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July 10, 2014

FAQ: The Islamic State of Iraq and Syria (ISIS) and Authorities for the Use of Military Force

  • Question: Is separate congressional authorization needed for United States military action against the Islamic State in Iraq and Syria (ISIS) in Iraq and Syria?
  • Answer: Yes. As neither the 2001 nor the 2002 Authorization for the Use of Military Force (AUMF) clearly applies to ISIS, the president should seek separate congressional authorization to engage in sustained military action against ISIS. The president also has power under Article II of the Constitution to use military force to repel imminent threats from groups that are not covered by the 2001 or 2002 AUMF, including ISIS. Whether particular uses of force against ISIS can be justified without congressional authorization under the president’s Article II authorities is a fact specific inquiry. Uses of force designed to repel imminent threats against American personnel or to rescue American hostages, for example, could be justified under the president’s Article II authorities. A sustained military campaign—for example, aiding Iraqi or other armed forces to, assure that ISIS is “destroyed” and “crushed,” in the words of Secretary of State John Kerry—could not be justified under the president’s Article II authorities.

  • Question: What lessons have we learned in the past thirteen years that should inform any consideration of a new ISIS-specific AUMF?
  • Answer: To maximize adherence to human rights norms, clarity in domestic law, and legitimacy with the U.S. and global publics, any new AUMF should contain:

    1. Explicit limits pertaining to time (e.g. a sunset clause), affiliation (e.g. the specific groups included) or mission (e.g. reduce a group’s capacity so that it does not pose an imminent threat to the United States) which would provide increased opportunities for congressional and executive dialogue and ensure renewed national consideration at regular intervals;
    2. Strengthened congressional reporting requirements to ensure that the relevant committees regularly receive information on secret military and covert operations—to the extent permitted by operational security needs—including requiring that Congress be informed as to which groups are covered under the AUMF and in which nations the Department of Defense believes Congress has authorized the president to use military force; and
    3. Provisions requiring periodic public reporting on the number of combatants and civilians killed, as well as information regarding where and against whom the president is using military force under congressional authorization.

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