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Six Questions Congress Should Ask the Administration about its ISIL AUMF

Jack Goldsmith, Steve Vladeck, Ryan Goodman
Friday, February 20, 2015, 11:00 AM
[Cross-posted at Just Security] With congressional hearings on the Obama Administration’s proposed Authorization for the Use of Military Force (AUMF) for the Islamic State on the horizon, we propose six questions that Members of Congress should ask Administration witnesses:

1. What, exactly, is our strategic military objective?

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[Cross-posted at Just Security] With congressional hearings on the Obama Administration’s proposed Authorization for the Use of Military Force (AUMF) for the Islamic State on the horizon, we propose six questions that Members of Congress should ask Administration witnesses:

1. What, exactly, is our strategic military objective?

As numerous commentators have pointed out, the Administration’s draft is silent on perhaps the most important question—exactly what is the goal of the military force Congress is being asked to authorize? As Steve wondered back in September,
Is the Administration’s goal to do whatever it takes to destroy or degrade ISIL . . . .? To keep ISIL out of Iraq?  To defend particular operations in particular theaters?  To accomplish anything in particular in Syria?  To somehow ensure that ISIL does not have capabilities to strike the United States?
Even the pre-ambular language in the draft AUMF lacks much indication about the administration’s strategy.  Without a clearly defined objective, Congress cannot assess why the President is asking for its authorization for the use of military force; what force ought to be authorized; or how Congress could ever ascertain (e.g., when it’s time to reauthorize the bill) whether its purposes have been met).  Indeed, all of the other questions about the Administration’s bill pale in comparison to this one: What, exactly, is the mission’s objective?  Some past AUMFs have contained strategic guidance, and some have not.  The important point is that Congress should press the administration on this issue, and that the administration should explain its goals concretely.

2. What is an “enduring” “offensive” ground combat operation?

Section 2(c) of the draft provides that the bill “does not authorize the use of the United States Armed Forces in enduring offensive ground combat operations.”  This limitation on the authorization likely makes no difference to the president’s authorities if the administration’s independent interpretation of the 2001 AUMF to authorize force against ISIL remains in place (see below).  And while such a limitation would clearly be lawful, reasonable minds can differ on whether it is a good idea to include in the new AUMF.  (The answer to whether it is a good idea turns in large part on the President’s strategic objectives, noted above.)  But taking the President’s proposal seriously, Congress should push the administration to clarify what it means by the terms “enduring” and “offensive.”  The President has sent thousands of U.S. troops to Iraq since last August.  They have apparently been serving in a defensive posture.  As ISIL gets closer to Baghdad, for example, will self-defense require “offensive” strikes against ISIL?  What is the administration precluding under the draft AUMF by carving out certain defensive actions?  And what does “enduring” mean in this context?  Does it refer to the length of time during which the operation is ongoing? The scope of the operation? Some undefined relationship between time and scope? Something else?  It is hard to see how a limit on “enduring offensive” operations has any teeth beyond ruling out the kind of massive ground offensive that we saw in 2003, which this President is certainly not going to repeat in any case.  Even if the Administration won’t define “enduring,” its witnesses should be asked to provide examples of what would, and would not, count.

3. What’s wrong with Jeh Johnson’s definition of “associated forces”?

As Jack, Ryan, and Marty Lederman have all documented in different respects, the Administration draft’s definition of “associated forces” is far broader than any interpretation that has previously been offered by the U.S. government. That provision appears in section 5:
the term ‘‘associated persons or forces’’ means individuals and organizations fighting for, on behalf of, or alongside ISIL or any closely-related successor entity in hostilities against the United States or its coalition partners.
Contrast this language with the far simpler and narrower definition provided by then-DoD General Counsel Jeh Johnson in a February 2012 speech: “(1) an organized, armed group that has entered the fight alongside [ISIL], and (2) is a co-belligerent with [ISIL] in hostilities against the United States or its coalition partners.” Johnson’s formulation has apparently been the consensus standard within the Administration under the 2001 AUMF.  One question is why Johnson’s definition isn’t sufficient for the new AUMF.  After all, “co-belligerency” is a concept that has been put forward by the administration in litigation and accepted by federal courts.  Why does the Administration’s draft omit this idea? And why did the administration add novel language about “successor” organizations that are not closely associated with ISIL? This new language is akin to the gloss that the administration used to extend the 2001 AUMF to ISIL. Congress should ponder whether such an extension is a good idea, and if so, whether it can be addressed in a less open-ended way.

4. What "specific actions" will the Administration report to "Congress" (and why not also the public)?

Section 4 of the Administration’s draft bill requires the President to report to Congress “at least once every six months on specific actions taken pursuant to this authorization.” This is a good idea.  But Congress should push the administration to clarify two points.  First, exactly what is a “specific action” that must be reported under the terms of the provision.  And second, will such disclosures also be made public? Presumably, one purpose of the reporting provision is to ensure that Congress is fully informed as to the continuing scope of the conflict when the authority provided by the bill sunsets three years after enactment. What actions does the Administration believe satisfy that purpose, and what types of actions does the Administration believe should not be reported to the public as well as the Congress?

5. Will ISIL still be covered by the 2001 AUMF once this bill is enacted?

As close observers well know, the Obama Administration has, since September, advanced the controversial claim that at least some military force against ISIL comes under the 2001 Authorization for the Use of Military Force, enacted one week after September 11 and directed at the groups responsible for those attacks—i.e., al Qaeda and the Taliban. The Obama Administration has never repudiated this argument. Moreover, despite suggestions that any draft AUMF for ISIL expressly address the bill’s relationship with the 2001 AUMF (and, perhaps, include language expressly superseding the 14-year-old statute as applied to ISIL, as the SFRC AUMF proposal did last year), the Administration’s draft is silent on the subject.  This has led many of us to infer the administration thinks the 2001 AUMF will continue as an independent authorization for force against ISIL regardless of what the new AUMF says.  Congress should ask the Administration whether the 2001 AUMF will remain an additional font of power to use force against ISIL if the new AUMF is passed. We suspect that the administration will argue that the 2001 AUMF will no longer be necessary once the new AUMF is drafted.  If that is so, Congress should the press the administration about why it did not include an explicit disclaimer in the draft itself.

6. What happens in 2018?

What happens if and when the ISIL AUMF expires, as it will in 2018 if it is not reauthorized? Because the current draft says nothing at all about the 2001 AUMF, there are two possibilities: Either (1) the expiration of an ISIL AUMF will have no bearing on the government’s continuing authority to act under the 2001 AUMF (including against ISIL); or (2) it will. It is unclear what purpose a sunset in the ISIL AUMF serves if after it expires, the next Administration can simply revert back to the 2001 AUMF on the theory that it applies to ISIL. While President Obama will no longer be in office if and when that happens, it seems fairly important to ascertain now what position his Administration—as the author of this bill—takes on the question.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.
Steve Vladeck is a professor of law at the University of Texas School of Law. A 2004 graduate of Yale Law School, Steve clerked for Judge Marsha Berzon on the Ninth Circuit and Judge Rosemary Barkett on the Eleventh Circuit. In addition to serving as a senior editor of the Journal of National Security Law & Policy, Steve is also the co-editor of Aspen Publishers’ leading National Security Law and Counterterrorism Law casebooks.

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