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University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues


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Authorization to Use Military Force Against ISIL: What the President Wants and Why it Doesn’t Matter

Matt Matechik

What did President Obama “ask” Congress?

On February 11, 2015 President Obama formally approached Congress and implicitly sought their approval to use American military force against the Islamic State of Iraq and the Levant (ISIL). Specifically, the President submitted a draft joint resolution Authorization to Use Military Force (AUMF) and encouraged Congress in a formal letter to pass it.[i]

If passed in its current draft form (highly unlikely), the AUMF would grant the President Congressional approval to use American military forces against ISIL “and associated persons or forces” for a period of up to three years. The draft does not impose any geographic restrictions. Therefore, the President would be authorized to conduct military operations against ISIL in Iraq, Syria, Libya (where ISIL appears to have gained a foothold[ii]) and absolutely anywhere else in the world he deems “necessary and appropriate.”[iii] (NOTE: The AUMF only gives the President the domestic legal authority to enter into either Iraq, Syria, Libya, or other states. This blog will not deal with the international authority the President has to do so.)

Although the draft AUMF would not limit the location of military operations, it does purport to limit their scope. The draft prohibits activity that rises to the level of “enduring offensive ground combat operations.”[iv] The administration claims that this phrase prohibits large-scale long-term military campaigns such as those recently conducted by the United States in Afghanistan and Iraq. However, the stipulation would not prohibit the use of ground forces for less involved purposes such as rescue operations and pursuit of ISIL leadership. Additionally, the AUMF would allow “the use of U.S. forces in situations where ground combat operations are not expected or intended, such as intelligence collection and sharing, missions to enable kinetic strikes, or… other forms of… assistance to partner forces.[v]

This draft language, even with the limitation, is actually very broad, despite what some members of Congress are claiming. The draft intentionally uses open-ended phrasing that President Obama could potentially cite in committing American forces to ground combat.

AUMF ISIS Blog

Why did the President reach out to Congress?

President Obama approached Congress as part of his “commitment to working with Congress… to authoriz[e] the continued use of military force to degrade and defeat ISIL.” The President urged Congress to “join [him] in supporting our Nation’s security… which would show the world we are united in our resolve to counter the threat posed by ISIL.”[vi]

Did the President really “ask” Congress for anything?

No! The language of President Obama’s letter to Congress is extremely precise. A careful reading reveals that the President is not actually asking Congress for anything at all. To the contrary, the letter explicitly states that he already has all the authority he needs.[vii] The President is simply inviting Congress to provide their stamp of approval for military action that he is already undertaking and presumably will continue to undertake with or without Congress.

President Obama’s posture is not surprising. Historically, the sitting President, no matter his party, and Congress have performed a delicate dance around the subject of who controls the use of American military force abroad. The tension between the executive and legislative branches stems from the Constitution, which confers upon the President unspecified powers commensurate with the title “Commander in Chief” while endowing Congress with numerous specific war powers including, but not limited to, the power to “declare war” and “organize, fund, and maintain the nation’s armed forces.”[viii]

What about the War Powers Resolution?

This “dance” took on its modern form in 1973 when Congress passed the War Powers Resolution (WPR) to “to insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.”[ix] The WPR, at least on paper, requires the President to involve Congress at various points before, during, and after his decision to use force. One of its most controversial provisions requires the President to terminate military action within sixty days of its initiation unless Congress has declared war, extended the sixty-day period, is physically unable to meet, or provided statutory authorization.[x]

In practice, the WPR has done little to prevent the President from unilaterally committing American forces to foreign theatres. The sitting President, no matter his party, typically finds some way to circumvent the WPR’s purpose of involving Congress while still purporting to be consistent with the WPR. The President usually claims he already has all the authority he needs by virtue of his title as Commander in Chief and/or he interprets a statute in a particular way to find the Congressional approval he needs.

AUMF ISIS Blog 2

Sixty Days?! Haven’t we been fighting ISIL for months?!

