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Prepared Statement of Jennifer Daskal

Assistant Professor of Law, American University Washington College of Law


Executive Editor, Just Security
Before the Congressional Progressive Caucus
Forum on the Presidents Proposed Authorization for Use of Military Force Against the
Islamic State in the Levant in Iraq and Syria
March 17, 2015

Thank you, Congresswoman Lee and honorable members of the Congressional Progressive
Caucus, for this opportunity to address the Presidents proposed Authorization for Use of
Military Force (AUMF) against the Islamic State in the Levant in Iraq and Syria (ISIL).
Last month, President Obama submitted his proposal for an ISIL AUMF to Congress.1 While
the Presidents effort to engage Congress is a positive step forward, the proposed authorization
falls short in many ways. Ill focus the bulk of my comments on the two most significant flaws
in the Presidents proposal: 1) the proposal leaves the 2001 AUMF in place, leading to the
perverse effect of expanding, rather than limiting, the Presidents authority to wage war; and 2)
the Presidents draft AUMF includes an overly broad definition of associated forces that could
result in an ever-expanding and truly global conflict against terrorismthe very thing the Obama
administration has so long decried. Congress now has the opportunity to address these flaws.
Specifically, Congress should do at least three things: first, it should add a sunset provision for
the 2001 AUMF; second, it should make clear that the ISIL-specific provisions provide the sole
source of authority for fighting ISILsomething that Secretary of State John Kerry endorsed in
testimony before the Senate Foreign Relations Committee last week;2 and third, to the extent
Congress chooses to authorize force against ISILs associated forces, it should define that term
in accordance with recognized principles of co-belligerencyand thereby reject the overbroad
definition offered by the Obama administration in its draft legislation.3
For the past six months, the Obama administration has claimed that the 2001 AUMF authorizes
the conflict against ISIL. In fact, administration officials reiterated this position before the
Senate Foreign Relations Committee last week.4 But the 2001 AUMF, now the longest-running
authorization in history, says nothing about ISIL. Passed in the days after the Sept. 11 attacks, it
authorizes force against those responsible for the 9/11 attacks, namely al-Qaida and the Taliban.
ISIL was in no way involved in the September 11th attacks and did not even exist at the time.
And while once connected to al-Qaida, the groups have formally splitmeaning that ISIL could
not even qualify as a so-called associated force of al-Qaida. The Obama administration
nonetheless argues that ISIL falls within the 2001 AUMFas a successor to al-Qaida.
Why is this important? Unless the legislation includes a sunset for the 2001 AUMF, timed to
coincide with the sunset for the ISIL AUMF, the ISIL-specific sunset is essentially rendered
1

White House Sends Proposed ISIL AUMF to Congress, JUST SECURITY (Feb. 11, 2015),
http://justsecurity.org/19918/white-house-sends-proposed-aumf-congress/.
2
Hearing on the Presidents Request for Authorization of Use of Military Force Against ISIL Before the S. Foreign
Rel. Comm., 114th Cong. (2015) (statement of John Kerry, Sec. of State) (asserting that the administration would
support supersession language so long as it is ISIS-specific. . .and doesnt reach any of the other activities
authorized by the 2001 AUMF).
3
See also An AUMF for ISIL: The Six Key (Missing) Elements, JUST SECURITY (Feb. 24, 2015),
http://justsecurity.org/wp-content/uploads/2015/03/Background-Paper-Administrations-Proposed-ISILAUMF.2.24.Final_.pdf; Jennifer Daskal & Benjamin Wittes, The IntellectualBut Not PoliticalAUMF
Consensus, JUST SECURITY (Mar. 2, 2015), http://justsecurity.org/20546/intellectual-but-political-aumf-consensus/;
Jack Goldsmith, Ryan Goodman, & Steve Vladeck, Six Questions Congress Should Ask the Administration about its
ISIL AUMF, JUST SECURITY (Feb. 20, 2015), http://justsecurity.org/20232/six-questions-congress-isil-aumf/.
4
See, e.g., Hearing on the Presidents Request for Authorization of Use of Military Force Against ISIL Before the S.
Foreign Rel. Comm, supra note 2 (statement of John Kerry) ([W]ere convinced we have that authority [to fight
ISIL under the 2001 AUMF]. . .[W]e have that authority, because ISIL was Al Qaeda.).

