Secretary Kerry on the relationship between the 2001 and ISIL AUMFs

Last month, I wrote that “[a]ssuming the President and Congress mean for [the Administration’s draft] 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.” Many others, on this blog and elsewhere, have urged a similar clarification.

At yesterday’s hearing on the Administration’s proposal, Secretary Kerry confirmed what he had indicated back in December–namely, that the Administration would support such a supersession provision, as long as it is appropriately tailored to ISIL-related operations, and would not eliminate any other authorities currently provided by the 2001 AUMF.  See the exchange with Senator Menendez at 54:13-55:35 of the hearing.  (At the December hearing, Secretary Kerry likewise said (at 1:09:00 of the video):  “If Congress passes a new [ISIL]-specific AUMF, we will support the inclusion of language in the new AUMF that will clarify that the [ISIL]-specific AUMF rather than the 2001 AUMF is the basis for the use of military force.  And I think that will give comfort to a lot of people.”)

I’m not aware that any member of Congress has expressed opposition to such a supersession provision.  Accordingly, whatever other differences might remain about the proper language of the AUMF, this is one thing that ought to be easy to address without controversy. 

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).