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A New, and This Time Bipartisan, Proposal for an AUMF Against ISIL

As we highlighted last week, there has been recent movement in Congress to refocus on the need for an authorization for the use of military force (AUMF) against ISIL. Sen. Tim Kaine (D-Va.) and Sen. Jeff Flake (R-Ariz.) continued that effort on June 8, proposing new text for an AUMF against ISIL to “protect the lives of United States citizens and to provide military support to regional partners in their battle to defeat ISIL.” This latest draft AUMF significantly expands the scope and duration of the mission compared Sen. Kaine’s previous proposals.

Key features of the proposed text include:

  • The proposal outlines explicit purposes for authorizing force to “protect the lives of United States citizens and to provide military support to regional partners in their battle to defeat ISIL.”
  • The new “associated forces” language is a novel construction. It would open the door for combat against “any individual or organization that presents a direct threat to members of the United States Armed Forces, coalition partner forces, or forces trained by the coalition, in their fight against ISIL” (emphasis added). For more on the significance of congressional authorization for the President to use force against anyone threatening groups trained and equipped by the United States, see John Reed’s post from earlier today on Bashar al-Assad’s possible support for ISIL.
  • This draft states that “the use of significant United States ground troops in combat against ISIL, except to protect the lives of United States citizens from imminent threat, is not consistent” with the purposes of the AUMF. In other words, the proposal would authorize significant ground troops to protect Americans from “imminent threats.”
  • The latest draft’s associated forces language is missing the provision (section 4) in Kaine’s 2014 proposed AUMF which would have required the President to provide Congress a list of associated forces that the United States is fighting under the auspices of the AUMF. (On the need for such reporting requirements, see the “Principles to Guide Congressional Authorization of the Continued Use of Force Against ISIL” published by a group of experts including Just Security editors, and a draft AUMF published by Lawfare. And if you haven’t gotten your fill, see Ryan Goodman, Jack Goldmsith, and Steve Vladeck’s piece on seeking a consensus for an ISIL AUMF.)
  • This AUMF would sunset after three years.
  • The draft would repeal the 2002 AUMF.
  • The document includes language stating that this authorization is the sole source of authority for the campaign against ISIL, thus superseding the 2001 AUMF for the purpose of using force against ISIL.

What the proposal does not include: a sunset of the 2001 AUMF — despite the fact that Kaine previously endorsed such a sunset and that the Senate Foreign Relations Committee included a sunset of the 2001 AUMF in a draft ISIL AUMF that it adopted in December 2014, during the waning days of the last Congress.

Click through for the full text. 

AUTHORITY FOR THE USE OF MILITARY FORCE AGAINST THE ISLAMIC STATE OF IRAQ AND THE LEVANT

SEC. _1. SHORT TITLE.

This title may be cited as the “Authority for the Use of Military Force Against the Islamic State of Iraq and the Levant Act”.

SEC. _2. FINDINGS.

Congress makes the following findings:

(1) The terrorist organization that has referred to itself as the Islamic State of Iraq and the Levant and various other names (in this resolution referred to as “ISIL”) poses a grave threat to the people and territorial integrity of Iraq and Syria, regional stability, and the national security interests of the United States and its allies and partners.

(2) ISIL holds significant territory in Iraq and Syria and has stated its intention to seize more territory and demonstrated the capability to do so.

(3) ISIL leaders have stated that they intend to conduct terrorist attacks internationally, including against the United States, its citizens, and interests.

(4) ISIL has committed despicable acts of violence and mass executions against Muslims, regardless of sect, who do not subscribe to ISIL’s depraved, violent, and oppressive ideology;

(5) ISIL has threatened genocide and committed vicious acts of violence against religious and ethnic minority groups, including Iraqi Christian, Yezidi, and Turkmen populations.

(6) ISIL has targeted innocent women and girls with horrific acts of violence, including abduction, enslavement, torture, rape, and forced marriage.

(7) ISIL is responsible for the deaths of innocent United States citizens, including James Foley, Steven Sotloff, Abdul-Rahman Peter Kassig, and Kayla Mueller.

(8) The United States is working with regional and global allies and partners to degrade and defeat ISIL, to cut off its funding, to stop the flow of foreign fighters to its ranks, and to support local communities as they reject ISIL.

(9) The announcement of the anti-ISIL Coalition on September 5, 2014, during the NATO Summit in Wales, stated that ISIL poses a serious threat and should be countered by a broad international coalition.

(10) The United States calls on its allies and partners, particularly in the Middle East and North Africa, to join the anti-ISIL Coalition and defeat this terrorist threat.

(11) President Barack Obama, United States military leaders, and United States allies in the region have made clear that it is more effective to use the unique capabilities of the United States Government to support regional partners instead of large-scale deployments of United States ground forces in this mission.

SEC. _3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) Authorization.—The President is authorized to use the Armed Forces of the United States as the President determines necessary and appropriate against ISIL or associated persons or forces as defined in section _6.

(b) War Powers 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 title supersedes any requirements of the War Powers Resolution (50 U.S.C. 1541 et seq.).

(c) Purpose.—The purpose of this authorization is to protect the lives of United States citizens and to provide military support to regional partners in their battle to defeat ISIL. The use of significant United States ground troops in combat against ISIL, except to protect the lives of United States citizens from imminent threat, is not consistent with such purpose.

SEC. _4. DURATION OF AUTHORIZATION.

The authorization for the use of military force under this title shall terminate three years after the date of the enactment of this Act, unless reauthorized.

SEC. _5. REPORTS.

The President shall report to Congress at least once every six months on specific actions taken pursuant to this authorization.

SEC. _6. ASSOCIATED PERSONS OR FORCES DEFINED.

In this title, the term “associated persons or forces”—

(1) means 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; and

(2) refers to any individual or organization that presents a direct threat to members of the United States Armed Forces, coalition partner forces, or forces trained by the coalition, in their fight against ISIL.

SEC. _7. REPEAL OF AUTHORIZATION FOR USE OF MILITARY FORCE AGAINST IRAQ.

The Authorization for Use of Military Force Against Iraq Resolution of 2002 (Public Law 107–243; 116 Stat. 1498; 50 U.S.C. 1541 note) is hereby repealed.

SEC. _8. SOLE STATUTORY AUTHORITY FOR MILITARY ACTION AGAINST ISIL.

This authorization shall constitute the sole statutory authority for United States military action against the Islamic State of Iraq and the Levant and associated persons or forces, and supersedes any prior authorization for the use of military force involving action against ISIL.

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