Foreign Relations & International Law

A Primer on Sen. Merkley’s Proposal to Replace the AUMF

Scott R. Anderson
Friday, May 25, 2018, 1:03 PM

On Wednesday evening, Sen. Jeff Merkley (D.-Ore.) introduced new draft legislation to repeal and replace the 2001 authorization for use of military force currently used to authorize most U.S. counterterrorism operations.

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On Wednesday evening, Sen. Jeff Merkley (D.-Ore.) introduced new draft legislation to repeal and replace the 2001 authorization for use of military force currently used to authorize most U.S. counterterrorism operations. His proposal builds on a “statement of principles” he released last week following a Senate Foreign Relations Committee hearing on the other such proposal currently being debated, a replacement AUMF co-sponsored by Chairman Bob Corker (R.-Tenn.) and Sen. Tim Kaine (D.-Va.) along with a bipartisan coalition of other influential senators.

In his statement, Merkley expressed “fundamental concerns” with the approach taken by the proposed Corker-Kaine AUMF, which, he implied, would delegate too much of Congress’s constitutional authority to declare war to the president. Consistent with these concerns, his bill—entitled the “Constitutional Consideration for Use of Force Resolution”—would make Congress a more integral part of these decisions by requiring affirmative congressional authorization for any expansion in the scope of the authorization for the use of force that it provides. This contrasts with the Corker-Kaine AUMF proposal, which would allow the president to make such determinations so long as Congress is notified and has a chance to enact legislation reversing it through certain expedited procedures. And it would be a dramatic departure from the status quo under the 2001 AUMF, which currently allows the president to unilaterally expand counterterrorism operations to new armed groups and foreign countries without consulting Congress, based on (sometimes tenuous) interpretations of the 2001 AUMF’s text and intent.

Inspired by Bobby Chesney’s primer on the Corker-Kaine AUMF, this post takes a close look at the provisions of the Merkley proposal and how they operate.

What Would It Do?

By design, the Merkley bill would replace both the 2001 AUMF and the separate 2002 AUMF regarding U.S. military activities in Iraq, the latter of which is currently only used as redundant authority for certain activities targeting the Islamic State. Once enacted, the Merkley bill would repeal the 2002 AUMF immediately but leave the 2001 AUMF in place for six months. This would provide a window for transitioning ongoing activities to the new set of authorities, or winding down any current activities that will no longer be authorized under the proposal.

The plain language of the legislation directly authorizes an array of activities that is far narrower than that currently being pursued under the 2001 AUMF. Specifically, it authorizes the use of “all necessary and appropriate force” against al-Qaeda, ISIS, and the Taliban in both Afghanistan and Iraq for the purposes of protecting “the United States and its compelling interests”—defined as any U.S. territory, U.S. armed forces, or U.S. citizens—from attacks by the same groups. This is in contrast to the Corker-Kaine AUMF proposal, which is specifically designed to continue authorizing the current scope of U.S. counterterrorism operations.

The proposal sets limits on how any force it authorizes may be used. Any such use of force must comport with U.S. obligations under international law and cannot be used to target any foreign state. The Merkley bill incorporates the definition for “foreign state” from the Foreign Sovereign Immunities Act, which includes both political subdivisions of foreign states and their agencies and instrumentalities. This makes clear that the bill cannot be used to target Iran’s Islamic Revolutionary Guard Corps or other quasi-governmental entities, a concern that some have raised in relation to a similar provision in the Corker-Kaine AUMF.

Unlike the 2001 AUMF and the Corker-Kaine AUMF proposal, the Merkley bill does not allow the president to unilaterally expand the scope of authorized activities to new armed groups or foreign countries. Instead, the president may request such an expansion by sending one of three different types of written requests to Congress, who must enact any changes through legislation.

First, the president may ask Congress to expand the scope of authorization to include the use of force against a new organized armed group. To be eligible for such designation, that organized armed group must satisfy the following three prerequisites:

  • It cannot be a foreign state, as defined by the Foreign Sovereign Immunities Act;
  • It must be engaged in active hostilities against the United States as a party to an ongoing armed conflict involving the Taliban, al-Qaeda, or ISIS; and
  • It must demonstrate a credible ability to conduct a substantial attack against compelling U.S. interests, defined as any U.S. territory, U.S. armed forces, or U.S. citizens.

