Wolf in Sheep’s Clothing: Does the McConnell amendment provide a justification for military operations against Iran?

President Donald Trump’s recent decisions to withdraw U.S. troops from Syria and draw down the U.S. military presence in Afghanistan have drawn concern from foreign partners, former U.S. military and diplomatic professionals, and Members of Congress on both sides of the aisle. Some have expressed skepticism that the threat posed to the United States by ISIS and Al Qa’ida in those areas has sufficiently diminished to end or wind down military operations. Even some who support withdrawal and bringing these conflicts to an end have been unsettled by the seemingly impromptu and uncoordinated nature of the President’s decisions.

Against this backdrop, on January 31, the Senate passed a resolution introduced by Senate Majority Leader McConnell and supported by most Republicans and some Democrats (the so-called “McConnell amendment”) urging the Administration to exercise caution before withdrawing from Syria and Afghanistan. The resolution, which the Washington Post characterized as a “striking reprimand” of President Trump’s withdrawal decisions, may seem at first blush like an uncontroversial expression of the need for caution. It “acknowledges” that U.S. and coalition partners “have made significant progress in the campaign against al Qaeda and [ISIS]” and “recognizes that diplomatic efforts to secure peaceful, negotiated solutions to the conflicts in Syria and Afghanistan are necessary to long-term stability and counterterrorism efforts,” but also “warns” against “a precipitous withdrawal.”

The McConnell amendment, however, does not merely caution against a hasty retreat from ISIS and Al Qa’ida. Its repeated references to Iran’s role in Syria and Afghanistan could be read to suggest that countering Iranian influence is already a component of the U.S. military missions in the region and should be an objective for a continued U.S. military mission in Syria and Afghanistan going forward – and it may lead some to argue that Congress’ existing force authorizations would provide a legal basis for those actions.

Specifically, the amendment “expresses concern that Iran has supported the Taliban in Afghanistan and Hizballah and the Assad regime in Syria, and has sought to frustrate diplomatic efforts to resolve conflicts in these two countries.” It “recognizes the positive role the United States and its partners have played in Syria and Afghanistan” in, among other things, “countering Iranian aggression.” It “warns that a precipitous withdrawal” could “create vacuums that could be filled by Iran or Russia.” And it “calls upon the Administration to pursue a strategy that sets the conditions for the long-term defeat of al Qaeda and ISIS, as well as the protection of regional partners and allies, while ensuring that Iran cannot dominate the region or threaten Israel.”

What’s the big deal, some might ask? None of these statements, on their own, go so far as to endorse U.S. military operations in opposition to Iran, much less purport to authorize the use of military force against Iran. And this is merely a non-binding “sense of the Senate” resolution. But there are two independent reasons to be wary of the amendment – first, by implicitly endorsing a conditions-based withdrawal rather than expeditious removal of U.S. forces, it seems to embrace the continuation of what is already the longest war in U.S. history, rather than simply rebuking the President for the chaotic decision-making process and abrupt nature of his decision to withdraw. Second, its call for “ensuring that Iran cannot dominate the region or threaten Israel” to be a component of U.S. strategy in the region alongside “long-term defeat of al Qaeda and ISIS” arguably creates dangerous ambiguity as to whether confronting Iran should be considered part of the U.S. military mission authorized by Congress.

While 23 Senate Democrats voted against the amendment, Senator Murphy (D.-Conn.) was the most forceful in expressing concern that it provides a quasi-legal justification to those in the Administration who would like to change the U.S. mission in Syria and Afghanistan to a “counter-Iran” mission (or add such a mission) without Congressional authorization. In the words of Senator Murphy, “the language of this bill suggests that our mission inside Syria is not just to fight ISIS. The language of this bill suggests that our troops are in Syria to fight Iran as well.” He concluded that a vote in support of the McConnell amendment would “potentially put some imprimatur of congressional support for a bigger conflagration with Iran that some in the administration may be trying to achieve.”

For Sen. Murphy, the importance of Congressional authorization for expanded military operations is not a new issue. He was critical of the last Administration as well for using the 2001 Authorization for Use of Military Force (AUMF) as U.S. domestic legal justification for the U.S. military presence in Iraq and Syria.  The 2001 AUMF, which remains operative law today for U.S military operations in Iraq, Syria, Afghanistan, and elsewhere, authorizes the use of military force against “those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons….”  The Bush and Obama Administrations took the legal position, endorsed by Congress, that the 2001 AUMF authorized the use of military force against Al Qa’ida, the Taliban and their “associated forces” (in essence, forces that had joined the fight with Al Qa’ida and the Taliban against the United States and its allies).

