Suggestions for clarifying/amending the President’s draft ISIL AUMF

It’s a good start.  If enacted, the draft Authorization for Use of Military Force that President Obama proposed yesterday would not materially affect the way in which the President himself prosecutes the campaign against ISIL over the course of the remainder of his term:  After all, it’s designed to reflect the manner in which he thinks the United States ought to engage in the armed conflict with ISIL.  But the bill would impose limits on his successors in their capacity as Commander-in-Chief–most notably, the limitation on ground troops and the three-year sunset.  It is rare, to say the least, for a President to affirmatively ask Congress to impose such constraints.  Moreover, section 4 of the bill would promote much closer congressional and public oversight over the conduct of the conflict, by requiring the President to “report to Congress at least once every six months on specific actions taken pursuant to this authorization.”  (It’d be better still if the legislation required such reports to be made public to the extent possible.)

However, the draft AUMF also raises some questions that I doubt the President intended to leave unsettled for future administrations.  Each could be readily (and I hope without much controversy) addressed in the legislative process, either through minor tweaks to the statutory language or, in some cases, in the legislative history and signing statement.  Here are the four that occurred to me on a preliminary review of the draft, the first of which is probably the most important:

1.  Superseding the 2001 AUMF.  Assuming the President and Congress mean for this AUMF to impose limits on the President’s authority–including, in particular, limits on the use of ground forces, on the groups that can be considered “associated forces,” and on the duration of the use of force against ISIL absent further congressional authorization–then it is essential not only to repeal the 2002 Iraq AUMF (something that section 6 of the bill would do), but also to clarify that this AUMF would supersede any ISIL-related authority conferred by the 2001 AUMF.  Otherwise, this bill would simply sanction the President to use a subset of the authorities that in his view he already has under the 2001 AUMF–in which case the new authorization would be redundant, and its purported limits would be ineffective.  (Jack Goldsmith strongly concurs in this recommendation.)

It might be a bit tricky to formulate the precise wording of a supersession provision, but section 6 of last year’s SFRC-approved draft AUMF would be a good place to start:  “The provisions of this joint resolution pertaining to the authorization of use of force against the Islamic State of Iraq and the Levant shall supersede any preceding authorization for the use of military force.”

2.  Including the Purposes for the Use of Force in the Authorizing Provision.  The operative provision of the President’s draft AUMF, section 2(a), deviates from the 2001 and 2002 AUMFs in that it does not specify the objectives, or purposes, for which the President is authorized to use force.  (The absence of such language is likely a function of the fact that section 2(a) was evidently borrowed from section 2(a) of the draft AUMF approved by Senate Foreign Relations Committee last year.)  Such specification of objectives can importantly serve as an important implied limitation on the use of force that Congress is authorizing.  Presumably the President’s intent is to limit the use of force to address some or all of the matters contained in the preambulatory language of the draft AUMF.  Such proper objectives for the authorized use of force should be made express in section 2(a), as they were in the 2001 and 2002 AUMFs.*  In particular, Congress and the President should consider adapting language from the U.S. letter to the United Nations that explained why it is lawful for the U.S. to attack ISIL in Syria without Syrian consent, e.g., “in order to end the continuing attacks on Iraq” from ISIL forces located in a nation that “is unwilling or unable to prevent the use of its territory for such attacks.”

3.  Clarifying the Meaning of “Necessary and Appropriate.”  Section 2(a) also deviates from the 2001 AUMF in authorizing not the use of “necessary and appropriate” force, simplicitur, but instead the use of force that “the President determines to be necessary and appropriate.”  (The bolded language is derived from the 2002 AUMF and the SFRC draft.)  The Supreme Court and the Executive branch have construed the “necessary and appropriate” language of the 2001 AUMF to require compliance with international law (including the laws of war when force is being employed in an armed conflict), consistent with the Charming Betsy canon; and to grant authority only for those uses of force that are “based on longstanding law-of-war principles” (Hamdi).  As the government explained in its March 13, 2009 brief on detention, “[p]rinciples derived from law-of-war rules governing international armed conflicts must inform the interpretation of the detention authority Congress has authorized.”  (Steve and I offer more detailed thoughts about this important interpretive frame for the 2001 AUMF here.)  This is why, even though the 2001 AUMF, like today’s draft ISIL AUMF, does not include any express geographical limitations, it hardly means the U.S. may or will use force against al Qaeda in nations all over the world.  As the White House has emphasized, “whenever the United States uses force in foreign territories, international legal principles, including respect for sovereignty and the law of armed conflict, impose important constraints on the ability of the United States to act unilaterally—and on the way in which the United States can use force.  The United States respects national sovereignty and international law.”

