For over three years it has been debated whether Congress should update the Authorized Use of Military Force from Sept. 18, 2001 with a new war authorization designed to confront emerging terror threats from groups such as the Islamic State (ISIS).
An Authorized Use of Military Force is not a substitute for a comprehensive strategy to confront and ultimately defeat ISIS.
A Lack of Strategy
In May 2013, I testified to the Senate Armed Service Committee that an Authorized Use of Military Force is not a substitute for a comprehensive strategy to confront and ultimately defeat ISIS—it is merely legislative authorization to use military force to do so.
On Sept. 10, 2014, President Barack Obama finally addressed the nation about ISIS. He sketched out the beginnings of a soon-to-come strategy to defeat ISIS. On the night of the speech, a senior administration official said that the 2001 Authorized Use of Military Force provided the legal authority necessary to use military action against ISIS.
Two weeks later, The Heritage Foundation published a paper about a new Authorized Use of Military Force for ISIS (and how to frame the issue).
Obama’s Draft Authorized Use of Military Force
In February 2015, five months after giving his ISIS speech, Obama (who still had not laid out a comprehensive strategy to defeat ISIS) sent a draft Authorized Use of Military Force to Congress requesting authority to use military force to degrade and defeat ISIS.
Oddly enough, the president’s transmittal letter accompanying the draft Authorized Use of Military Force stated that “existing statutes provide me with the authority I need to take these actions.”
The issue of whether the 2001 Authorized Use of Military Force is legally sufficient to cover military actions against ISIS is subject to some debate in the legal academy of national security lawyers, given the Islamic State’s attenuated connection to al-Qaeda, the Afghan Taliban, and associated forces—the very groups that fall squarely under the 2001 Authorized Use of Military Force.
Substantively, the president’s draft Authorized Use of Military Force prohibited the use of U.S. armed forces “in enduring offensive ground combat operations.” Furthermore, the Authorized Use of Military Force would terminate in three years and repeal the 2002 Iraqi Authorized Use of Military Force.
The limitation on the use of “enduring offensive ground combat operations”—whatever that means—and the three-year sunset did not attract many Republicans to the proposal. Some Democrats, on the other hand, found the draft too broad, as it did not limit the geographical scope of military operations, and was too broad a grant of authority to the president.
There are some who believe that the administration knew that their Authorized Use of Military Force was not going anywhere in the Congress, but sent it anyway in order to have the ability to criticize the so-called “do nothing” Congress.
The president’s Authorized Use of Military Force is only one of several under consideration. Members of Congress proposed ISIS specific Authorized Use of Military Force before and after the administration’s draft fell on deaf ears on Capitol Hill.
Congressional inaction has given the administration—the executive branch—the ability to assert a plausible yet strained claim of authority to fight ISIS under a statute that was written in 2001 with al-Qaeda in mind, not ISIS, which did not exist until 2004.
The New Debate
The Authorized Use of Military Force debate was politically dead, until recently.
On Dec. 6, 2015, after the vicious terrorist attacks in San Bernardino, the president gave a speech to the nation in which he said, among other things, that the Congress should “go ahead and vote to authorize the continued use of military force against these terrorists…to demonstrate that the American people are united, and committed, to this fight.”
In early January of this year, Speaker of the House Paul Ryan, R-Wis., pressed house Republican leaders to gauge whether there was support for an ISIS Authorized Use of Military Force. Ryan’s lieutenants found little to no support for taking on the issue. At the same time, Senate Majority Leader Mitch McConnell, R-Ky., suggested that the Senate was likely unwilling to take up the Authorized Use of Military Force debate.
On Jan. 13, 2016, Obama gave his last State of the Union address. In it, he cynically chided the congress about the issue saying that “if this Congress is serious about winning this war, and wants to send a message to our troops and the world, authorize the use of military force against ISIL.”
Then, in late January, McConnell revived the issue in the Senate by fast-tracking a draft Authorized Use of Military Force co-sponsored by Sen. Lindsey Graham, R-S.C., which, if passed, would authorize the president to use all “necessary and appropriate force” against ISIS and associated forces and successor organizations.
The majority leader allowed the Authorized Use of Military Force to bypass the Senate Foreign Relations Committee, but to date has not come to the Senate floor for debate. Graham’s Authorized Use of Military Force has no sunset and no troop limitations.
Sen. Rand Paul, R-Ky., and Rep. Tom Emmer, R-Minn., each proposed a declaration of war against ISIS, despite the fact that some of the leading law of war scholars think that authorizations for use of military force are sufficient substitutes for war declarations and that the “international law role for declarations of war has largely disappeared.”
Given this history, and the variety of proposals before the Congress, it is clear that this is another political hot potato that neither the Congress nor the president really wants to resolve in 2016. Add to that the fact that there is little appetite on the hill to pass an ISIS Authorized Use of Military Force during a presidential election year.
Republicans don’t want to “tie the hands” of the next president, and the administration doesn’t think it needs an additional legal authority to fight ISIS.
Moreover, it is incumbent on the president and the administration to design a comprehensive, coordinated strategy to degrade and defeat ISIS, and then communicate that strategy to the American people and our allies. That strategy must precede an Authorized Use of Military Force, as the latter legally undergirds the former.
Said another way, debating an ISIS Authorized Use of Military Force is not an adequate substitute for the much more difficult duty of the administration of devising a comprehensive strategy to defeat ISIS.