As the Merkley bill is explicit that its direct authorization does not extend to “associated forces, successor forces, or forces otherwise related to” al-Qaeda, ISIS, and the Taliban this designation procedure is the only mechanism for extending the scope of authorization to armed groups beyond the “core” of these three organizations—including to many entities currently being targeted pursuant to the 2001 AUMF. And certain al-Qaeda, ISIS, or Taliban affiliates currently targeted under the 2001 AUMF may not meet the bill’s new requirement that designated groups have the capacity to attack U.S. territory or persons. Compare this with the Corker-Kaine AUMF, which only requires that such affiliates be engaged in hostilities with the United States or U.S. coalition partners to fall within its scope.

The president would also be allowed to submit a request asking Congress to extend the law’s geographic scope to foreign countries other than Afghanistan and Iraq. Such requests cannot, however, provide authorization for the use of “ground forces in a combat role[,]” which the legislation deals with separately. That said, this category of activity explicitly excludes “[s]mall detachments of special operations forces” and forces deployed pursuant to other authorities, meaning these activities—as well as activities that do not involve the deployment of ground forces, such as air strikes—could be authorized by such a request.

Finally, bill allows the president to ask Congress to authorize the use of ground forces in a combat role in a new foreign country to which the law has already been extended. This added level of authorization appears to be intended to prevent unintended mission creep from turning counterterrorism operations into enduring military presences. Additional authorization is not needed for Afghanistan or Iraq, however, as the proposal’s direct authorization for the use of force in these countries does not impose any limitations regarding the use of ground forces.

Once the president has made one of these requests, any member of Congress may introduce a joint resolution to implement the requested change. This joint resolution is in turn eligible for special “expedited consideration” procedures designed to ensure a swift and unobstructed congressional debate, as described in greater detail below. Each request, however, must be considered and debated separately. This requirement is no doubt intended to ensure careful congressional consideration, particularly where the expansion of hostilities to a new foreign country or use of ground troops in a combat role is involved. But in practice it may prove onerous. For example, if the president wishes to maintain the current scope of U.S. counterterrorism activities following the enactment of the proposal, he or she would have to make more than 20 individual requests, each of which would have to be debated separately by Congress.

What About Detention?

The perennially controversial subject of detention warrants special attention. Unlike the Corker-Kaine AUMF, the Merkley proposal never explicitly addresses detention issues. In authorizing the use of “all necessary and appropriate force[,]” however, it uses the same language as the 2001 AUMF. Thus it presumably authorizes the same scope of activities, which the Supreme Court found to include law of war detention in Hamdi v. Rumsfeld.

The detention facility at Guantanamo Bay raises additional issues. Under the legislation’s system for managing the geographic scope in which force is used, the executive branch would apparently have to ask Congress to expand the scope of authorization to Cuba if it wishes to continue operating the Guantanamo Bay facility. Obviously, this request has the potential to be highly controversial and there is a substantial chance that Congress would choose not to implement it—forcing detention operations at Guantanamo Bay to cease within six months of the bill’s enactment.

How Long Would It Last?

The proposal contains two separate sunset provisions: one for each organized armed group within its scope and one for the law itself. In this sense, it differs notably from both the 2001 AUMF and Corker-Kaine AUMF, neither of which includes any defined termination dates (though the latter would allow for the expedited consideration of legislation to modify or repeal it every four years).

In regard to organized armed groups, the proposal would require the president to certify to Congress every six months that each such armed group the legislation covers—including al-Qaeda, ISIS, and the Taliban—continues to satisfy the three requirements for designation described above. If the president cannot do so, then the authorization to use force against that group ends 60 days after the due date.

The law as a whole expires three years after its enactment. At least 90 days in advance of this date, however, the president must submit a report to Congress providing a recommendation as to whether the law should be extended, either with or without modification. Any member of Congress could then introduce a joint resolution seeking to extend or modify the law, which would be eligible for the special “expedited consideration” procedures described below.

