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The Perils of a Congressional Authorization to Fight ISIS

On September 18, 2001, nobody could have imagined how far Congress’s Authorization for the Use of Military Force (AUMF) would be stretched nearly sixteen years later and across three presidential administrations. At the end of the Obama administration, the executive branch had interpreted the 2001 authority to apply to Al Qaeda’s members, associated forces, and a successor entity—officially extending the use of lethal force to Afghanistan, Iraq, Libya, Somalia, Syria, and Yemen.

Admittedly, President Donald Trump now enjoys the latitude of existing authorities under the 2001 AUMF. One should be very careful, however, not to exaggerate how much latitude that includes. One should also be careful to consider how the effort to pass a new ISIS-specific AUMF may end up handing far more expansive powers to the president to wage war without sufficient congressional participation. To be sure, that would be an unintended consequence for many political leaders including the most democratic (lower case “d”) and public-interest minded. It is the risk of that unintended consequence, however, that provides the strongest reason not to proceed down this legislative path.

Some members of Congress and the public, including progressives and conservatives, want a new AUMF so as to subject the power of the Office of the President to wage war to democratic consent through the people’s representatives. Their principle is sound. No President should wage war without rigorous democratic deliberation and Congress’s approval. But the unintended consequence of an AUMF at this time in these circumstances and with this White House may be far worse—and a potential affront to that very same principle. There is a high risk that any final version of an AUMF will ultimately hand the levers of war to this and future presidents to commit American men and women to combat and our nation to armed conflicts without prior, meaningful congressional deliberation.

Consider three potential outcomes to the legislative effort:

Track 1. Aggrandizement: The final legislation vastly expands the latitude of the president to wage hostilities against foreseeable and unforeseeable enemies without future congressional participation

Track 2. National security fracture: The legislative effort results in no final bill, sending a bad signal to our allies and enemies alike, and jeopardizes the legal status of counter-ISIS operations before federal courts

Track 3. Tailored authority: The final legislation provides a principled set of constraints and preserves congressional participation in future administration decisions to wage hostilities

I will focus mainly on Tracks 1 and 2 in showing why their high likelihood is sufficient reason to slow or drop support for these legislative efforts. Instead such efforts would be better directed in seeking alternative mechanisms to achieve congressional goals (such as adding a provision for ISIS detention in the National Defense Authorization Act, establishing new congressional reporting requirements with conditions, etc.). In future writing at Just Security, others and I will explore such alternatives and focus on different visions of Track 3.

What are the risks involved in Tracks 1 and 2?

The Slippery Slope of Associated Forces

At present, the White House needs to be careful that it has congressional support with the actions it takes because it is already operating with a tenuous legal argument that it has the statutory authority to fight ISIS. Extending its actions to groups or even individuals that are only loosely connected to ISIS is difficult in the status quo, and will find a skeptical audience among federal judges if the issue arises, for example, in habeas litigation. With a new AUMF there will be less reason for President Trump to worry about the Hill and the courts.

Before explaining the mechanism by which the administration may extend the authorization to other groups without sufficient congressional approval, it is important to understand how this path may lead to new battlefields in new countries and direct conflict with other States. In other words, the policy implications are not restricted to conflict only with non-State actors. Under Obama administration interpretations of international and domestic law, the president can decide to use force in a foreign country where he determines ISIS’s threat to the United States exists if the territorial state is “unwilling or unable” to quell that threat. The same logic would apply to ISIS’s future and unnamed “associated forces” if Congress’s authorization to use force includes them.

Unless Track 3 is followed, an “ISIS-specific” AUMF will very likely open the aperture for the administration to pursue, without returning to Congress, ISIS affiliates and “associated forces” who are not part of the group itself. The legal formula was created with respect to al-Qaeda and its associated forces, but there are important factual differences in the organizational structure of ISIS which risk a much more slippery slope than what we have seen in the past.