meaningless. A future administration could simply revert back to 2001 AUMF as a means of
continuing the conflict with ISIL, even if Congress chose not to re-authorize the conflict with
ISIL at that point. Put simply, one of the most important limits in the administrations draft
proposalthe ISIL-specific sunsethas virtually no effect, unless it is coupled with a
corresponding sunset for the 2001 AUMF.
I also want to be clear about the effect of a sunset provision: It is not equivalent to an end of
conflict provision. And it is not intended to end the conflict prematurely. Rather, as Secretary of
the Department of Defense, Ash Carter, testified last week, such sunset provisions stem from the
important principle, derived from the Constitution, that the grave matter of authorizing armed
conflict should be a shared responsibility of the president and Congress. As Carter put it, albeit in
the context of discussing an ISIL-specific sunset, a sunset provision affords the American
people the chance to assess our programs in three year times, and provides the next president and
the next Congress the opportunity to reauthorize it, if they find it necessary.5 Stated another
way, a sunset provision would ensure ongoing deliberation and discussion regarding the nature
of an evolving conflict, and help to ensure that whatever conflict, if any, authorized in 2018,
matches the nature of the threat at that point in time.
For reasons similar to the need for a 2001 sunset, the legislation also ought to include
supersession languagemaking clear that the ISIL-specific authorization provides the sole
source of statutory authority for fighting ISIL. Without such supersession language, the ISIL
AUMF simply adds to authorities provided by the 2001 AUMF, making it largely redundant.
Even worse, it opens up the possibility of a future executive relying on the 2001 AUMF as an
end run around any restriction in an ISIL-specific AUMF it doesnt like. Notably, as already
stated, the Obama administration has indicated that it would support such a supersession
provision.
To be clear, such supersession languagewhile criticalis not an alternative to a sunset
provision for the 2001 AUMF. They are both essential, and they serve different purposes. A
supersession provision protects against redundancy; a 2001 AUMF sunset ensures that, come
2018, Congress and the American people have a chance to assess whether the conflict should be
re-authorized, and if so, against whom and for what purposes. Such a sunset is also needed to
ensure that, if and when the ISIL AUMF expires and is not renewed, a future administration does
not simply revert back to the 2001 AUMF as a means of continuing the conflict against ISIL, in
contradiction of congressional intent.
Congress should also focus its attention on the administrations proposed definition of
associated forces. The administrations draft legislation includes the authority to fight both
ISIL and its associated forcesa concept it has also read into the 2001 AUMF. But the
administrations proposed definition of associated forces in the draft ISIL legislation is
significantly broader than that reportedly employed in conjunction with the 2001 AUMF.
The definition of associated forces employed with respect to the 2001 AUMF has long been
limited to those organized armed groups that have entered the fight alongside al-Qaida and
5

Hearing on the Presidents Request for Authorization of Use of Military Force Against ISIL Before the S. Foreign
Rel. Comm, supra note 2 (statement of Ash Carter, Secretary of the Department of Defense).

against the United States or its coalition partners, and operate as a co-belligerent with al-Qaida. 6
While there is endless speculation about what groups are covereda fact that the administration
insists must remain classified and has withheld even from members of Congressan analysis of
publicly available information suggests that only al-Qaida in the Arabian Peninsula and possibly
al-Shabaab and the al Khorasan Group have been declared associated forces.7 The number of
groups is limited by the criteria that the group needs to have actually joined up with al-Qaida as a
co-belligerent.
By comparison, the definition of associated forces included in the Presidents proposed AUMF
covers groups and individuals. It covers not only those who fight for, or on behalf of ISIL, but
those who fight alongside the groups, as well as successor organizations. And it does not
require a finding of co-belligerency. These terms are easily manipulated, creating the prospect of
an ever-expanding conflict. Without clarification, this definition could potentially be relied on to
justify the use of force against ISIL copycats or wannabes. In fact, at the Senate hearing last
week, Ash Carter suggested that this is an authority that the administration wanted.8 But with
groups proliferating all around the world that have professed some kind of sympathy for ISIL
in some cases motivated by little more than a desire to raise their own profilethis is a
dangerous delegation of authority to the executive.9 It raises the specter of the very type of
global war on terror that the Obama administration has for so longand rightly sodenounced.
If Congress chooses to authorize force against ISILs associated forces, it should define that
term in accordance with the definition used to date in connection with the 2001 AUMF; it should
be explicitly limited to those organized armed groups that actually join ISIL as co-belligerents in
hostilities against the United States.

