An AUMF for ISIL
During his State of the Union address on January 20, President Obama formally called on Congress to pass a new Authorization for the Use of Military Force (AUMF) against the Islamic State of Iraq and the Levant (ISIL). The Administration has faced criticism in both academic circles and the editorial pages over the perceived lack of legal authority to attack ISIL in Iraq and Syria. So far, the Administration has defended continuing operations against the terrorist group by relying on the 2001 and 2002 AUMF. Administration officials contend that ISIL is the “true inheritor” of UBL’s legacy, and is therefore targetable in Syria under the 2001 AUMF. The President has relied on both the 2001 and 2002 AUMFs to act in Iraq.
The reaction to the call for a new AUMF signaled the potential challenges facing its passage. In response to the President’s request, members of both parties were critical of the lack of strategy from the Administration for defeating ISIL. Both Republicans and Democrats called on the President to submit his own proposed bill as a starting point for discussion. In this early stage, the Administration has failed to do so. However, on December 9, Secretary Kerry outlined five positions the Administration supports in an ISIL AUMF.
These positions include:
Opposing an explicit ban on the use of ground forces in combat operations,
Supporting limiting language to target ISIL and associated forces only,
Opposing geographic constraints,
Supporting the inclusion of a three-year sunset clause, and
Supporting the superseding of the 2001 AUMF with the new AUMF as the foundational legal authority to combat ISIL.
As the Administration has not acted beyond these positions, the question then remains – if Congress is going to draft the AUMF, what is it going to include?
The new authorization could take the form proposed by then-Chairman of the Senate Foreign Relations Committee Bob Menendez in December 2014. The bill passed out of Committee with a 10-8 vote along party lines. Committee Republicans had signaled they were open to an ISIL AUMF at that time, but opposed the bill for two primary reasons. Firstly, the bill explicitly limited ground forces to non-combat operations, in opposition to the Administration’s position. Secondly, the Administration’s requested sunset clause was included, terminating the authority after three years.
The bill reflected the remaining three positions the Administration and the Republicans supported: the limiting language to target ISIL and associated forces only, the lack of a geographic constraint, and the new AUMF superseding the 2001 AUMF as the legal foundation for fighting ISIL.
With Republicans now in the Senate majority, the only disagreement on substance appears to be the sunset clause. Republicans will likely point to Chairman of the Joint Chiefs of Staff Martin Dempsey’s comments in a January 23 interview, calling for the most permissible AUMF possible. This includes no limitations on the use of ground troops, geography, or time limits in the form of sunset clauses.
Forcing the Administration’s hand on the strategy issue, Senator Menendez’s bill included language mandating the reporting of a comprehensive strategy. The report, to be issued 30 days after the AUMF’s passage, would have included diplomatic, political, and military objectives. This type of clause may provide political cover for Republicans in Congress drafting an ISIL AUMF, allowing them to claim leadership in the process and pressure the Administration to take action.