Yes! The present scenario illustrates the WPR’s questionable influence. President Obama initiated a sustained air campaign against ISIL targets in Syria on September 22, 2015.[xi] Since that time there has been no declaration of war, no extension of the sixty-day period, and no problems with Congress meeting. Under the WPR, President Obama therefore has two choices: obtain Congressional statutory approval for the military action sixty days after initiation or terminate the mission. And yet, only now, 142 days later, far past the sixty-day deadline, is the President seeking statutory authorization and, as noted above, he is not truly even asking for it.[xii]

It should be noted that President Obama’s apparent disregard for the WPR is not unique to his administration. President George H.W. Bush ordered thousands of American servicemen to Somalia during December 1992 without explicit approval from Congress. He “found” statutory approval for the military deployment by broadly interpreting a statute that supported a US humanitarian mission in Somalia. President Bill Clinton ordered over 20,000 American troops to invade Haiti during September 1994 without explicit approval from Congress. His primary argument for nixing Congress was that the operation did not rise to the level of “war” requiring a declaration and therefore Congress need not be involved. These are only a few examples of many.

What happens now?

War (at least the political kind)! Congress must debate the draft AUMF and then either pass it as written, pass it with changes, or pass no AUMF at all. Ultimately, whatever Congress decides will not matter. If they pass any AUMF, the granted authority will be largely for symbolic purposes only. If they do not pass an AUMF, it is all but certain that President Obama will continue to commit American forces to the fight anyway. For the President, it’s a win-win. He will either by a wartime Commander-in-Chief enjoying the support of Congress as he battles America’s enemies abroad or he will be the President who was willing to stand up to the evil that is ISIL when Congress seemingly refused.

AUMF ISIS Blog 3

The political game surrounding the draft AUMF is likely to continue for some time. Politicians will squabble and legal scholars will debate the legal powers of he executive and legislative branches. Meanwhile, the United States is already at war with ISIL, regardless of who formally signs off on it, and will be for the foreseeable future.

Matthew Matechik is an Evening J.D. student at the University of Baltimore School of Law (Class of 2016). He currently works full-time for the U.S. Federal Government as a Counterterrorism Analyst. He has a Bachelors of Arts (Magna Cum Laude, 2008) from Florida State University. All views in this blog post are Matthew’s own views and do not represent that of the U.S. Government. 

[i] http://www.whitehouse.gov/the-press-office/2015/02/11/letter-president-authorization-use-united-states-armed-forces-connection

[ii] http://www.telegraph.co.uk/news/worldnews/islamic-state/11418966/Islamic-State-planning-to-use-Libya-as-gateway-to-Europe.html

[iii] http://www.whitehouse.gov/sites/default/files/docs/aumf_02112015.pdf

[iv] http://www.whitehouse.gov/sites/default/files/docs/aumf_02112015.pdf

[v] http://www.whitehouse.gov/the-press-office/2015/02/11/letter-president-authorization-use-united-states-armed-forces-connection

[vi] http://www.whitehouse.gov/the-press-office/2015/02/11/letter-president-authorization-use-united-states-armed-forces-connection

[vii] http://www.whitehouse.gov/the-press-office/2015/02/11/letter-president-authorization-use-united-states-armed-forces-connection

[viii]  U.S. Const., art. II, § 2, cl. 1, U.S. Const., art. I, § 8, cls. 1114.

[ix] 50 U.S.C.A. § 1541.

[x] 50 U.S.C.A. § 1544.

[xi] http://www.whitehouse.gov/the-press-office/2014/09/23/statement-president-airstrikes-syria

[xii] President Obama seems to be keeping the 2001 AUMF in his back pocket to claim Congressional authorization even if Congress does not pass an ISIL-specific AUMF. The 2001 AUMF authorized the President to use force against “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11,  2001, or harbored such organizations or persons, in order to prevent any  future acts of international terrorism against the United States by such nations, organizations or persons.” The Obama administration suggested as early as September 2014 that they could rely on the 2001 AUMF. See http://www.whitehouse.gov/the-press-office/2014/09/23/background-conference-call-airstrikes-syria. This position is problematic given that ISIL, a new group distinct from al-Qaida, had nothing to do with the September 11 attacks.

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Justification for Attacking IS – Is it Legal?

Clark Smith

In the wake of the President’s address to the nation on forthcoming US-led action against the Islamic State (IS) in Iraq and Syria, foreign officials abroad and legal scholars at home are lambasting the President for his presumed lack of legal justification.  In a primetime speech on September 10, the President laid out his strategy to “degrade and ultimately destroy” IS.  In short, his four-part strategy includes: continued air strikes against IS targets, though now expanding to Syria; increased support to forces fighting IS, in the form of additional US uniformed trainers and advisors in Iraq and providing of arms, equipment, and coordination for training to forces inside Syria; continued counterterrorism efforts aimed at denying IS necessary logistics and support by working with international partners to cut off funding, stem the inflow of foreign fighters, and countering IS propaganda; and further humanitarian assistance to those displaced by IS.  Although the President claims bipartisan support, he also claims “the authority to address the threat from ISIL.”  It is the airstrikes planned for Syria-based IS targets and the President’s presumed basis for authority to attack IS more broadly that concerns legal experts.

