Senator Menendez's Draft ISIL AUMF

By Benjamin Wittes, Wells Bennett
Sunday, December 7, 2014, 9:25 PM

Last Thursday, Bloomberg View’s Josh Rogin had a piece on a draft ISIL authorization put forth by Senator Bob Menendez, the Chairman of the Senate Foreign Relations Committee. Based on Rogin's report, it seems Menendez's legislation was offered as an alternative to a bill authored by Senator Rand Paul. But as Rogin notes, of the pair, only Senator Paul's bill repeals the 2001 AUMF. The Menendez proposal would not repeal or sunset, and actually barely comments upon, the 2001 AUMF and its current interpretation by the executive branch.

Senator Menendez's bill is otherwise---with some significant differences---similar to other proposals that have been floating about for an Islamic State authorization for force. It shares with a recent proposal on Lawfare, for example, a sunset provision in three years and certain reporting requirements (though they are relatively thin). It differs in defining associated forces, against which it also authorizes force, quite narrowly and in seeking to limit the use of ground forces.

Perhaps the most important difference, however, is the treatment of the 2001 AUMF, which the proposal on Lawfare would repeal and the proposal published on Just Security would sunset. The Menendez language, by contrast, announces the demise of 2002 Iraq AUMF but has nothing to say (explicitly, anyway) about the statute enacted earlier, in response to the 9/11 attacks. That's interesting, considering the well-demonstrated strains on 2001 AUMF, and the Obama Administration's controversial claim that the statute furnishes legal authority to use force against ISIS in Iraq and Syria.

To be sure, the Menendez bill's "applicability" clause does hint in the 2001 statute's direction, in stating that the new proposal's provisions "pertaining to the authorization of force against the Islamic State of Iraq and the Levant shall supersede any preceding authorization for the use of military force" (emphasis added). But it’s not at all clear what that means. Perhaps the idea is to take the 2001 AUMF off the table, with respect to ISIL operations only; maybe there's a different, broader goal here.  It's hard to say, given the drafters' explicit repudiation, in neighboring language, of the 2002 AUMF.

It’s unclear why Senator Menendez's legislation doesn't specifically touch the 2001 AUMF.  There may be disagreement within the Foreign Relations Committee about how to handle residual counterterrorism operations that rely on the document---Guantanamo detention, for example, or ongoing operations against Al Qaeda or the Taliban. Another possibility is that Senator Menendez desires not to adjust the background law any more than is needed to give congressional sanction to a new campaign against ISIS; he may also want to hold the 2001 AUMF sunset discussion sometime later down the road.

Whatever the motivation, we expect to hear more about this and other AUMF issues during Monday afternoon's Senate Foreign Relations Committee hearing on ISIL authorization.