Important Features of Senators Kaine and Flake’s Proposed War Authorization for ISIS–with Annotations

Just Security serves as a space for discussion of whether now and how exactly Congress should tailor legislation authorizing the Executive Branch to wage war against ISIS. On Thursday, Sen. Tim Kaine (D-Va.) and Sen. Jeff Flake (R-Ariz.) introduced a bipartisan bill providing authorization for the use of military force (AUMF) against ISIS, al-Qaeda, and the Taliban. Back in 2015, the two senators introduced an AUMF for ISIS. The following are ten key features of their 2017 AUMF with some annotations.

The Kaine-Flake AUMF of 2017:

1. Provides that the “President is authorized to use all necessary and appropriate force

Note: This differs from the language of the Kaine-Flake AUMF of 2015, which authorized force that “the President determines necessary and appropriate.” The 2017 wording is preferable in my view because it makes clear that the determination of what is appropriate is not solely for President Trump, and this text properly matches the language and design of the 2001 AUMF.

2. Makes no reference to authorizing force against a “successor entity” to ISIS/AQ/the Taliban

Note: The Kaine-Flake AUMF of 2015 authorized targets to include “any closely-related successor entity” of ISIS. I am not sure what changed their minds, but they seem to have come around to my way of thinking. I recently wrote about the dangers of including “successor” entities in an AUMF (See “Why Congress Should Not Add ‘Successor Organizations’ in Authorizing War Against ISIS”).

3. Refers to associated forces and associated “persons”

Note: It is unclear what is meant by authorizing force against individual “persons” associated with ISIS/AQ/the Taliban, why the administration would need such authority, and how such authority might be used. This element potentially greatly expands the scope of the AUMF compared to models such as Rep. Adam Schiff’s bipartisan AUMF proposal in the House. The Schiff AUMF limits associated forces to “organized and armed group[s]”—not individual persons.

4. Makes explicit that an associated force cannot be a State

Note: This provision helps avoid a slippery slope I have discussed, which is the potential for the Trump administration to use an ISIS AUMF to enter armed hostilities against Syria or Iran without congressional input.

5. Limits associated persons and forces to those who are engaged in hostilities against the United States – not hostilities against US partners or allies

Note: This limitation is similar to the Schiff AUMF. In this respect, the definition is noticeably narrower than the understanding of “associated forces” as interpreted by the Obama administration, though is not clear that the broader interpretation was ever needed for the use of force in practice during the Obama years. The narrower definition surely helps limit potential abuse by the Executive Branch. It does raise one question: what about when the United States uses force in collective self-defense of another country against ISIS/AQ or their associated forces?

6. Establishes congressional reporting requirements for any new associated person or force (new is defined as forces in addition to al-Nusra Front, Khorasan Group, al-Qaeda in the Arabian Peninsula) and reporting requirements for any new foreign country in which US operations take place (new is defined as countries in addition to Afghanistan, Iraq, Syria, Somalia, Libya, or Yemen)

Note: This is a welcome element. Senator Kaine’s initial AUMF proposal in 2014 included a reporting provision, but his subsequent joint proposal with Senator Fluke in 2015 omitted it. Perhaps the prospect of a Trump White House has convinced the two of the importance of such congressional oversight. Also note that the reporting requirement is triggered “upon a determination by the President” that such a person or force shall be treated as an associated force. This could have been triggered earlier in the process, for example, when the administration determines it is legally permissible to consider an individual or group an associated person or force—in other words, when the lawyers decide it is legally authorized, and not waiting until the policymakers decide to use force on the basis of that legal determination.

7. Provides for an expedited procedure for Congress to pass a joint resolution disapproving a new associated person or force

Note: The AUMF could have been drafted with the opposite default rule: requiring Congress to pass a joint resolution approving any new associated person or force.

8. Provides for an expedited procedure for Congress to pass a joint resolution disapproving operations in any new country

Note: The AUMF could have been drafted with the opposite default rule: requiring Congress to pass a joint resolution approving operations in any new country.

9. Establishes a sunset of five years

Note: Because the AUMF folds in the authorization for the use of force against al-Qaeda and the Taliban, in effect it imposes a new sunset clause for the 2001 AUMF as well. For more on the value of a sunset clause, see the recent statement by former DoD and CIA General Counsel Stephen Preston and an op-ed in the Washington Post that I coauthored with Jack Goldsmith and Steve Vladeck in 2014.

10. Includes no limits on ground forces

The issue of ground forces was a large part of the political debate surrounding earlier efforts to pass an AUMF, and disagreement over that one issue may have been one of the major stumbling blocks to passage of an AUMF. Senator Kaine’s initial 2014 proposal and Kaine and Flake’s 2015 proposal included restrictions on the use of ground forces. Back in June 2015 who could have anticipated the current nature of the battlefield. The ongoing and promising assault on Mosul and Raqqa may be one reason to back away from such constraints.

 

Photo: Win McNamee/Getty 

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About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.