At a Heritage Foundation event on Monday, freshman Senator Todd Young (R-IN) told the audience “it is long past time for Congress to consider and pass an AUMF [authorization for the use of military force] for the fight against ISIS.” “Now is the time to lean in on this,” the Senator said, “as the world appears to be getting more dangerous on a number of fronts.”
Nearly three years have passed since the United States began the current armed conflict with ISIS in Iraq and Syria. Apart from the Senate Foreign Relations Committee marking up an ISIS AUMF in November 2014, Congress—the body with the constitutional power to “declare war”—has not acted to advance an ISIS AUMF bill and has essentially acquiesced to the Obama Administration’s claim that domestic legal authority for current armed conflicts derives from the 2001 and 2002 AUMFs.
As readers know, the 2001 AUMF was passed following the 9/11 attacks and authorized the use of force against those who “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 or harbored such organizations or persons,” language widely understood as applying to al Qaeda (who attacked the United States) and the Taliban in Afghanistan (who harbored them).
The 2002 AUMF was passed to target the Saddam Hussein regime. As New York Times reporter Charlie Savage noted during a panel following Senator Young’s remarks at Heritage on Monday, back in July 2014, then-National Security Adviser Susan Rice had encouraged Congress to rescind the law, saying explicitly that “the Iraq AUMF is no longer used for any U.S. government activities.”
These two laws, passed more than 15 years ago to address specific threats, are now being used as legal cover for new conflicts that span numerous geographic locations and include many additional groups or “associated forces”—a term that does not appear in the text of either AUMF. In September 2014, the Obama Administration added ISIS to the list even though, as Savage mentioned on Monday’s Heritage panel, ISIS and al Qaeda “were literally at war with each other.”
Currently less than 25 percent of those in Congress were in office when the existing AUMFs were passed. And increasingly they are speaking up to express frustration with the fact that they have not taken a vote on the scope of current conflicts. Persistent advocates of an ISIS AUMF, like Senators Tim Kaine (D-VA), Jeff Flake (R-AZ) and Rand Paul (R-KY), and Representative Adam Schiff (D-CA), have repeatedly raised the issue. A bipartisan group of forty-six House members recently wrote to Speaker Paul Ryan (R-WI) calling for a “debate and vote on an AUMF that defines the purpose, nature and limits of U.S. military engagement against the Islamic State.” And Senator Young said on Monday there was a “growing appetite” for a new AUMF in Congress—including among many Senators who had not come out publicly on the issue.
Another possibility is that, in accordance with a recent Heritage Foundation report recommendation, President Trump might ask Congress for an ISIS AUMF to provide the legal cover needed should he implement his proposed policy of sending captured ISIS members to Guantanamo. As Jack Goldsmith has noted, “it is easy to imagine a habeas court ruling that the President does not have the authority to detain a member of ISIL because the 2001 AUMF does not extend to ISIL.”
Congressional appetite and detention matters aside, the AUMF issue is not likely to go away. Former Department of Defense General Counsel Stephen Preston summed it up well on Monday’s panel, saying that the 2001 and 2002 AUMFs “are not infinitely elastic.”
Why It’s Important that Congress Make the Hard Decision to Go to War
There are critical reasons why the drafters of the Constitution entrusted Congress with the power to declare war. As Senator Young said on Monday: “To avoid foolish, hasty, unnecessary, and perpetual wars that tend to accrue debt and erode liberty, the founders wisely divided war powers between the legislative and executive branches.”
In addition, wartime authorities confer extraordinary powers on the president, powers that under normal circumstances would amount to egregious violations of human rights. War permits killing as a first resort, detention without charge or trial, and the use of military trials. In the United States, war has also been used to justify torture and warrantless surveillance, as well as drone strikes far from any war zone, with civilian deaths being justified as collateral damage.
The United States has rightly criticized other nations for abusing wartime authorities in the name of national security. But the ability of the United States to level this criticism credibly demands that it demonstrate that its own use of wartime authorities is lawful and appropriate. Indeed, some elements of American counterterrorism policy since 9/11 have undermined counterterrorism cooperation with other nations, who have objected to U.S. actions undertaken in the name of war.
By tailoring AUMFs to the conflicts to which they are intended to apply and conducting regular oversight of the war, Congress provides a crucial check on the executive branch, ensuring that presidents do not stretch wartime killing, detention, and trial authorities beyond these armed conflicts and beyond the bounds of law.
