The White House’s proposed legal authorization for a war against the Islamic State may haunt U.S. foreign policy for years to come.
- By Ryan GoodmanRyan Goodman is professor of law at New York University Law School and co-editor-in-chief of the national security blog, Just Security.
When President Barack Obama announced the start of a U.S.-led bombing campaign in Iraq against the Islamic State on Aug. 7, 2014 he did so on shaky legal footing and without congressional authorization. Now, six months later, the White House has finally presented to Congress its vision for an authorization for the use of military force (AUMF) against the Islamic State. Much debate remains to be had — various versions of the AUMF will be put forward by Congress, debated in committees, and discussed in public before a final bill is passed.
But those Americans who are concerned about an endless war fought across the globe and without oversight have good reason to be worried. We’re in the fourteenth year of the conflict with al Qaeda. Who knows how long the one with the Islamic State will last?
As Congress debates Obama’s proposal, sent up to the Hill on Wednesday, Feb. 11, much of the attention will focus on two issues: whether the legislation will restrict the use of ground forces and whether it will include an expiration date. These are undoubtedly important matters, but preoccupation with them threatens to overshadow another critical decision that has to be made: whether to set limits on the use of force against what are termed “associated forces” of the Islamic State — that is, groups somehow connected to the main organization or fighting in solidarity with it. The decision on that issue may determine whether this AUMF gives the next president the power to embroil America in conflicts and in countries that no current member of Congress could predict.
Maybe this sounds like hyperbole, but it’s not. There’s precedent. In the immediate aftermath of 9/11, Congress passed a both sweeping and vague AUMF granting the president power to attack al Qaeda. But that wasn’t quite enough legal cover for the Obama administration, which instructed the Defense Department’s general counsel to develop a theory of “associated forces” — linking other organizations that affiliate themselves in the fight alongside al Qaeda in one form or another. Under that rationale, the United States has engaged in airstrikes in countries from Pakistan to Yemen that could never have been anticipated by Congress back in on September 14, 2001
This time around, the White House wants to enshrine that theory in congressional statute. The president’s proposed AUMF against the Islamic State would apply to “associated persons or forces” which is written to include organizations “fighting for, on behalf of, or alongside [the Islamic State].”
Once upon a time, the Obama administration narrowly construed the organizations that fell under the umbrella of the 2001 AUMF. But the legal gymnastics used by this administration to claim that the Islamic State is covered by the 2001 AUMF (despite the fact that al Qaeda officially split from the Islamic State in the spring of 2014) should give pause to anyone concerned about the possibility of a dangerously expansive war. What’s more, the language that senior administration officials have used in describing which groups are and are not “associated” is also very broad. It includes groups that take up “hostilities against the United States or its coalition partners.” In other words, it might apply to a group that threatens another country directly, but not the United States.
Recent statements by the Defense Department suggest the test may become even more malleable. Last year, as cruise missiles started landing in Syria, Pentagon Press Secretary Rear Adm. John Kirby suggested that targeting an organization described as the Khorasan Group was within Congress’s authorization under the Sept. 14, 2001, AUMF. The rationale: The group is allegedly an affiliate of the Nusra Front, itself an al Qaeda affiliate. His remarks conjure the image of linking such groups in a daisy-chain to justify their bombing. And just last week, Kirby suggested that the 2001 authorization also covers drone strikes against al-Shabab militants in Somalia because they “pose a threat not just to the interests of the people in Somalia and in the region, but to American interests.”
It is difficult to know if this is the Pentagon’s considered legal opinion. Prior to Kirby’s statement, it appeared that members of al-Shabab were targeted only if they were also personally members of al Qaeda, at least according to May 2014 testimony by the Pentagon’s general counsel and War Powers reports that the administration has sent to Congress. Part of the reason we don’t know the answer is because the administration is not compelled to report which groups fall under the 2001 AUMF umbrella.
But if the authorization to strike al Qaeda targets has been far reaching, the Islamic State AUMF is even broader. Already, groups are popping up around the world — from Libya to Egypt’s Sinai Peninsula to the mountains of Afghanistan — pledging allegiance to the Islamic State’s self-proclaimed caliph. That puts them all in the cross-hairs. But why stop there?
The president’s proposal would go a step further than earlier measures by authorizing force against associated forces of “any closely-related successor entity” to the Islamic State. In other words, the president is asking Congress to endorse his theory that looped in the Islamic State under the 2001 AUMF as a “successor” to al Qaeda. More to the point, he’s asking Congress to authorize force against “associated forces” of the Islamic State’s future successors. As Harold Koh, Obama’s former legal advisor in State Department has written, such a theory involves “a dangerous methodology whereby the current and future Presidents can cite ‘factual evidence of common [al Qaeda] DNA’” to go to war with groups far removed from the original authorization of force.
What’s more, the final draft of Obama’s AUMF includes no geographic restrictions. Some early draft AUMF proposals — such as one by Sen. Tim Kaine (D-VA), another by Sen. Rand Paul (R-KY), and a third by Rep. Adam Schiff (D-CA) — would provide authorization to fight the Islamic State only in Iraq and Syria, meaning that the president would have to return to Congress or rely on his more limited constitutional authorities as commander-in-chief if he wanted to target members of the Islamic State in another country.
