISIS), which has been thrust upon the United States, is hereby formally declared pursuant to Article I, section 8, clause 11, of the United States Constitution.

(b) AUTHORIZATION.-The President is hereby authorized and directed to use the Armed Forces of the United States to protect the people and facilities of the United States in Iraq and Syria against the threats posed thereto by the organization referring to itself as the Islamic State, also known as the Islamic State of Iraq and the Levant (ISIL) and the Islamic State of Iraq and Syria (ISIS).

(c) RULES OF CONSTRUCTION.-

(1) SCOPE OF AUTHORITY.-Nothing in this section shall be construed as declaring war or authorizing force against any organization-

(A) other than the organization referring to itself as the Islamic State, also known as the Islamic State of Iraq and the Levant (ISIL) and the Islamic State of Iraq and Syria (ISIS); or

(B) based on affiliation with the organization referring to itself as the Islamic State, also known as the Islamic State of Iraq and the Levant (ISIL) and the Islamic State of Iraq and Syria (ISIS).

(2) LIMITATION ON USE OF GROUND COMBAT FORCES.-Nothing in this section shall be construed as authorizing the use of ground combat forces except-

(A) as necessary for the protection or rescue of members of the United States Armed Forces or United States citizens from imminent danger posed by the organization referring to itself as the Islamic State, also known as the Islamic State of Iraq and the Levant (ISIL) and the Islamic State of Iraq and Syria (ISIS);

(B) for limited operations against high value targets; or

(C) as necessary for advisory and intelligence gathering operations.

(d) WAR POWER RESOLUTION REQUIREMENTS.-

(1) SPECIFIC STATUTORY AUTHORIZATION.-

Consistent with section 8(a)(1) of the War Powers Resolution (50 U.S.C. 1547(a)(1)), Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution (50 U.S.C. 1544(b)).

(2) APPLICABILITY OF OTHER REQUIREMENTS.-Nothing in this resolution supersedes any requirement of the War Powers Resolution (50 U.S.C. 1541 et seq.).

SEC. 3. REPEAL OF PRIOR AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES AGAINST IRAQ.

The authorization for the Use of Military Force Against Iraq Resolution of 2002 (Public Law 107-243; 50 U.S.C. 1541 note) is hereby repealed.

SEC. 4. NO EXISTING AUTHORITY.

The Authorization for the Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) does not provide any authority for the use of military force against the organization referring to itself as the Islamic State, and shall not be construed as providing such authority.

SEC. 5. SUNSET OF 2001 AUTHORIZATION FOR THE USE OF MILITARY FORCE.

The Authorization for the Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) shall terminate on the date that is one year after the date of the enactment of this joint resolution.

SEC. 6. EXPIRATION.

The declaration and authorization in this joint resolution shall expire on the date that is one year after the date of the enactment of this joint resolution.

 

About the Author(s)

Eric Messinger

Former Assistant Managing Editor of Just Security Follow him on Twitter (@egmessinger).