Lessons of the 2001 AUMF
When Congress does finally face the AUMF issue, it is critical that any new authorization reflect the lessons of the 2001 AUMF. These lessons have shown us how seemingly simple, straightforward language can have immense and dangerous consequences. Careful drafting is critical to prevent the executive branch from using a new AUMF to justify future unknown wars against new enemies in new locations, and for purposes never intended by those who voted for it.
The legislative history of the 2001 AUMF provides important insight into just how far congressional intent has been dismantled by executive branch interpretation throughout the nearly 16 years since the law was enacted.
The 60-word AUMF actually had a fairly narrow target: those who “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 or harbored such organizations or persons”—namely al Qaeda and the Taliban.
Contemporaneous congressional statements from the 2001 AUMF’s legislative history support these intended limits. For example, Rep. Lamar Smith (R-TX) said: “the resolution limits the President to using force only against those responsible for the terrorist attacks last Tuesday”; and Rep. Jan Schakowsky (D-IL) said: “This resolution has been carefully drafted to restrict our response to those we know to be responsible for this atrocity.”
As Charlie Savage said on Monday, “Clearly no one in 2001, when Congress authorized the use of force, was thinking about Syria.” Yet without a sunset date—something that has been included in nearly one-third of prior AUMFs—to bring Congress and the executive branch back to the table, the past two administrations have continued to expand the scope of the 2001 AUMF, with very little in their way.
The most significant expansions were made when the law was extended to “associated forces”—groups fighting “alongside” al Qaeda—despite this term never appearing in the authorization’s text. Later, the Obama Administration extended the 2001 AUMF to ISIS. However, as noted above, ISIS was fighting against al Qaeda, so could not qualify as an associated force. So the administration claimed instead that ISIS fell under the 2001 AUMF’s umbrella for a different reason: ISIS essentially was al Qaeda; the two groups were “one and the same.” As then-Press Secretary Josh Earnest put it , ISIS was covered by the 2001 AUMF because it was “the true inheritor of Osama bin Laden’s legacy.”
It is worth recalling that in 2014 when this claim was first made, national security law experts from both sides of the aisle were astounded. Before the announcement, Ryan Goodman had noted the “remarkable consensus of opinion” among experts “that ISIS is not covered by the 2001 AUMF.” Ben Wittes commented that extending the 2001 AUMF to ISIS “is not a stable or sustainable reading of the law.” And Harold Hongju Koh considered a new AUMF to be the only “lawful way to fight the Islamic State” and prevent a “constitutional battle over the president’s prerogative to conduct unilateral war.”
Indeed, once it became apparent that the U.S. engagement in Iraq would extend beyond the rescue of Yazidi people from Mount Sinjar and securing the Mosul Dam, several experts—many of whom had served in both Republican and Democratic administrations—began developing guidance for a new ISIS AUMF, which they considered essential for continuing the fight against ISIS.
National Security Experts and the ISIS AUMF
In November 2014, unbeknownst to each other, two separate groups of national security law experts, working independently, each came up with proposals for how to draft an ISIS AUMF. One group released a set of principles (published on Just Security) and the other wrote a draft authorization (on Lawfare). In spite of the groups’ different ideological leanings, both made strikingly similar recommendations. This unexpected similarity resulted in various combinations of authors joining forces on a Washington Post op-ed and blog post on the “intellectual consensus” that had been reached on what should be in a new ISIS AUMF:
- State a clear purpose for which force is being authorized;
- Clearly define the enemy, including a precise definition of “associated forces” (if force is authorized against associated forces at all);
- Include meaningful and specific reporting requirements;
- Require compliance with international law;
- Clarify that the ISIS AUMF provides the sole source of authority to use force against ISIS; and
- Include sunset dates for both the ISIS AUMF and the 2001 AUMF.
These recommendations were designed to correct the shortcomings of the vague language in the 2001 AUMF and reflect the lessons learned not just from that law, but also from all prior authorizations. Each of these recommendations helps to ensure that congressional intent is not rendered moot by subsequent executive branch interpretation and that war, with all its profound consequences, is not entered into lightly nor conducted without meaningful oversight and accountability.
Getting the AUMF Right
To avoid repeating the mistakes of the 2001 AUMF, any new authorization should contain clear and precise language that is tailored to current threats, should facilitate proper congressional oversight and transparency, and should tightly constrain the use of extraordinary wartime powers.
