ISIS

A Draft AUMF to Get the Discussion Going

By Benjamin Wittes, Robert Chesney, Jack Goldsmith, Matthew Waxman
Monday, November 10, 2014, 1:00 PM

President Obama said last week that he wants an AUMF for the ISIL conflict, and he further stated that he wants to “right-size and update whatever authorization Congress provides to suit the current fight, rather than previous fights.” So we thought we would draft a notional AUMF along those lines to get a discussion going. What follows is an attempt, in 475 words, to put on a contemporary statutory basis the authorities that the President has claimed he has already under the 2001 and 2002 AUMFs to fight Al Qaeda, the Islamic State and their allies. The proposal attempts to do this without giving adding any additional authority and while also imposing some novel substantive and procedural limits, including extensive reporting requirements, a sunset clause, and while repealing the 2001 and 2002 AUMFs. Our draft also incorporates some comments and criticisms received in connection with our earlier policy paper on AUMF reform. No doubt there remains room for further improvement, so we look forward to feedback.

We offer some explanatory comments about our choices after the text itself, which reads as follows:

To revise and clarify the authority of the President to use all necessary and appropriate force against certain terrorists or terrorist organizations.

Whereas …

SEC 1 – Short Title

This joint resolution may be cited as the “Revised Authorization for Use of Military Force of 2014”

SEC. 2. Authorization for Use of Force

(a) The President is authorized to use all necessary and appropriate force against Al Qaeda, the Islamic State, and the Afghan Taliban.

(b) The authorization of force in Section 2(a) extends to associated forces of the entities listed in section 2(a) insofar as such forces are engaged in hostilities against the United States.

SEC 3.  Geography

The authorization of force in Section 2 extends only to operations in places where force can be used consistent with applicable international law concerning sovereignty and the use of force.

SEC 4.  Sunset Clause.

The authorization granted in Section 2 shall terminate on the date that is 36 months after the date of the enactment of this joint resolution.

SEC 5.  Reporting

(a)  In addition to all reporting requirements under the War Powers Resolution or other applicable statute, the President shall:

(1) no less often than every ninety days publish in unclassified form a list of the entities against which the force authorized in Section 2 has been deployed and, to the extent not strictly precluded by national security, where such force was deployed;

(2) no less often than every ninety days report to the Senate and House armed services, foreign relations or affairs, and intelligence committees the geographic location of operations carried out pursuant to Section 2, and a summary of the factual predicate for concluding that an entity is an “associated force” covered by Section 2.  To the extent strictly necessary in the interests of national security, this report may be made in classified form.

(b)  If the President deploys force under his constitutional authorities in Article II against a terrorist or terrorist organization that does not fall within the authorization in Section 2, he shall, in addition to all reporting requirements under the War Powers Resolution or other applicable statute, comply with the reporting requirements specified in Section 5(a) concerning the identities of the terrorist or terrorist organizations, the geographic location of the use of force, and the summary of the factual predicate for the use of force.

SEC. 6. Repeal of Prior Authorizations

(a) The September 18, 2001 Authorization to Use Military Force (Public Law 107–40; 50 U.S.C. 1541 note) is repealed.

(b) The Authorization for Use of Military Force Against Iraq Resolution of 2002 (Public Law 107–243; 50 U.S.C. 1541 note) is repealed.

SEC. 7. War Powers Resolution Requirements

Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that section (a) is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

A few notes:

Section 2(a) of the proposal authorizes force against three named groups: Al Qaeda, ISIL, and the Afghan Taliban. The United States is currently in armed conflict with these groups, the President currently claims statutory authority to use force against these groups, and there is currently a broad political consensus in favor of the authority to combat these groups with military force. Section 2(b) clarifies that the force authorized in Section 2(a) extends to “associated forces of the entities listed in section 2(a) insofar as such forces are engaged in hostilities against the United States”  Section 2(b) is meant to capture those associated forces that have meaningfully entered the fight alongside one of the named belligerent groups. The Obama administration already claims the authority to target such groups. So again, Section 2(b) gives the President no more authority than he currently possesses; and procedural mechanisms, discussed below, temper the President’s authority to use force against such associated forces.

The 2001 AUMF has been criticized for authorizing a worldwide and endless war. Sections 3 and 4 address these criticisms by imposing both temporal and geographic limitations. On the temporal side, Section 4 sunsets the authorization after three years, forcing Congress to make an affirmative decision as to whether, and how, it wants its blessing to continue. Thus, the authorization covers the remainder of the Obama administration and gives President Obama’s successor a year of grace in which to decide how to proceed and seek whatever renewal he or she might consider necessary from Congress.

Section 3, concerning geographical limitations, is more complicated. It limits the authorization in Section 2 “to operations in places where force can be used consistent with applicable international law concerning sovereignty and the use of force.”  This limitation is currently satisfied by the principle of consent in, for example, Iraq and Afghanistan. The limitation would also permit force to be used in Syria to the extent international law permits it, as the administration currently claims it does. Section 3 would also permit the use of force in Yemen to the extent that Yemeni sovereignty concerns are obviated by its consent or are otherwise overridden (for example by a UN Security Council Resolution or perhaps in accordance with self-defense principles). The United States’s view of its authority to operate in the territory of unconsenting countries---especially those that it deems unwilling or unable to mitigate threats emanating from within their borders---is not accepted universally, and this proposal does not try to determine the proper substance of international law on that point. It simply says that the administration has Congress’s authorization to use force against the groups covered by Section 2 only where international law permits, which we understand to be how the Obama administration has been operating to date.

Section 5(a) requires the President to inform Congress at least every 90 days about which groups, where, and on what factual basis force is being used in accordance with the authorization. It also requires the President to report publicly on which groups are being hit and in what general locations. These provisions promote presidential accountability. They require the Executive branch to be more rigorous in its determinations of covered groups and individuals, and will help to ensure that members of Congress and the public know (subject to exceptions where secrecy is necessary) precisely against whom, and where, the United States is at war.  Importantly, Section 5(b) extends these reporting requirements to uses of force against terrorists and terrorist organizations under the President’s Article II powers.

Taken together, Section 4’s sunset clause and Section 5’s reporting requirements should temper concerns about how the President might expand the war under the “associated forces” rubric in Section 2(b). These provisions mandate that the Congress and the American people know which associated forces, if any, the President uses force against, and it requires Congress to reconsider the authorization, in light of this information, after three years.

Having established (a) that the President can continue to use force against Al Qaeda and the Taliban, (b) that it can use force against the Islamic State, (c) that it can strike other groups to the extent they constitute associated forces engaged in hostilities against the United States, and (d) that it can do these things only where international law permits and for the next three years, the proposal then repeals both the 2001 AUMF and the 2002 Iraq AUMF.

For continued authority to detain the limited number of people currently held at Guantanamo and Parwan---detentions currently predicated on the 2001 AUMF as well as the NDAA for Fiscal Year 2012---the proposal relies on the continued applicability of the NDAA as well as the fact that Section 2 authorizes continued force against the groups for which all such people are believed to be fighting. So the change in authorization should imply no change in any detainee’s status.

Again, this is an effort to put into draft text President Obama’s stated goals.  No doubt it can be improved in many ways.