Highlights (and Concerns) for Senator Menendez’s Draft AUMF

Senator Bob Menendez, Chairman of the Senate Foreign Relations Committee, has circulated a draft authorization for the use of force (AUMF) against ISIL.  Importantly, Sen. Menendez reportedly “worked on [his plan] with Senator Tim Kaine.”

I thought to highlight five features of Sen. Menendez’s draft.

1. No sunset for the 2001 AUMF

Worrisomely and conspicuously absent from Sen. Menendez’s draft is a plan to sunset the 2001 AUMF. Notably, a 2001 AUMF sunset is also absent from Sen. Kaine’s own  draft AUMF. That said, Sen. Kaine at least recently  publicly endorsed a sunset for the 2001 AUMF at an event at the Wilson Center in November.

As many readers will know, a sunset for the 2001 AUMF is endorsed in effect by the Principles for drafting an ISIL AUMF published at Just Security; the proposed AUMF published at Lawfare; and an Op-Ed in the Washington Post by Jack Goldsmith, Steve Vladeck, and me. It is also included in the  proposal by Sen. Rand Paul and the proposal by Rep. Adam Schiff.

2. Superseding the 2001 AUMF for force against ISIL and its associates

The Menendez AUMF includes a provision that helps prevent the President from doing an  end-run around an ISIL AUMF by relying on the authorities in the 2001 AUMF (e.g.,  for use of ground troops; geographical locations). The AUMF would “supersede any preceding authorization for the use of military force” that the White House might have claimed to fight ISIL (e.g., as a successor of al-Qaeda) under the 2001 AUMF.

Others suggest that it is ambiguous whether this language is intended to preclude the President’s reliance on the 2001 AUMF for ISIL. For what it’s worth, the text in the draft AUMF (section i) is very similar to language Steve Vladeck suggested for this purpose in a congressional briefing which I moderated last month.

3. Definition of associated forces

The draft AUMF would authorize military action against “associated forces,” for which it provides the following definition (my emphasis added):

“Associated Persons or Forces Defined.—In this section, the term ‘associated persons or forces” means individuals and organizations fighting for or on behalf of the Islamic State of Iraq and the Levant’”

Over at Lawfare, Wells Bennett and Ben Wittes write that the Menendez AUMF defines associated forces “quite narrowly,” but I am not sure that’s right. Narrowly, compared to what? Recall that the Administration’s standard definition of associated forces includes two criteria, one of which is that the affiliated group must be engaged in hostilities “against the United States or its coalition partners” (the so-called co-belligerency test described by Jeh Johnson). And that’s how the Menendez definition may be broader: the co-belligerency limitation is not immediately apparent in the draft AUMF.

Also, what exactly does fighting “on behalf of” ISIL mean? For what it’s worth, “on behalf of” is the terminology that the ICRC Commentaries use in determining when a group “belongs to a party to a conflict”—and that determination (belonging to a party to the conflict) is potentially an alternative model to the administration’s co-belligerency test. I introduced the “belonging to a party” model in an earlier post at Just Security. Depending on how it is spelled out, the “belonging to a party” test could be broader or narrower than a co-belligerency test.

4. Sunset for authorization against ISIL and its associated forces

The Menendez AUMF includes a sunset for its own authorities after three years (section f)–which is an unusually long period compared to other proposals.

One concern with any AUMF that pre-authorizes the use of force against unnamed associated groups, is that it gives the Executive Branch too much discretion. A check against potential abuse is a sunset  provision. But that generally works if it includes a relatively short time horizon. Three years is a very long time and allows a president to put facts on the ground by using the AUMF to wage war against associated forces before having to acquire congressional re-authorization. Three years is also a period of time that is so far in the future that Congress cannot adequately anticipate what groups the next President might consider associated forces of ISIL or “associated forces of … a closely-related successor entity” of ISIL (section h).

5. International law

Thankfully, the draft AUMF includes the boilerplate language – “necessary and appropriate” force — which is understood to limit an authorization of force to actions that comply with international law. And, indeed this limitation has been endorsed by the Principles published at Just Security; the proposed AUMF published at Lawfare; and the Op-Ed written by Jack, Steve, and me.

That said, Sen. Menendez’s draft AUMF may include an unfortunate and unintentional qualification.  Compare these two formulations:

Kaine draft AUMF: “The President is authorized …to use all necessary and appropriate force…”

Menendez draft AUMF: “The President is authorized … to use the Armed Forces of the United States as the President determines to be necessary and appropriate…” (my emphasis added)

Does Sen. Menendez’s formulation raise a problem? Might the bolded text (“as the President determines to be”) suggest it would generally be left up to the President’s determination of what is necessary and appropriate (e.g., international legally binding)? To add fuel to this concern, consider that the 2001 AUMF, which has been  appropriately read to incorporate international law as interpreted by courts, essentially tracks the Kaine formulation. The 2001 AUMF provides: “the President is authorized to use all necessary and appropriate force.”

That said, the 2002 AUMF has the same construction as the Menendez draft. The 2002 AUMF states: “The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate…” I am unaware of any authority suggesting that the 2001 AUMF incorporates international law differently than the 2002 AUMF. So, perhaps this is not a real problem after all? I would recommend avoiding the risk by going with Sen. Kaine’s formulation.

[Update: I should add that I highly value Sen. Menendez’s proposed reporting requirements (section g), though I would prefer the fuller range of issues that we set forth in the Principles for both factual and legal questions (see  Principle 6).] 

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). You can follow him on Twitter @rgoodlaw.