In a 2015 piece titled, “Associated Forces: Why the Differences between ISIS and al-Qaeda Matter,” I described several distinguishing features of ISIS’s organization including the use of lone wolves, embrace of populist mobilization compared to AQ’s vanguard approach, “marriages of convenience,” and “splinter” groups. Here’s the upshot of what I wrote about the implications of those features for thinking about how an ISIS AUMF would work compared to the 2001 AQ AUMF:

[H]istory is not a reliable guide here. The reason turns on the different organizational structure and strategy of ISIS compared to al-Qaeda central. Basically, it is far easier to “join” ISIS — or fight for, on behalf of, or alongside the group — than what it has taken to join al-Qaeda (and to fight for, on behalf of, or alongside that group). And the danger with the administration’s proposal is not just one of slippery slopes under an ISIS AUMF. The dangers also include unintended consequences of folding some organizations into the class of U.S. enemies when we may prefer to cultivate a more nuanced relationship to them (think: Sunni tribal leaders in Iraq).

I have also previously documented statements by Obama administration officials discussing how “associated forces” in a draft ISIS AUMF could be applied to “small bands of violent Islamist militants in … Middle Eastern and North African countries that have ‘rebranded’ their identities to take the Islamic State name, and benefit from its notoriety;” to “other networks, maybe not even formal groupings;” and “affiliated relationships, or endorsement-like relationships.” The definition of the enemy in the leaked Trump administration draft executive order on ISIS detainees and Guantanamo may indicate a similarly unbounded conception of ISIS affiliates.

I also recommend reading, along these lines, Ken Gude’s Just Security article from January 2016 entitled, “It’s All About the Associated Forces.” Gude wrote:

“I have come to the conclusion that the generally accepted assumption, one which I used to share, that a congressional war authorization must include authority to make war in the future against ‘associated forces’ is unwise. It undermines the separation of powers and makes it too easy for the Executive to expand a war without seriously considering and defending that expansion to the American people.”

Once again, one might think that the administration can already claim it has ample authority to wage war against these associated forces. But does it? Despite all the commentators (on the left and right) who claim that Obama took us headlong into the Forever War, the United States has only been in a fight with ISIS itself and groups associated with Al-Qaeda. The interpretation of the 2001 AUMF has been like stretching a rubber band to say it applies to ISIS itself. For many lawyers that rubber band snaps if you try to stretch it to include forces purportedly associated with ISIS. That calculation would be reset by a new ISIS AUMF. In other words, the status quo is a better safeguard against the administration “daisy-chaining” associated forces of associated/successor forces without congressional input.

It’s hard enough for the administration to claim as a matter of law that ISIS is a “successor force” of AQ under the 2001 AUMF. It would be much harder to claim the 2001 AUMF applies to “associated forces of a successor force” (the rubber band stretches only so far). In short, it is simply untrue that Donald Trump has the same latitude now to venture into foreign wars unilaterally as he would with a new ISIS AUMF.

As an aside: A Track 3 approach could avoid some of these outcomes, for example, if it required congressional approval before any new associated force were added to the list or before the Defense Department used force in a new country. If an ISIS AUMF is silent on associated forces, it will surely be interpreted by the administration to cover such groups (that’s what happened with the 2001 AUMF). Accordingly, Congress’s best choice are no new AUMF, or, under Track 3, one that explicitly excludes associated forces or one that expressly requires the administration to return for congressional approval (not just reporting) when the White House wants to add a new enemy force to the list.

Properly identifying the enemy

Many congressional representatives may want an ISIS-specific AUMF, but there’s no guarantee the final piece of legislation would be so contained. Last time around the Obama White House exercised more self-constraint than can be expected of the current administration. It is widely known that some senior officials, and possibly the president, would hope for as broad a license as conceivable. Some of them would embrace the prospect any reference in the draft to something as boundless as “radical Islamic terrorism.” The politics of inserting such an element into such legislation before mid-term elections may even be difficult to resist. Whether or not those administration officials propose such language at the outset, they certainly won’t fight hard to defeat it. Lt. General H.R. McMaster is different in that regard having opposed that specific terminology. But there’s a limit to how many of these battles McMaster can win, and he will have different tradeoffs to consider including the upside of long-lasting congressional support for a wide set of military policies at his disposal.

Consider some of the early signs that we are on such a path. Several congressional representatives—from both sides of the aisle—have begun talking about authorizing the administration to fight ISIS and Syria in the same breath. That lack of discipline—whether in actual thought or political rhetoric—is the path toward a true “Forever War” where different adversaries—some State, some nonstate, some Sunni, some Salafi, some Shiite—are lumped together as a militant “Islamic” enemy.