Notably, it’s not clear that this latter joint resolution must implement the president’s recommendation in order to qualify for expedited consideration, as is the case with joint resolutions introduced in response to the three types of presidential requests discussed above. The law also does not define the period of time for which it may be extended nor the manner in which it may be modified, presumably leaving both to Congress to define. This gives Congress substantial leeway in amending the terms of the proposal once it expires, using its expedited consideration procedures.

What is the “Expedited Consideration” Process?

At the heart of the legislation are the special “expedited consideration” procedures that it applies to certain key legislation—specifically, joint resolutions introduced in response to the three different types of presidential requests discussed above and joint resolutions to extend or modify the law itself prior to its expiration. The specific procedures used by the proposal are taken almost verbatim from the Base Realignment and Closure Act of 1990 (the so-called “BRAC Act”), and thus are familiar to many members of Congress.

When a member of Congress introduces a joint resolution that is eligible for expedited consideration, that resolution is referred to either the SFRC or the House Foreign Affairs Committee. This committee then has 20 days to consider the proposal, at which point it is automatically discharged and placed on the calendar of the house of Congress in question. After three days, any member of that house may then motion to proceed to consideration of the joint resolution, which is not subject to debate. If the house in question votes to proceed, then it must immediately consider the joint resolution itself. Debate is limited to 30 hours, which is divided evenly between those favoring and opposing the joint resolution in question. At the conclusion of this period, the house in question must cast a final vote on the matter. Throughout this process, relevant motions are exempted from many of the procedural measures that are generally used to delay or obstruct legislation, including Senate filibusters. And if the other house of Congress enacts a joint resolution on the same subject while a joint resolution is being debated, then the house in question may effectively substitute that version for its own, limiting the need to restart the process.

These procedures effectively guarantee that qualified joint resolutions will receive a vote—at least on a motion to proceed, if not on the joint resolution itself—within 24 days of being introduced. No doubt this is intended to assuage concerns that legitimate and necessary efforts to expand the scope of, modify, or renew the AUMF will be delayed or obstructed as a result of congressional dysfunction or political maneuvering.

That said, the timeline provided by this process may not be short enough for individuals who fear that tactical battlefield decisions will at times hinge on the scope of the AUMF—for example, if an enemy armed group were to unexpectedly re-name itself, fracture, or recruit another group as co-belligerents in the middle of hostilities with U.S. forces. The president’s inherent Article II authority to use force would no doubt help mitigate any threat such scenarios might pose to U.S. troops or U.S. nationals, but awaiting additional congressional authorization might still prove detrimental to U.S. strategic objectives and coalition partners. And relying too heavily on the president’s Article II authority to fill such gaps may encourage broader assertions of that authority, aggrandizing executive power in ways that are less prone to statutory limitation than aggressive interpretations of an AUMF.

Regardless, the Merkley bill’s “expedited consideration” procedures provide a far more certain path than the Corker-Kaine AUMF’s own expedited procedures, which ensure a procedural vote but ultimately do not protect qualified joint resolutions from filibusters or certain other procedural obstacles. Further, as the legislation passing through the Merkley bill process is granting, as opposed to revoking, authorization to the president, it is inherently less vulnerable to presidential veto. Indeed, unlike the Corker-Kaine AUMF, the proposal does not even provide for any special procedures in response to a veto.

As with the Corker-Kaine AUMF, however, there are constitutional limits on the Merkley proposal’s ability to guarantee these procedures. The Merkley bill explicitly adopts these procedures as an exercise of each house of Congress’s individual constitutional rulemaking powers and acknowledges that they are subject to change by future Congresses through each chamber’s own rulemaking procedures. In the case of the BRAC Act, individual houses of Congress have occasionally used this authority to supersede the procedures provided for by statute.

What About Transparency?

Finally, the bill impose several new reporting requirements on the executive branch. Due every six months, these reports would not only be sent to Congress but published in the Federal Register. That said, they can include classified annexes not subject to public disclosure. In addition to these written reports, the Merkley bill requires the Defense Department to brief relevant congressional bodies on the activities undertaken pursuant to the AUMF upon request at least every six months.

