Armed Conflict Congress Democracy & Elections Executive Branch Foreign Relations & International Law

Does the Corker-Kaine AUMF Bill Really Open the Door to War with North Korea and Iran?

Robert Chesney
Wednesday, April 25, 2018, 2:19 PM

That’s the remarkable claim purveyed this morning in a New York Times editorial. Here is the relevant passage:

Senator Bob Corker (Credit: Flickr/Embassy of Moldova)

Published by The Lawfare Institute
in Cooperation With

That’s the remarkable claim purveyed this morning in a New York Times editorial. Here is the relevant passage:

Although the bill’s supporters say no country could be considered an ‘associated force’ under the proposal, some critics fear that it could be used by the Trump administration to go to war against Iran or North Korea, both of which the United States considers to be state sponsors of terrorism. Given how far Mr. Obama and Mr. Trump stretched the 2001 authorization, such concerns cannot be dismissed.

Actually, such concerns should indeed be dismissed. As I’ve written, there are plenty of issues with the Corker-Kaine bill worthy of debate, but it certainly is not a blank check for war against North Korea and Iran.

The bill is very clear that no state can be categorized as an associated force covered by the proposed law. The Times implies this might not be the case by describing this as a mere claim by proponents of the bill. Not so. Section 8(2) of the bill expressly provides that the phrase “associated forces” cannot by applied to any “sovereign nation.” There’s no wiggle room there. North Korea and Iran are “sovereign nations.”

So why does the Times suggest otherwise? If we click on the link above, we see that the criticism of the bill they have in mind is an op-ed from Elizabeth Goitein of the Brennan Center, who wrote the following on Defense One last week:

And while the bill would not authorize the president to add nation-states to the list, it would permit an easy runaround: by characterizing strikes on countries where terrorists operate — or like Iran, are designated as state sponsors of terrorism — as sanctioned attacks on terror groups.

This version of the claim concedes that the bill forecloses formal coverage of foreign states, but claims that the executive branch could get the same result anyway, and easily so, through pretext: either attacking the foreign government while pretending to attack a terrorist group that is itself covered by the authorization for use of military force and happens to be within that state’s borders, or attacking the foreign government directly based on a claim that is a state-sponsor of terrorism.

Let’s unpack both those claims, starting with the latter.

Under this bill, is the door open for attacking a state-sponsor of terrorism? No. The bill plainly authorizes force only against a list of specific terrorist groups as well as their “associated forces,” and as noted above the bill expressly forbids treating a foreign government as an associated force. There is no state-sponsor of terrorism exception to that prohibition. End of story, as far as the AUMF is concerned. (Whether the executive branch might invoke an Article II national self-defense theory to attack a foreign government involved in sponsoring terrorism is a different question, one that the AUMF bill leaves untouched.)

Does the bill nonetheless open the door to a pretextual attack on Iran or North Korea by dint of the possibility that an otherwise-covered terrorist group might be found in their borders? Let’s note first that the predicate for this scenario (the presence of an AUMF-covered terrorist group within a foreign state’s territory) just isn’t an issue with North Korea, period. (The most egregious part of the editorial, in fact, is dragging the inflammatory prospect of war with North Korea into this debate.)

With Iran, in contrast, it is possible that the predicate could arise. In that case, does the AUMF bill somehow change the status quo in a way that would facilitate an attack on Iran itself? Not remotely. Under the 2001 AUMF that governs currently, there are no geographic constraints. Legal constraint of that kind comes instead from the U.N. Charter framework. Under the proposed bill, that would be exactly the same (except that the bill would force new forms of notification to Congress and congressional debate whenever force is used in novel locations). Put simply: If there is an AUMF-covered group found in Iran, the legal (and diplomatic) constraints on the United States attacking it there will be much the same with or without this new legislation; the new bill is not more of a green light, in other words, than the status quo.

Indeed, under the proposed bill, there are two reasons to think that the space for attacking Iran as such (as opposed to a group within its border) would be much reduced.

First, the 2001 AUMF has explicit language encompassing states that harbor AUMF-covered groups. This was language added for the Taliban as de facto government of Afghanistan in fall 2001, but it’s still there. In the scenario imagined above, with Iran harboring an AUMF covered group, the status quo language might be exploited.

Second, the status quo also includes the 2002 AUMF for Iraq, which a sufficiently-aggressive interpreter might construe to allow for force against a neighboring state based on a claim that the neighboring state is destabilizing Iraq in some fashion or another. The Corker-Kaine bill would outright repeal the 2002 Iraq AUMF, ending any such interpretive risk (in contrast, it repeals the 2001 AUMF as well, but explicitly preserves and continues the authorities conveyed under that earlier statute).

To sum up: There’s plenty to debate about the Corker-Kaine AUMF without introducing notions of President Trump waiving it about as he orders war with North Korea or Iran.

Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.

Subscribe to Lawfare