Written by Prof. William C. Banks, Dr. Myriam Feinberg, and Dr. Daphné Richemond-Barak.
While the efficacy of strikes against the Islamic State of Iraq and the Levant (also known as Daesh – Al Al-Dawla Al-Islamiya fi al-Iraq wa al-Sham – in Europe) is questioned, lawyers have, in the past months, grappled with the legal frameworkforming the basis of the strikes. This post focuses on the United States and provides a useful summary of the issues at stake, the existing instruments and the options available to the US administration.
In a speech on the ‘Strategy to Counter ISIL’ delivered on the eve of the thirteenth anniversary of the 9/11 attacks, President Obama stated that he did not need authorization from Congress for the strikes.
The days before the speech had seen much speculation about the intended strategy of the US government in Iraq and Syria in general, and the legal justifications for US actions in particular. The main question was whether the Obama administration would rely on Article II of the US Constitution to justify the strikes, the 2001 Authorization to Use Military Force (AUMF), the 2002 AUMF for Iraq or a brand new authorization from Congress.
On September 10, 2014, the administration announced that the US could rely on the 2001 AUMF to justify strikes against ISIL in Iraq and Syria. Later, the possibility of using the 2002 Iraq AUMF was raised. Then, in a surprising turn of events, President Obama stated in early November that he would, in fact, seek Congressional authorization for the military campaign against ISIL.
Several legal issues emerge from President Obama’s decision to seek Congressional authorization in the fight against ISIL – months after the strikes already began. First is the question of the legality of the United States’ actions until now, in particular because the strikes are likely to continue even if a new AUMF is not adopted. It also raises a number of questions with regard to the scope and nature of a new AUMF, and, more generally, as to the respective roles of Congress and the President in authorizing the use of force. This post will analyze the suitability of Article II and the two existing AUMFs to American actions against ISIL, before addressing the possibility of a new AUMF.
The current basis for strikes
Some argue that, under the War Powers Resolution of 1973, the US President is allowed to use military force for 60 days before having to obtain authorization from Congress. Based on this reading, any action against ISIL justified under the War Powers Resolution is no longer valid. But President Obama did not explicitly rely on the WPR. Instead, he stressed he had “the the authority to address the threat from ISIL, but [that he] believe[s] we are strongest as a nation when the President and Congress work together.”
It has been argued that the President can act under Article II of the US Constitution, which allows the President to initiate defensive military action if there is a compelling US national security interest or if the military operation is limited in nature, scope, and duration. This constitutional argument has the advantage of allowing the President to act immediately and unilaterally. Article II formed the basis for the US airstrikes in Libya in 2011, without Congressional authorization. Indeed, the administration argued in the Libyan context that “because U.S. military operations [in Libya] are distinct from the kind of ‘hostilities’ contemplated by the [War Power] resolution,” it did not have to obtain further authorization.
The administration’s decision was criticized as contrary to the Department of Justice’s view that, under the 1973 War Powers Resolution, any military action that lasts more than 60 days requires a formal authorization from Congress. On the other hand, when the situation in Syria took a turn for the worse in 2013, the President stated that he had “the authority to carry out this military action without specific congressional authorization,” but then went on to say ‘I know that the country will be stronger if we take this course and our actions will be even more effective.’ When it became clear that the authorization would not so easily be obtained, the administration backed down and alternative means were used to deal with the deteriorating situation in Syria.
The two existing AUMFs provide a problematic legal basis for strikes against ISIL. The 2001 AUMF authorizes force against those responsible, directly or indirectly, for the 9/11 attacks. The 2001 AUMF has also been used to target Al-Qaeda individuals and groups, the so-called “associated forces.” While ISIL used to be affiliated with Al-Qaeda, the link has become more tenuous and in February 2014, Al-Qaeda condemned the activities of ISIL and cut all ties with the group (the situation might further evolve as a rapprochement between the two groups has recently been reported). The uncertain relationship between ISIL and Al Qaeda calls into question the relevance of the 2001 AUMF to the ongoing airstrikes in Iraq and Syria. An additional concern is that the instrument has been increasingly stretched over the past 13 years and may be repealed, as President Obama himself has noted.
