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Exploring the President's Draft AUMF

By   /  March 1, 2015  /  Comments Off on Exploring the President's Draft AUMF

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President Obama sent to Congress on February 11 his draft proposal for a joint resolution authorizing the use of military force against the Islamic State of Iraq and the Levant (“ISIL”) for the next three years.[1]  In addition to granting the President the legal authority to use military force against ISIL, the draft resolution rescinds the Authorization for Use of Military Force (“AUMF”) Against Iraq Resolution of 2002.[2]

The President announced what would become Operation Inherent Resolve to the American public on August 7, 2014.[3]  Under the War Powers Resolution, the president “shall terminate any use of United States Armed Forces” within sixty days unless Congress declared war or extended the sixty days through legal authorization.[4]   He proceeded to comply with this legislative check by regularly updating Congress.[5]  Nonetheless, the President cited the 2002 AUMF in his notification as further legal justification for his actions[6] and his administration pointed to this same authority when the sixty-day window closed in October 2014.[7]  President Obama’s decision to seek new authorization from Congress demonstrates the administration’s recognition that more direct involvement in the complex situation in the Middle East will need clarified legal justification in addition to increased public support.  Many already question the legal basis of using the 2002 AUMF for the Iraq campaign citing the disparities between the past and present conflicts.[8]

The need for legal clarity rings truer as ISIL spreads to more regions outside of Iraq and Syria.  Recent beheadings of Christians in Libya by militants linked to ISIL shows that the terrorist group is no longer confined to Iraq.  As ISIL and its related forces spread, the ability to rely on the 2002 AUMF becomes more attenuated.[9]

Forces linked to ISIL are present in Libya, Egypt, Algeria, Yemen, and Saudi Arabia.[10]  This draft resolution provides the administration with this explicit authority to pursue these forces by authorizing use of U.S. military forces against “ISIL or associated persons or forces,” which recognizes the transnational nature of the growing organization.[11]

Interestingly, despite seeking broad authority to pursue ISIL and its associated forces,” the draft resolution places a temporal restraint on any military campaign.[12]  President Obama went one step further to explicitly prevent authorization for the use of ground troops.[13]  The President wanted to make it clear to the American public that the latest show of American force in the region would not be another Iraq or Afghanistan.  This draft AUMF comes a little over a month after the official end to combat operations in Afghanistan.  It represents a strong stance by the administration to solidify the President’s legacy as the Commander in Chief who withdrew our armed forces from over a decade of war.  The AUMFs from 2001 and 2002 passed under President George W. Bush omitted any reference to an expiration date requiring only a nexus to 9/11 and protect against continuing threats posed by Iraq, respectively.  The legal framework remains fourteen years after it first passed Congress.

Getting Congress to pass the draft proposal is a different issue.  President Obama faces a very unusual situation – Republicans are attempting to grant the Executive branch more authority.   Senators John McCain and Lindsay Graham would like to remove the three-year time limit and open up the possibility to American troops on the ground.   Democrats are calling on members to withhold support if these changes are implemented.  For the sake of American interests abroad, it would be wise for Congress to act on the administration’s proposal.  ISIL and its related forces continue to threaten the region.  Immediate action from Capitol Hill on a foreign security threat seems unlikely when Congress can’t agree on how to keep the lights on at the Department of Homeland Security.


[1] See Letter from the President – Authorization for the Use of United States Armed Forces in connection with the Islamic State of Iraq and the Levant, White House (Feb. 11, 2015) (hereinafter, “Draft AUMF”) available at http://www.whitehouse.gov/the-press-office/2015/02/11/letter-president-authorization-use-united-states-armed-forces-connection

[2] Id.

[3] See Statement by the President (Aug. 07, 2014) available at http://www.whitehouse.gov/the-press-office/2014/08/07/statement-president (authorizing operations in Iraq to protect American personnel and Iraqi citizens).

[4] See 50 U.S.C. § 1544(b) (2014) (discussing termination of the use of armed forces).

[5] See Letter from the President – War Powers Resolution Regarding Iraq (Sept. 23, 2014) (hereinafter, “War Powers Letter”) available at http://www.whitehouse.gov/the-press-office/2014/09/23/letter-president-war-powers-resolution-regarding-iraq (“I am providing this report as part of my efforts to keep Congress fully informed, consistent with the War Powers Resolution….”), see also 50 U.S.C. §1544(a) (discussing reporting requirements).

[6] See War Powers Letter, supra note 5 (“I have directed these actions . . . pursuant to my authority as Commander in Chief 9including the authority to carry out Public Law 107-40 and Public Law 107-243).”).

[7] See Spencer Ackerman, White House says expired War Powers timetable irrelevant to Isis campaign, The Guardian (Oct. 16, 2014) available at http://www.theguardian.com/us-news/2014/oct/15/white-house-war-powers-resolution-iraq (“‘Because the 2001 and 2002 AUMF’s constitute specific authorization within the meaning of the War Power’s Resolution, the War Power’s Resolution’s 60-day limitary on operations does not apply here,’ said Bernadette Meehan, spokeswoman for the National Security Council.”)

[8] See id. (“The two AUMFs for 2001 and 2002 were with respect to two very different conflicts, aimed at two very different enemies, pursuing very different strategies . . . .”).

[9] See 2002 AUMF (using “Use of Force in Iraq” in the title) (emphasis added).

[10] Ryan Lucas, A Look at the Islamic State Group’s Reach into North Africa, Associated Press, Feb. 16, 2015 available at http://abcnews.go.com/International/wireStory/islamic-state-groups-reach-north-africa-28998253.

[11] Draft AUMF, supra note 1.

[12] Id. (noting the authorization expires after three years).

[13] Id.


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