Presumably the President intends that this new AUMF should be similarly construed, consistent with and informed by international law.  If so, that intent should be made more transparent; at a minimum, it should be made clear, in the legislative history and signing statement if not in the statutory language itself, that the words “the President determines to be” are not intended to affect these interpretive understandings.

4.  Defining “Associated Forces.”  Finally, there’s the definition, in section 5 of the draft AUMF, of ‘‘associated persons or forces’’ against whom the President would be authorized to use necessary and appropriate force–namely, “individuals and organizations fighting for, on behalf of, or alongside ISIL or any closely-related successor entity in hostilities against the United States or its coalition partners.”  This formulation, too, appears to have been borrowed from the SFRC draft.  Unfortunately, it deviates in at least three respects from the definition of “associated forces” that the government has been using under the AUMF, in ways that could unnecessarily raise problems or interpretive confusion.

Under the 2001 AUMF, the government has based the concept of an “associated force” on “the well-established concept of co-belligerency in the laws of war.”  In particular, the Executive has repeatedly stated that “to be an ‘associated force,’ a group must be both (1) an organized, armed group that has entered the fight alongside al-Qa’ida or the Taliban and (2) a co-belligerent with al-Qa’ida or the Taliban in hostilities against the United States or its coalition partners.”  Contra Ben Wittes, the function of this definition is to identify those organized groups that have actually joined the armed conflict against the United States as cobelligerents of the AUMF-identified armed group[s], not to afford the President “broad authority to target emerging threats” (whatever those might be) “to the extent they affirmatively associate themselves with either ISIL or Al Qaeda.”  See, e.g., Hamlily v. Obama, 616 F. Supp. 2d 63, 74-75 & n.17 (D.D.C. 2009) (Bates, J.) (agreeing with the government that “associated forces” means “‘co-belligerents’ as that term is understood under the law of war,” i.e., a “‘fully fledged belligerent fighting in association with one or more belligerent powers,’” and does not include organizations that “merely share an abstract philosophy or even a common purpose with al Qaeda—there must be an actual association in the current conflict with al Qaeda or the Taliban”).)

As I’ve previously noted, under this definition, the government currently considers at most one group outside the Afghan theater to be an associated force–namely, al Qaeda in the Arabian Peninsula (AQAP).

The first potential problem in the definition in section 5 of the draft AUMF–and the SFRC draft from which it derives–is that for some reason it does not invoke the concept of co-belligerency, at least not expressly.  It ought to be amended to do so, in order to clarify that Congress means only to cover those groups that fit “the well-established concept of co-belligerency in the laws of war.”

Second, it does not, at least in terms, refer to the requirement that the group be “organized [and] armed,” which has generally been thought to be required in order for a terrorist organization to be a belligerent force against which a state can be engaged in an armed conflict (and whose members can therefore generally be targeted or detained based upon their status in such a conflict).

Third, the section 5 definition–and section 2(a), for that matter–suggests that “necessary and appropriate force” can be used against “associated persons” who are not part of ISIL itself or any other armed force.  It is generally accepted under the laws of war, however, that such unaffiliated persons–i.e., civilians–cannot be targeted with lethal force except during such time as they are directly participating in hostilities (and cannot be indefinitely detained merely on the basis of their status).  To be sure, the draft AUMF does not say otherwise–it does not say that all “associated persons may be targeted at any time, and presumably targeting such persons at other times would not be “necessary and appropriate.”  Even so, the draft unnecessarily interjects an ambiguity or confusion on that score.  It would be much wiser to omit the references to associated “persons” altogether, and tether the definition of “associated forces” to that the Administration has been using these past five years.

* * * *

These and other discrete problems and concerns can, of course, be worked through in the course of the coming congressional deliberations.  As the President said today, “I believe this resolution can grow even stronger with the thoughtful and dignified debate that this moment demands.”

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* The 2001 AUMF authorizes the use of necessary and appropriate force “in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons [that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons].”

The 2002 AUMF authorizes the use of necessary and appropriate force “in order to–(1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq.”

  

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About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).