Years from now, what organizations will be the successor entities to Al-Qaeda, the Taliban, and ISIS? Of course nobody knows the answer, not even the groups themselves. With that high level of uncertainty, it would be most inadvisable—and contradict the design of our Constitution—for Congress to authorize the President to commit our nation to war against those future unknown groups, let alone the “associated forces” of those unknown entities. Yet that is what some in Congress may be willing to do and, paradoxically, in the name of “mak[ing] sure we don’t just delegate to the Executive Branch war-making powers.”
Those were the words of Senator Todd Young (R-IN) at the Heritage Foundation earlier this month explaining the rationale for his proposed authorization for the use of military force (AUMF) against ISIS. Admittedly Young’s bill has no co-sponsors in the Senate, and is among the most open-ended grants of authority compared to proposed bills previously offered by members of Congress. As Charlie Savage described at the Heritage event, “the language the Senator proposed … seems so very broad and open ended to me that it will attract alarm.”
It is important to understand Sen. Young’s bill because it tries to grapple with some difficult tradeoffs that all draft AUMFs must consider (as Savage also acknowledged). If the enemy changes its name that should not alter the President’s authority to engage them militarily. And if the group evolves on a frequent basis that would be added cause for Congress to loosen the reins and not require the administration to return to the Hill each time for separate approval. But neither of those concerns are ultimately reason for such an open ended grant of authority to fight ISIS, Al-Qaeda, and the Taliban’s possible “successor organizations” and those successor organizations’ associated forces. It is easy to deal with superficial name changes through the wording of the AUMF. And these organizations do not continually evolve in a manner that requires handing the President such boundless power. It would be especially irresponsible to do so without other safeguards in place like reporting requirements and a sunset clause—as Jack Goldsmith, Steve Vladeck, and I have written before.
It is true that other draft AUMFs for ISIS have included references to a “closely related successor entity”—such as the Obama White House draft ISIS AUMF, the one adopted by the Senate Foreign Relations Committee in 2014, and the bipartisan proposal in 2015 by Senator Senator Tim Kaine (D-Va.) and Senator Jeff Flake (R-Ariz.)—but, but, but all of those proposals tied that authority to some safeguards including the forcing-effect of a sunset clause, which helps ensure the executive branch acts consistently with Congress’s intentions. Even those procedural limits, especially with an administration willing to bend language, are not strong enough.
I wrote about the dangers of including “successor” organizations in an ISIS AUMF during the Obama administration, and some of those concerns are compounded today. We should understand that “successor organization” is not a legal term and does not have a stable meaning in policy either. There is no telling how the Trump White House would interpret it. Indeed, the Obama administration considered ISIS the successor of Al-Qaeda despite discrepancies in the historical record, including the two groups being at war with one another.
Sen. Young’s proposal also shows just how far such an authority might reach. His bill and its counterpart in the House not only authorize force against future “successor organizations,” but also authorize force against future “associated forces” of those successor entities, and then authorize the power to detain not only members of those groups but also individuals who “substantially supported” them. In other words, President Trump would have the congressional authority to detain individuals who substantially support a future associated force of a future successor organization of ISIS, Al-Qaeda, or the Taliban. That is nothing short of an open-ended license into the indefinite future. In Sen. Young’s words, what that does is “just delegate to the Executive Branch war-making powers.”
And, it does not actually take Sen. Young’s text to get there. The Bush and Obama administrations already took the position that they could detain individuals who “support” or “substantially support” a group covered by the 2001 AUMF—without an individual engaging in hostilities and without being a member of the group. Thus any of the draft AUMFs that include successor entities and their associated forces could include such related individuals too. What’s more, existing executive branch definitions of associated forces and some draft AUMFs not only include groups that enter hostilities against the United States but also groups that enter hostilities against U.S. partners. So one cannot assume this authority would be limited to organizations that threaten the United States directly.
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Especially compared to the static nature of nation-states, the future metamorphosis of armed groups and their alliances is impossible to predict. In the late 1970s and 1980s, nobody would have imagined that a successor group to the CIA-backed Afghan Mujahideen would one day become Al-Qaeda. Nor did the US administration realize that the organization it called a terrorist group—the Kosovo Liberation Army—would later be supported by NATO in the fight against Slobodan Milosevic. Parts of the Taliban may yet form part of a future Afghan government. An offshoot of former ISIS members claiming the mantle of its founder may appear years from now in any corner of the globe. And so on.
Let me be very clear about my own view. It may be in the vital national security interests of our country to use force against successor organizations to ISIS, Al-Qaeda, and the Taliban at some point in the future. But that is a decision for both branches of our government to decide when the time comes.