Foreign Policy

Three things Congress should ask the administration about ISIL AUMF

Nearly 14 years ago, Congress passed an AUMF to fight al Qaeda and the Taliban in response to the 9/11 attacks. Since then – and without significant congressional or judicial oversight – that law has been used to combat these groups in Afghanistan and elsewhere. It has also been used to conduct targeted killings in Yemen, Somalia, and Pakistan, hold prisoners at Guantanamo without charge or trial, and conduct wide-ranging surveillance programs. Most recently, President Obama has used the 2001 AUMF to attack ISIL, an organization that did not exist on 9/11. 

Members of Congress and national security experts – from both parties and with varying views about using military force to combat terrorist threats – are unhappy with how the 2001 AUMF has been stretched almost beyond recognition. Now, the debate on an ISIL AUMF has given Congress the opportunity to re-assert its oversight, prevent a recurrence of what happened to the 2001 AUMF, and begin to re-calibrate that outmoded authorization. Congress can now reduce the ability of this or any future president to exert unchecked authority that may undermine the rule of law and human rights. 

{mosads}The president’s proposed AUMF is a start, but it doesn’t really accomplish these goals. To get there, Congress should begin by asking the top administration officials, testifying at Wednesday’s Senate hearing – Secretary of State John Kerry, Secretary of Defense Ashton Carter, and Chairman of the Joint Chiefs of Staff General Martin Dempsey –the following questions. 

1. Why doesn’t President Obama’s ISIL AUMF address the 2001 AUMF?

Obama has claimed that he has all the authority he needs to fight ISIL in the 2001 AUMF, although he would ultimately like to refine and repeal it. Logically, proposing a new authorization for ISIL should clarify the role of the 2001 AUMF in that fight. Yet the president’s proposal is silent. Silence allows a future administration – when the ISIL AUMF expires – to continue to fight ISIL under the 2001 AUMF without any limitations. This is an absurd result.

Including a 2001 AUMF sunset in an ISIL AUMF and stating that the ISIL AUMF is the sole authority to use force against ISIL are crucial to ensuring that congressional intent is not disregarded.

A sunset would also enhance congressional oversight by forcing a future conversation between Congress and the administration on the scope of the conflict with al Qaeda, the Taliban, and their associated forces to determine whether the 2001 AUMF should be refined and reauthorized to suit an evolving conflict, or expire. A 2001 AUMF sunset has support from members of both parties; Sen. Rand Paul (R-Ky.) included one in his ISIL AUMF proposal, as did the ISIL AUMF passed by the Senate Foreign Relations Committee last year. Sunsets are included in other major counterterrorism legislation like the PATRIOT Act and the Foreign Intelligence Surveillance Act, and Congress has refined and reenacted these statutes to better suit changing circumstances.

Last year, Kerry said that the administration “will support the inclusion of language in the new AUMF that will clarify that the [ISIL] specific AUMF rather than the 2001 AUMF is the basis for the use of military force.” Congress should ask Kerry and the other witnesses if they would support including this clarifying language and a 2001 AUMF sunset in an ISIL AUMF.

2. Why is the president’s proposed AUMF definition of “associated persons and forces” even broader than the definition the administration already uses?

Obama’s proposal defines “associated persons and forces” as “individuals or organizations fighting for, on behalf of, or alongside ISIL or any closely-related successor entity in hostilities against the United States or its coalition partners.” This is broader than the definition of “associated forces” that the administration uses to target groups under the 2001 AUMF—a definition that is already overbroad

By including “successor” organizations, the proposed definition could allow the administration to use force against groups or individuals not engaged in armed conflict with the United States.

The president already has authority under Article II of the Constitution to target groups or individuals who pose an imminent threat to the United States.

Congress should ask the witnesses why the administration is expanding its own definition of “associated forces” to include “successor” organizations and whether they would support narrowing the ISIL AUMF’s “associated persons and forces” definition to limit war authorities to groups who are actually engaged in armed conflict with the United States.

3. What does it mean to “degrade and defeat” ISIL? 

The administration’s proposal lacks mission objectives. An ISIL AUMF should clearly state what success would look like. This would let us know when the authorization may expire: when the objectives have been met. An example could be degrading the group’s capacity so it can no longer pose a continuing threat of armed attacks against regional partners or the United States.

Congress should ask the administration witnesses what “degrading and defeating” ISIL would look like and if they would support including these objectives in an ISIL AUMF.

Top national security lawyers have proposed six principles for an ISIL AUMF, and Congress should take their advice. It’s Congress’s responsibility to exercise oversight and place limits on military force. It should step up to the plate by questioning Kerry, Carter, and Dempsey tomorrow and passing an ISIL AUMF that that sunsets and supersedes the 2001 AUMF, only targets groups that are engaged in armed conflict, and outlines concrete mission objectives. This will make clear to Americans and to the world exactly who we are at war with and to what end.

Brandon is Human Rights First’s associate attorney for national security.

Tags John Kerry Rand Paul

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