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Senators McCain and Graham’s Alarming Suggestion that the Conflicts With ISIS and Assad are “Inextricably Connected”

With a hat tip to Defense One‘s Kevin Baron and Michigan Law’s Monica Hakimi, I just came across a statement released yesterday by Senators John McCain and Lindsey Graham:

Monica’s reaction is, I think, exactly right:

But it’s actually much, much worse than flawed and reckless, it’s also belied by both the plain text of the 2001 AUMF and the (controversial) theory pursuant to which it has been applied to ISIS. Taking the text first, here’s the operative language:

the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons

As readers likely know, this language was consciously and deliberately narrower than the version President Bush had proposed–which would not have included a required nexus to the 9/11 attacks. Let me just say this here, lest there be any doubt: Syria is not a nation that planned, committed, or aided the 9/11 attacks, or harbored individuals who did so. Period. Full stop.

Of course, the text of the AUMF has been interpreted broadly to encompass groups affiliated with al Qaeda, including ISIS. But the theory there is not that the text of the AUMF is irrelevant or infinitely malleable; it’s that ISIS effectively splintered off from al Qaeda, and so even if ISIS itself wasn’t an organization that was responsible for 9/11, it is directly derivative of (and inherited personnel and infrastructure from) an organization that was. That’s a debatable (and litigation-provoking) proposition, to be sure–but it’s light-years closer to the text of the AUMF than McCain and Graham’s suggestion that the fight against ISIS and the fight against Assad are “inextricably connected.” They may be in the same rough part of the world, but (1) they’re not even in the same part of Syria; and (2) it’s not as if ISIS and Assad are supporting each other; quite to the contrary…

It’s possible that the McCain/Graham statement is just empty political rhetoric, and does not portend a legal argument about why President Trump already has the statutory authority to use force against the Assad regime. But it’s also possible that it’s the beginning of an effort to blur the lines between ISIS and Assad on Capitol Hill–blurring that would be, as Monica says, reckless–and that Senators McCain and Graham should both know better than to encourage.

Image: Win McNamee / Getty


About the Author

is co-editor-in-chief of Just Security. Steve is a professor of law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).