Why would this White House care about having congressional authorization for the resort to military force? Isn’t it content to go it alone without Congress? Aren’t such military conflicts equally likely in the status quo? Those are good questions worthy of a longer conversation. For now, consider whatever fight the administration might choose (Iran, Houthis in Yemen, etc.), they will be on better political and legal footing if they can claim some kind of congressional consent to engaging in such hostilities. Administration lawyers will also surely advise their policy clients, quite properly, that such different forms of congressional legislation will reduce the risk that a court will find executive branch actions are unauthorized (for example, in the event of a detainee’s valid habeas petition).

The closer the legislation comes to authorizing force against other groups and States beyond ISIS, the more havoc it may wreak for U.S. national security and even the long-term interests of the presidency down the line. For instance, the more Congress provides advance support for use of force against a foreign force, the less political room there may be for this administration (or a future White House) to back away from legally available military options in resolving crises. (Political scientists have long studied the effects of such two-level games.) Also the more an AUMF heads in the direction of reducing congressional involvement in the trajectory of future and possibly reckless wars, the more reason our allies will have to back away from supporting U.S. policies.  A White House eager to acquire greater authorities may not sufficiently consider these future tradeoffs.

All Roads Lead to Tehran?

It’s widely reported that several senior officials, perhaps including Secretary James Mattis, may be prone to settling disputes with Iran through force, but there is currently no congressional authority for doing so. There may come a point where that may even be the most sound policy option, but that is a decision for Congress as well to make. How might the effort to pass an ISIS AUMF make such a war—with Iran and without congressional participation—more likely? The first is through any amorphous definition of the enemy such as “radical Islamic terrorism” which could sweep in Iran itself or Iranian backed groups like the Houthis, and the second is by bringing in Syria.

Recall how the 2001 AUMF has been extended to cover “co-belligerents” of Al-Qaeda. Now think of who Syria’s co-belligerents may include. There’s a reason that Israeli Prime Minister Benjamin Netanyahu, in congratulating the Trump administration on recent U.S. strikes on Syria, referred to Assad in simple terms as “Iran’s proxy.” He’s not incorrect. In testimony before Congress in 2012, as CENTCOM Commander, General James Mattis explained his vision that the collapse of the Assad regime would be the opportunity of a generation—in his words, “the biggest strategic setback for Iran in 25 years.” Mattis reiterated that same assessment in his personal capacity following his retirement. The question is whether an ISIS AUMF will be carefully cabined to avoid direct conflict with Syria—Iran’s proxy.

Sending a weak signal to our allies and our enemies (Track 2)

One of the key design features for a new AUMF is to send a strong signal that Congress and the country are united in our commitment to the destruction and defeat of ISIS. That is one advantage of getting Congress explicitly on board.

Why might the effort to draft a new AUMF send a weak signal? First, we may never get there—to a new AUMF (Track 2). If the American public becomes aware of the risks inherent in a new, poorly constructed AUMF and members of Congress realize that they may be held politically accountable at the ballot box for having authorized future irresponsible military actions, congressional representatives may retreat once again from a new war authorization. As the American Enterprise Institute’s Mackenzie Eaglen recently told Defense News, the current support for a new AUMF on the Hill may be superficial. “It’s easy to say you’re for a new AUMF if you secretly know (or just assume) one will never come to the floor,” Eaglen said.

What could be the final result of the air being let out of the legislative effort? The White House would suffer yet another political loss on the Hill. But more important, that kind of political debacle will send a weakened signal to our true and common enemy—ISIS—and to our allies.

* * *

In the final analysis: no new AUMF would be far better than a bad one. The risk of a very bad AUMF is intolerably high in the current political environment. I recommend finding off-ramps from the current legislative effort to draft a new ISIS AUMF, and seeking better alternatives.

 

Image: MikeyLPT/Getty

 

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About the Author

is co-editor-in-chief of Just Security. Ryan is the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law. He served as Special Counsel to the General Counsel of the Department of Defense (2015-16). You can follow him on Twitter (@rgoodlaw).