The suitability of the 2002 Iraq AUMF to contend with the ISIL threat has also been questioned. Temporal and geographical considerations strain the 2002 AUMF in reaching the fight against ISIL in Iraq and Syria – particularly given that the Administration announced the end of the war in Iraq in 2011, that it is ‘unclear why a congressional authorization to invade Iraq should give the White House authorization to fight a war in Syria’, and that the President has advocated for a repeal of the Iraq AUMF as well. Though, as in every aspect of this debate, arguments have been heard on both sides, the administration has not pushed this argument further.
The way forward – limited authorization or general powers?
After months of airstrikes in Iraq and Syria, President Obama has declared that ‘it makes sense for us to make sure that the authorization from Congress reflects not just our strategy over the next two or three months, but our strategy going forward.’ President Obama may seek a broadly worded instrument, amenable to changes on the ground (either in the make-up of the group, its name, affiliations, or specific location). A number of proposals have been put forward as to what a new AUMF addressing the threat of ISIL should look like. Robert Chesney, Jack Goldsmith, Matthew Waxman and Benjamin Wittes have recently penned a draft AUMF. Separately, a group of academics has issued guidelines for an ISIL AUMF. The propositions differ on whether the new AUMF should limit itself to ISIL or should also refer to Al-Qaeda and the Afghan Taliban, but they both stress the need to identify the enemy with some level of precision. Both proposals also agree on the need to comply with international humanitarian law, enhance transparency, include sunset clauses, and repeal old AUMFs. Ultimately, the idea is to ensure that any use of force is specific and will not be used indefinitely or beyond its original scope.
Though the debate continues, one thing can be said with relative certainty: ISIL has shown the difficulty of contending with new and evolving threats. The uncertainties drive decision makers toward open-ended instruments that allow for some flexibility. In terms of the geographical scope of the instruments, the problem with restricting it to Iraq and Syria is that ISIL might gain control in other states. And keeping the instrument exclusively tailored to the fight against one group means that it could become irrelevant if the group changes its name or becomes affiliated with other groups.
Ultimately, however, flexibility comes at a price. Broad instruments hold the potential of being abused, over-stretched, and expanded to new and potentially different situations. If anything, and regardless of whether a sunset clause is included, more communication with Congress and the public about the use, successes, and limitations of the instrument would ensure the instrument’s continued legitimacy and minimize the risk for abuse.
On December 9th, John Kerry outlined, before the Senate, what the administration would look for in an ISIL AUMF. The AUMF would limit its application to ISIL and associated forces but would not include geographical limits. The new AUMF would have a three-year sunset clause and would supersede the 2001 AUMF. Two days later, the Senate Foreign Relations Committee approved an AUMF against ISIL.
It is unclear whether Congress will adopt a new AUMF before the end of its current session but it is likely that it will adopt one in the near future. On September 18th, Congress authorized the funding and arming of Syrian rebel forces. In November, the President authorized 1500 more troops to be deployed in Iraq, albeit with no combat role. The White House further said that it would also ask Congress for another $5.6 billion to contend with the ISIL threat. But Congress was clear when authorizing the funding in September that it would not authorize boots on the ground. It therefore remains to be seen what exactly a new ISIL AUMF would look like and what it would mean for the way in which the administration deals with ISIL.
Editor’s Note: This piece is based on reflections from a ‘New Battlefields, Old Laws’ event, organized jointly by the Institute for National Security and Counterterrorism (INSCT) at Syracuse University and the International Institute for Counterterrorism (ICT) at IDC Herzliya, chaired by Professor William C. Banks and Dr. Daphné Richemond-Barak, in which Professor Laurie Blank of Emory University, Colonel (Reserve) Ronen Cohen of Inspiration.C.A., Professor Geoffrey S. Corn of South Texas College of Law, Professor Jennifer Daskal of the Washington College of Law, Dr. Matthew Levitt of the Washington Institute, and Professor Nathan A. Sales of Syracuse University College of Law participated in September 2014. More information about the event can be found at https://insct.syr.edu/projects/newfrontiers/newbattlefieldsoldlaws/ and https://ict.org.il/Articles.aspx?WordID=100.