To that end and in accordance with the bipartisan expert consensus discussed above, Congress should ensure that any new AUMF includes the following elements:
Purpose: Setting out the reason for which force is being authorized, the “strategic military objective,” discourages mission creep and constrains the executive branch from overstepping Congress’ intent behind the authorization. A clear purpose ensures that the AUMF cannot be coopted to justify perpetual armed conflict.
Clearly defined enemy: Explicitly naming “ISIS” in the AUMF will address the 2001 AUMF’s problem of failing to name al Qaeda and the Taliban. It will guard against the executive branch exploiting any ambiguity to extend the authorization to other groups that Congress does not intend to be included. Similarly, if force is to be authorized against “associated forces,” the AUMF should include a definition of that term that complies with the laws of war. This will limit the ISIS AUMF to the groups who are fighting with ISIS as parties to the armed conflict. As Ryan Goodman has discussed, an unduly broad definition of associated forces that authorizes force against “successor entities” would “endorse [President Obama’s] theory that looped the Islamic State under the 2001 AUMF,” a “dangerous methodology” that could result in more unintended groups being included under a new AUMF.
Reporting requirements: Meaningful reporting requirements—including the names of the groups we are fighting and the legal basis for extending the AUMF to them—provide an important safeguard against endless war. As this expert report on war powers states, “Congress does not complete its war powers duties by authorizing the use of force abroad.” To the contrary, Congress “should also conduct appropriate and regular oversight of the strategic use of force, monitor the domino domestic legal effects of the authorization, and, when appropriate, revise or rescind the authorization.” The 2001 AUMF did not contain any reporting requirements and the 2002 Iraq AUMF included the nebulous obligation to report on “matters relevant” under the resolution. With these minimal obligations, the executive branch did not even publicly disclose all the groups we were fighting under those AUMFs until 2015.
Compliance with international law: Any AUMF should require compliance with international law. This can be done explicitly (as in the Lawfare proposal) or by authorizing the president to use “necessary and appropriate force,” as noted in the Just Security recommendations.
Sole source of authority/supersession provision: An ISIS-specific AUMF should make it clear that it is the sole source of statutory authority to use force against ISIS. The Obama Administration claimed that the 2001 and 2002 AUMFs already authorize force against ISIS. Failing to clarify that a new ISIS AUMF supersedes the authorizations confuses rather than clarifies the administration’s powers. And as Jen Daskal testified, it “opens up the possibility of a future executive relying on the 2001 AUMF as an end run around any restriction in an ISIL-specific AUMF it doesn’t like.”
Sunsets: A sunset clause is the most effective way to force the executive and legislative branches together to reexamine the war and if necessary, rescind the AUMF or amend it to suit an evolving conflict. As noted above, sunsets have been included in nearly one-third of prior AUMFs. In congressional testimony, Bobby Chesney called sunsets “highly desirable as a matter of democratic accountability.” Then-Secretary Ash Carter testified that a three-year sunset was a “sensible and principled provision,” notwithstanding that the conflict may take longer than three years to resolve. At Monday’s event, Stephen Preston addressed the argument some have made that a sunset provides an indicator of when military operations will end and the United States will walk away from the fight—signaling to the enemy that it can simply bide its time until the authorization expires. As Preston discussed, a “properly structured” provision with “some mechanism for renewing the authority in advance of the sunset” would not serve as an end date for the conflict but rather would signal to our partners and adversaries that we are “committed to our democratic institutions and we have set up a mechanism to fight this fight as long as we have to fight the fight.” Indeed, Congress has proved itself capable of renewing numerous other national security authorizations, including provisions of the USA PATRIOT Act and of the Foreign Intelligence Surveillance Act (“FISA”) Amendments Act.
War authorities grant extraordinary powers to the president and engender enormous consequences. The founders recognized this and wisely designated Congress to provide a vital check on the execution of war. If and when Congress comes back to the table to consider and debate a new AUMF, it should ensure that any new law properly reflects the lessons of prior AUMFs. Being thoughtful and careful about authorizing war is the height of democratic responsibility. Any new AUMF should strengthen Congress’ role in authorizing and overseeing war, not diminish it. If Congress can’t reach agreement on such an authorization, it shouldn’t pass one.