The consensus sentiment on the Hill, however, agrees with the president and opposes any geographic constraint. Last December, for example, the Senate Foreign Relations Committee approved a draft Islamic State AUMF that excluded such restrictions. The committee squarely rejected an amendment by Paul that would have specifically precluded force “outside of the geographic boundaries of Iraq and Syria.” And that vote was under Democratic leadership. With a Republican majority, the broader AUMF is almost sure to pass. The worrisome thing is that it is doubtful whether many members of Congress currently understand that the lack of geographic constraints will also apply to the Islamic State’s so-called associated forces (plus associated forces of the Islamic State’s successors).
When all is said and done and when the AUMF has made it through the Senate Foreign Relations Committee and House Foreign Affairs Committee, the final draft will likely impose few constraints on the use of ground combat forces. Even though the administration’s proposal would provide that the authorization includes “no enduring offensive ground combat operations,” Republican leaders balk at any congressionally imposed limits. With people like Sen. John McCain (R-AZ) saying that any such congressional curtailment of military operations “is a violation of the Constitution,” it is difficult to see much room for compromise.
The draft AUMF written by Kaine, another by Sen. Bob Menendez (D-NJ), and the proposal by the libertarian Paul all limit ground combat forces but make exceptions for “operations against high value targets.” The next president, whoever she or he is, will likely have fairly open license from Congress to deploy ground combat forces on a sustained basis to fight the Islamic State’s affiliates — and perhaps those affiliates’ affiliates, wherever they may be.
But what about the president after that? Those Americans concerned about endless war would hope that Congress will be wise enough to include an expiration date on the AUMF to prevent it from being used indefinitely. But don’t count on it. The version introduced by the White House does include a three-year “sunset clause,” as these legal expiration dates are known, as did many of the earlier versions proposed by various members of Congress. But other drafts didn’t.
Moreover, the White House has indicated that it is open to a sunset clause with a pretty extended twilight. When Secretary of State John Kerry told Congress last December that the administration would support a three-year sunset, he added a caveat: “subject to provisions for extension.” Late last month, Joint Chiefs Chairman Gen. Martin E. Dempsey made a statement opposing an expiration date: “Constraints on time, or a ‘sunset clause,’ I just don’t think it’s necessary.” Dempsey will likely say the same when the Senate calls him to testify about the draft AUMF. So expect the sun to set on the prospect of a sunset clause.
That’s too bad. If the final text excludes a sunset or includes easy “provisions for extension,” Congress may be authorizing presidents well into the future to wage war against the Islamic State as well as any new groups that their administration deems sufficiently associated with it. Americans may find themselves in wars not really of Congress’s choosing, and in countries that make America less secure not more.
A final concern is oversight. The 2001 AUMF is a tersely worded statute that includes no reporting requirements. Perhaps the forthcoming one will set up a better system of making the Defense Department and the president accountable to Congress.
There are glimmers of hope: The Senate Foreign Relations Committee draft from December would have required the administration to include “a list of the organizations and entities to be targeted by military operations” and “the geographic scope of military operations.” That would be a step in the right direction. But we are a long way from seeing congressional support for such an element in a final AUMF, especially if the CIA and military are resistant. And indeed the White House proposal offers very little except an amorphous statement that the president will report to Congress “on specific actions taken pursuant to this authorization.”
So let’s put all of those elements of a draft AUMF together and look at the likely document Obama will eventually sign into law: Congress will authorize force against unknown future associated forces of the Islamic State, with no geographic constraints, with little or no limits on ground forces, and little or no reporting requirements, into the indefinite future.
That blueprint is especially worrisome — since nobody can predict who will next occupy the Oval Office. A hawk (imagine, for a moment, President Lindsey Graham), could send U.S. ground troops to Libya and keep them there until a supermajority in the Senate makes him reverse course. On the other hand, an isolationist (President Rand Paul doesn’t seem impossible) could take advantage of the lack of congressional oversight to avoid taking action where a real threat to the United States could be in the offing.
Those seemingly opposite concerns have a similar solution: At a minimum, the president should report to Congress any organizations that he considers an “associated force” or party to the armed conflict. Similarly, the president should have to report on the geographic scope of U.S. military operations. Senator Kaine’s draft AUMF perhaps strikes the best available compromise. His would pre-authorize the president to take the fight to associated forces on condition the administration provides Congress “a list of those organizations or individuals immediately and directly fighting alongside [the Islamic State] for purposes of actions taken pursuant to this joint resolution.”
The potential for the war to expand around the world cries out for a genuine expiration date. Americans should not be fighting the Islamic State under the same legal framework 15 years from now. A real sunset clause would ensure that Congress will have an opportunity to re-evaluate the need for force. Congress should ensure for itself a continued role in the decisions to send American soldiers into battle, and the next administration should know that it will have to justify its own choices when the time comes for renewal.
If the last 14 years of continual warfare has taught us nothing else, it should be this.
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