In 2014 the Obama Administration went a step further, taking the position that the 2001 AUMF also served as legal authorization for military operations against ISIS as the successor to Al Qa’ida in Iraq (AQI), which had been an “associated force” of Al Qa’ida and had carried out substantial military activities against U.S. personnel in Iraq. Although ISIS severed its ties with Al Qa’ida, the Obama Administration took the position that the 2001 AUMF continued to authorize military activities against ISIS as the successor to AQI, because ISIS continued to operate in Iraq, including attacking U.S. personnel there. While U.S. operations against ISIS in Iraq and Syria have been broadly supported by Congress, reliance on the 2001 AUMF as a domestic legal justification was seen as a stretch by Senator Murphy and a number of his colleagues, but Congress and the Obama Administration were unable to come to agreement on an alternative AUMF that would replace the 2001 AUMF.

The McConnell amendment could be seen as a shift away from nascent bipartisan efforts in the last Congress to replace or update the 18-year old 2001 AUMF, instead endorsing a continuation of the conflict under that same authorization. For Senator Murphy, the McConnell amendment represents not just Congress losing the opportunity to return to a debate on an AUMF, but simultaneously endorsing mission creep toward countering Iran: “I wish this wasn’t the way in which we were exercising our constitutional prerogative on foreign policy,” Sen. Murphy said, and “I am deeply worried, deeply worried about the language in this amendment that empowers those in the administration who are jonesing for a fight with Iran.”

The marker Sen. Murphy put down in his opposition to the McConnell amendment that neither the 2001 AUMF, nor the McConnell amendment, nor anything else, serves as Congressional authorization for military operations against Iran, is an important one. Specifically, he noted that “there is absolutely no congressional authorization for U.S forces to be in Syria to counter Iran or to fight Iran or to try to be a bulwark against Iranian aggression. No matter what kind of hoops you jump through to try to contort the 2001 AUMF to cover ISIS, you cannot get it to cover Iran.”

We agree. The 2001 AUMF does not authorize the use of force against Iran. Iran was not implicated in the 9/11 attacks, Iranian forces are not al Qa’ida or the Taliban or their associated forces, nor are they a “successor” to any of those forces. We also share Senator Murphy’s concern that the Executive Branch may be tempted to point to statements by Congress such as the McConnell amendment as support for expanding or redirecting the U.S. military’s mission in Syria and Afghanistan – even though the amendment is clearly not an authorization for use of military force under the War Powers Resolution.

To date, there is no concrete indication of a changed mission for the U.S. military in Syria, Afghanistan or elsewhere. In response to comments made by President Trump that the U.S. military should “watch” Iran from Iraq, General Votel, Commander of the US Central Command, testified on February 5 that the U.S. military remains focused on its counter ISIS mission there. His exchange with Senator Tim Kaine, in particular, was reassuring in that it underscored that the President’s remarks about monitoring Iran were unfounded. But there is a risk that statements from Congress that could be cited as favoring an expanded mission may well be used as such by the Executive Branch. Given reports that the Trump administration has long been considering “whether to make confronting Iran an explicit new goal” for U.S. forces in Syria and more recent bellicose rhetoric that could be seen as laying the groundwork for opposing Iran militarily, Senator Murphy is right to raise a warning flag.

 

IMAGE: Senate Majority Leader Mitch McConnell (R_KY is trailed by reporters after speaking on the floor of the U.S. Senate on January 22, 2019 in Washington, DC. (Photo by Win McNamee/Getty Images)

 

About the Author(s)

Brian Egan

Partner at Steptoe & Johnson LLP in Washington, D.C., former Legal Adviser to the State Department, former Legal Adviser to the National Security Council.

Tess Bridgeman

Senior Editor at Just Security. Former Special Assistant to the President, former Associate Counsel to the President, former Deputy Legal Adviser to the National Security Council (NSC), formerly Served at the Department of State in the Office of the Legal Adviser, in the Office of Political-Military Affairs and as Special Assistant to the Legal Adviser. Currently Senior Fellow and Visiting Scholar, Reiss Center on Law and Security at NYU School of Law. You can follow her on Twitter (@bridgewriter).