The Merkley bill’s most important reporting requirements relate to its scope. The president is required to provide lists of (a) the armed groups against which the United States has used force pursuant to the AUMF in the prior six months and (b) each foreign country in which such action took place, including the specific geographic locations within each country. These lists are required to be in unclassified form, meaning they are subject to mandatory public disclosure via the Federal Register. For each armed group, the president is also required to describe the extent to which it has directly targeted or threatened a compelling U.S. interest during the prior six months. And for each foreign country listed, the president has to describe the United States’ various policy goals for that country, assess the bilateral and multilateral impact of its actions, and articulate a strategy for creating conditions that no longer require the use of force there.

The Merkley proposal also requires reporting on the level of both combatant and civilian casualties arising from any uses of force it authorizes. In regard to the latter, the president must discuss the level of civilian casualties calculated by both the U.S. government and “credible and reliable nongovernmental entities” and then account for any differences between the two. In addition, the president must describe any mechanisms the United States uses to prevent and limit civilian casualties as well as its process for investigating them.

Finally, the Merkley bill nods towards fiscal responsibility by requiring the executive branch to report on the amounts expended in support of military operations and other activities pursued under the AUMF both during the prior period and in the aggregate.

These reporting requirements are unique to the Merkley proposal, though several track other recent reports that Congress has requested but that the Trump administration has not yet provided or made public. While such redundancies are often ill-advised, establishing routine reporting requirements and tying them more directly to the process for authorizing U.S. counterterrorism operations may encourage more forthcoming and timely executive branch responses.

What’s Next?

Like Corker and Kaine before him, Merkley deserves credit for seriously engaging in the debate over how Congress should re-engage with its war powers. While not everyone will agree with his approach, there is no denying that his proposal is a serious and carefully developed proposal that responds to many points raised in recent debates. And for those who share Merkley’s concerns about ceding Congress’s role in authorizing war, the Merkley bill may serve as a useful model for how an ideal authorization should look.

At present, however, it is unclear how much support the bill has beyond Merkley himself, who is its only listed sponsor. To become law, any such proposal will need bipartisan support from a majority of members in both houses of Congress—two-thirds if President Trump chooses to veto, which is possible given that his administration has openly opposed replacing the 2001 AUMF or otherwise curbing his authorities in regard to the use of force. And one need only compare the Corker-Kaine AUMF to prior proposals by its key sponsors to understand the sorts of compromise that bipartisan support is likely to require. Simply put, many members of Congress appear to be more comfortable with delegating broad authority over the use of force to the executive branch and supportive of the current scope of U.S. counterterrorism operations. Even if they would be willing to depart from the status quo under the 2001 AUMF, they may not be willing to accept some of the risks and limitations that the Merkley proposal entails in regard to both.

Several elements of the proposal are significant improvements on prior proposals that warrant inclusion in any final AUMF. The expedited consideration procedure it adapts from the BRAC Act is one such example. Another is its use of sunset provisions, the immense importance of which I’ve written on elsewhere. Other elements, however, could be adjusted to address concerns regarding its potential impact on U.S. counterterrorism operations. For example, the scope of activities that the Merkley bill directly authorizes could be expanded to include a broader swathe of current U.S. counterterrorism operations. Or the requirement that each presidential request be considered separately could be removed, allowing Congress to authorize complex operations with a single vote. Indeed, one could even imagine some mechanism that would give the executive branch a limited ability to designate new armed groups within an existing combat theatre where such decisions are most likely to have short-term tactical implications, while allowing Congress to retain authority over the broader scope of the conflict.

Supporters of the Merkley bill are unlikely to see these adjustments as ideal or even desirable. But such changes may well be necessary for the Merkley proposal to gain the congressional support it will need to be enacted into law. Absent such compromise, there is a substantial risk that this proposal and other reform proposals will remain largely academic exercises, leaving the status quo under the 2001 AUMF—including Congress’s diminished role in deciding when and how the United States uses force—solidly in place.

Scott R. Anderson is a fellow in Governance Studies at the Brookings Institution and a Senior Fellow in the National Security Law Program at Columbia Law School. He previously served as an Attorney-Adviser in the Office of the Legal Adviser at the U.S. Department of State and as the legal advisor for the U.S. Embassy in Baghdad, Iraq.

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