The Nimitz-class aircraft carrier USS Carl Vinson conducts flight operations in the U.S. 5th Fleet area of operations in support of Inherent Resolve
As the Obama administration formulates a strategy to combat the Islamic State in Iraq and the Levant, or ISIL, the Office of Legal Counsel (OLC) has an important task at hand. Amidst the debate about whether and how the United States should engage ISIL militarily, the lawyers of the OLC must grapple with a more fundamental question: on what legal grounds can the United States enter a new armed conflict against a non-state actor?
The basis for intervention may lie in two documents that have come to govern U.S. counterterrorism operations in the Middle East: the 2001 and 2002 Authorizations for Use of Military Force (AUMF). The first AUMF, passed unanimously by Congress shortly after 9/11, provided the legal sanction for the war in Afghanistan. Its main thrust reads as follows:
“The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks on September 11, 2001, or harbored such organizations or persons.”
The second AUMF, passed in October 2002, authorized the overthrow of Saddam Hussein’s regime as well as subsequent efforts to defend the struggling Iraqi government against insurgents.
In total, three separate legal rationales could potentially justify military action against ISIL in Iraq: the 2001 AUMF, the 2002 AUMF, or the president’s commander-in-chief powers under Article II of the Constitution. However, there are strong arguments against each of them.
The main case against both AUMFs is that they are simply obsolete. When the 2001 AUMF passed into law, its scope was understood to include Al Qaeda, the Taliban, and other groups directly involved in planning and executing 9/11. Today, however, lawmakers construe the statute to include “associated forces” that were uninvolved in any direct or indirect capacity in carrying out the attacks. It is difficult to see how the White House can adopt this interpretation when Al Qaeda formally severed ties with ISIL in 2013 due to the latter’s extreme brutality against Muslim civilians.
The main case against both AUMFs is that they are simply obsolete.
The 2002 AUMF, on the other hand, almost certainly authorizes the president to engage ISIL in Iraq, but should be repealed as soon as possible. It states in part:
“The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to […] defend the national security of the United States against the continuing threat posed by Iraq.”
While its broad wording is conducive to its application to the present campaign against ISIL, the core intention of the statute was to depose Saddam Hussein and establish a functional and somewhat egalitarian Iraqi government. Expanding the mandate of the law in order to engage ISIL would render it meaningless as an actual authorization for any specific use of force. Twelve years ago, the United States was preparing for regime change; now it is dealing with a non-state terrorist organization that did not exist when the US invaded Iraq. President Obama should not take this document as a blank check to rush into a fundamentally different conflict.
The remaining legal rationale is the president’s war powers under Article II of the Constitution, and is probably the most viable of the three. In fact, President Obama has already invoked his constitutional emergency powers in order to protect American citizens in the Middle East. He recently used this authority to launch a rescue mission of American hostages in Syria and to order airstrikes to protect American personnel in Iraqi Kurdistan. However, this rationale does not give the president authority to strike ISIL-related targets when no American lives are at risk. This approach also leaves the president politically vulnerable to accusations of ignoring Congress and directing the military by executive fiat.
Instead of fiddling with the limits of preexisting law, the White House should work with Congress to update the legal framework governing counterterrorism policy in the Middle East. This should take the form of a new AUMF that accounts for the emergent non-state terrorist threats not covered by the 2001 AUMF, such as ISIL, AQAP, and Al Shabaab. The list of terrorist organizations covered by this new statute should be subject to a yearly review, so that emergent foes can be added on and irrelevant ones taken off. A new AUMF should also contain a sunset clause that deactivates the law upon the completion of a specific mission or timetable.
This should take the form of a new AUMF that accounts for the emergent non-state terrorist threats not covered by the 2001 AUMF.
Without a new or revised AUMF, the US government lacks the legal authority to engage ISIL militarily. As Senators John McCain (R-AZ) and Lindsey Graham (R-SC) recently wrote in the New York Times, “now could be the right time to update this authorization in light of evolving terrorist threats like ISIL.” To that end, President Obama should engage Congress on this issue before escalating the present campaign against ISIL in either Iraq or Syria.
Requesting authority, rather than assuming it, is the only way to generate a discussion about what a new AUMF should look like. And while part of the burden rests with President Obama, an equal share of it lies with Congress, which has the direct power to repeal or revamp the AUMFs. Until the two branches come together, the OLC will be tinkering with an obsolete law.
Demetri Papageorgiou is studying Government and Economics in the College of Arts & Sciences at Cornell University.
Image Attribution: “USS Carl Vinson Takes Over Air Strikes Against ISIL” by U.S. Navy, licensed under Creative Commons
