Administration’s Brief on ISIS War Shows Why AUMFs Must Be Clear #ISIS #AUMF

By Amy Morello

Last Monday the Obama Administration urged a federal judge to dismiss a lawsuit that alleges the war against the Islamic State in Iraq and Syria (ISIS) is illegal. Captain Nathan Michael Smith, an army intelligence officer stationed in Kuwait, filed the suit in May.

Smith argues that contrary to the administration’s claims, existing authorizations for the use of military force (AUMFs) do not provide it with sufficient congressional authority to target ISIS. Indeed, the two existing AUMFs, passed in 2001 (against al Qaeda and the Taliban) and 2002 (targeting the Saddam Hussein regime) have been stretched far beyond their intended purposes. Both commentators and members of Congress, including those who voted for the 2001 law, have continued to raise this issue.

Smith contends that his standing to bring the suit arises via his oath to uphold the Constitution, which he claims he is violating by “provid[ing] support for an illegal war.” As Smith writes, “To honor my oath, I am asking the court to tell the President that he must get proper authority from Congress, under the War Powers Resolution, to wage war against ISIS in Iraq and Syria.”

In its 45-page reply brief, the administration provides perhaps the “most extensive public explanation” to date of the United States’ domestic legal basis for using force against ISIS.

While acknowledging that no AUMF specifically tailored to the ISIS war has been passed, the brief reiterates the administration’s claim that the 2001 and 2002 AUMFs give the president authority to take military action against ISIS. It argues that “the president has determined that he has the authority to take military action” against ISIS, and that “Congress has ratified that determination by appropriating billions of dollars in support of the military operation.”

The brief also points to the National Defense Authorization Act, an annual law which the administration says contains provisions in support of the war, President Obama’s letters to Congress every six months on the progress of the war “consistent with the War Powers Resolution,” other reporting requirements Congress has imposed, and the hearings Congress has held on the war.

The administration also listed several reasons that the case should be dismissed without consideration of its legal merits: that courts do not have jurisdiction to decide on war powers questions, which should be left to Congress and the executive branch; that sovereign immunity bars the lawsuit; and that Captain Smith lacks legal standing.

Regardless of the viability of Smith’s case, the legal question he poses is valid. The 2001 and 2002 AUMFs have been interpreted to authorize the use of force against groups and in situations that were never intended by Congress. The administration’s arguments in this brief underscore exactly why it is so important for any new ISIS AUMF to be clear and specific.

Should Congress move forward with an ISIS-specific AUMF, it should ensure that any proposal:

• Clearly defines the mission objective and the enemy
• Includes robust reporting and transparency requirements sufficient to keep both Congress and the public informed
• Requires compliance with U.S. obligations under international law
• Clarifies that the authorization is the sole source of statutory authority to use force against ISIS to prevent confusion or overlap
• Sets a sunset date for both the new ISIS AUMF and for the 2001 AUMF to ensure continued congressional support for the use of force as the conflict evolves.

These recommendations (described more in more detail here) align with this set of principles by national security law experts, which has garnered bipartisan support.