Iraq map locator

Both Syria and its ally Russia assert that any US airstrikes against targets in Syria would be in violation of international law.  A Syrian government spokesman warned that “any action [against IS] without the consent of the Syrian government would be an attack on Syria.”  And despite ongoing Russian involvement in the Ukraine, a Russian spokesman warned that any US action in Syria absent “an appropriate decision of the UN Security Council, [] would become an act of aggression, a crude violation of the norms of international law.”  Article 2(4) of the UN Charter would certainly seem to support Russia’s assertion of the Syrian position.  And with Russia’s position on the Security Council, a Security Council decision supporting the US strategy is all but impossible.  But, a Security Council decision condemning, or even prohibiting, the forthcoming US action in Syria is equally impossible.  Just as international law has been ineffective in curbing Russian aggression in the Ukraine, so too will it be ineffective in facilitating the efforts of any of the US’s detractors in dismantling IS.  Even if legitimate international law concerns did exist regarding the US strategy for addressing the IS threat, the US interests do, and should, outweigh those concerns (I make this argument here in my law article, on page 192).

Mapping the Syrian Conflict

More concerning to legal scholars, at least from a domestic perspective, is the President’s claim that he already has “the authority to address the threat from ISIL.”  Presumably, the President is referring to the Authorization for Use of Military Force (AUMF) passed by Congress in 2001 in response to the 9/11 attacks.  The key language of that AUMF indicates…

“…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 that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

Since being passed for combat operations in Afghanistan, the AUMF has also provided the legal basis for attacks against al Qaeda, and affiliates, in Pakistan, Yemen, and Somalia.  Just last year Pentagon legal experts defended broad authority under the AUMF when testifying at a Senate Armed Services Committee hearing.  According to the Pentagon legal experts, “the broad interpretation of the AUMF [] gives them the flexibility to deal with the changing threat in a lawful, effective manner.”  Members of the Committee disagreed with the broad authorization assessment, yet no specific solutions were suggested.  Just weeks after that Senate Committee hearing, the President called for a repeal of the AUMF referring to it as the “perpetual war” law.  What he did not call for, however, was a deadline by which to repeal it.  Probably not a calculated risk, but not addressing the “perpetual war” law was a good move in hind-sight.

Obama IS Announcement

In recent months, the Commander in Chief appeared to be relying on his Article II powers to prosecute the limited campaign against IS targets in Northern Iraq.  This was evidenced by the multiple War Powers Resolution letters sent to Congress keeping them informed.  Relying on this authority for the limited strikes and in light of several AUMFs being considered, if not avoided, in Congress in the run up to the President’s speech, it was no doubt quite a surprise when the President claimed he already had the necessary authority to prosecute a sustained campaign against IS.  Experts question why the President did not insist first on Congressional support, but the President has been down that road only a year earlier when Congressional support for action against Assad’s Syrian regime for their use of chemical weapons on their own citizens was clearly, and embarrassingly, unobtainable.

The President’s justification for waging sustained conflict against IS, reliance on the 2001 AUMF, is a stretch indeed.  But it is plausible.  According to the language of the AUMF, the President determines those persons or organizations that participated in the 9/11 attacks.  That was clearly al Qaeda.  Since that time, the President has retained authority to use that AUMF to attack al Qaeda affiliates in South Asia, the Arabian Peninsula, and Africa.  The stretch, albeit a plausible one, is identifying IS as an al Qaeda affiliate or at least something that was at one time an affiliate of al Qaeda.  IS was born of al Qaeda in Iraq and only recently did Ayman Zawahiri disavow IS.  This same organization, regardless of name, attacked US forces in Iraq during the Iraqi war and continues to carry on the legacy of the former al Qaeda leader, Osama bin Laden.

In the end, the point may be moot if the President can get the Congressional authorization he very much wants, but is very reluctant to ask for.

Clark Smith is a third-year law student pursuing a concentration in International Law. He has undergraduate and graduate degrees in Political Science and International Relations. In addition to being a Student Fellow, he is the Submissions Editor for the Journal of International Law. His previous experience includes work in both security and policy and his previous overseas postings include Western Europe, the Balkans, the Middle East, and South Asia. His professional interests include international development.