See, e.g., Jeh Johnson, then-General Counsel of the Department of Defense, National Security Law, Lawyers, and
Lawyering in the Obama Administration,(Yale Law School, Feb. 22, 2012), available at
http://www.cfr.org/defense-and-security/jeh-johnsons-speech-national-security-law-lawyers-lawyering-obamaadministration/p27448 (defining associated force as (1) an organized, armed group that has entered the fight
alongside al Qaeda, and (2) is a co-belligerent with al Qaeda in hostilities against the United States or its coalition
partners).
7
See, e.g., The White House, Letter from the President War Powers Resolution, June 12, 2014 (describing actions
taken against al-Qaida in the Arabian Peninsula), available at https://www.whitehouse.gov/the-pressoffice/2014/06/12/letter-president-war-powers-resolution; Department of Defense Press Briefing by Rear Adm.
Kirby in the Pentagon Briefing Room, Sept. 25, 2014 (describing actions against the Khorasan Group), available at
http://www.defense.gov/Transcripts/Transcript.aspx?TranscriptID=5506; see also Ryan Goodman, Obamas
Forever War Starts Now, FOR. POLICY (Feb. 12, 2015), available at http://foreignpolicy.com/2015/02/12/obamasforever-war-starts-now-aumf-isis-islamic-state/.
8
Hearing on the Presidents Request for Authorization of Use of Military Force Against ISIL Before the S. Foreign
Rel. Comm, supra note 2 (statement of Ash Carter, Secretary of the Department of Defense) (But you do see in this
social-media-fueled movement called ISIL people who are wannabes or want to join or have been associated with Al
Qaeda or some other group who are putting up the flag of ISIL, and we need to recognize that that's a characteristic
of the campaign, and that's why the AUMF has the language that it does.) (emphasis added); see also Ryan
Goodman, Does the Presidents Proposed AUMF Authorize Force Against ISIL Wannabes?, JUST SECURITY (Mar.
12, 2015), http://justsecurity.org/21002/ashton-carter-presidents-proposed-aumf-apply-isil-wannabes/.
9
See, e.g., Rukmini Callimachi, Boko Haram Generates Uncertainty With Pledge of Allegiance to Islamic State,
N.Y. TIMES, Mar. 7, 2015, http://www.nytimes.com/2015/03/08/world/africa/boko-haram-is-said-to-pledgeallegiance-to-islamic-state.html?_r=0; Eric Schmitt & David D. Kirkpatrick, Islamic State Sprouting Limbs Beyond
its Base, N.Y. TIMES, Feb. 14, 2015, http://www.nytimes.com/2015/02/15/world/middleeast/islamic-state-sproutinglimbs-beyond-mideast.html.

Meanwhile, if other organized groups emerge that pose the kind of sustained, grave threat that
justify additional uses of force, Congress can and should pass authorizations specifically targeted
at those groupsthere is no need to write the executive a blank check.
Two additional points are also worth making.
First, any final piece of legislation should also include more robust and specific reporting
requirements than those outlined in the administration draft, so as to enable Congress, and the
greatest extent possible, the public, to assess how the conflict is proceeding; to make any
modifications, if necessary; and to be in the best position possible to responsibly legislate any
additional needed at the time of sunset. Such reporting requirements should include, as a
minimum, a public list of forces that the administration considers associated forces of ISIL;
information about civilian and combatant casualties; and a progress report with respect to the
missions overall objectives.
Second, the legislation should also require compliance with international law, without caveat.
Whereas the administrations draft proposal authorizes the use of force as the president
determines to be necessary and appropriate, the final authorization should simply authorize the
use of necessary and appropriate forcea term of phrase that has been interpreted by a
plurality of the Supreme Court to mean those uses of force that are fundamental and accepted
incidents of war and are thus consistent with international law.10 The legislation should omit the
added reference to a presidential determination as to what qualifies as necessary and
appropriatea caveat that threatens to rob the provision of its purpose.
On the same day that Obama transmitted his proposed legislation to Congress, he reiterated the
desire to avoid perpetual war. I do not believe Americas interests are served by endless war,
he said. It is now up to this Congress to help the President live up to that promisenot for the
Presidents sake, but for the countrys.
Thank you.

10

See Hamdi v. Rumsfeld, 542 U.S. 507, 520-521 (plurality opinion).