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Reviewing a Proposed Reauthorization of the Use of Military Force Against ISIS

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The war on ISIS has become an ever-present threat to America’s national security, human rights, and global safety. There is no shortage of media stories covering the killing of ISIS leaders[1] or the atrocities ISIS members have committed in Syria.[2] The United States has been carrying out drone strikes and airstrikes against ISIS.[3] Does Congress permit these drone strikes and airstrikes?

The 2001 Authorization Use of Military Force (“AUMF”) [4] authorizes the military to use force “against nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.”[5] The 2002 AUMF[6] reaffirmed use of force against Iraq. Both of these authorizations only allow for the use of force against those involved in the attacks on 9/11 or those enemy combatants within Iraq. ISIS only appeared after becoming an offshoot of Al-Qaeda after the 9/11 attacks. Within the statutory language, drone strikes and airstrikes against ISIS are not within the scope of authorization given by Congress in the 2001 and 2002 AUMF because ISIS was not in existent prior to 9/11. Then, does the United States need a new reauthorization? Or, if we are continuing drone strikes and airstrikes regardless of a new AUMF or not, is a reauthorization even necessary?

Senators Tim Kaine and Jeff Flake[7] believe a new AUMF is necessary to outline the role of drone strikes and airstrikes against ISIS. The two senators introduced a resolution in June for a new AUMF against ISIS.[8] The purpose of their resolution is stated as “to protect the lives of United States citizens and to provide military support to regional partners in their battle to defeat ISIL.”[9] There is finally a time-stamp on the resolution, three years after it is enacted, and the resolution repeals the 2002 AUMF.[10] The most significant piece of the resolution is the prohibition of the use of ground troops.[11] The American people have seriously shunned the use of ground forces since the Iraq War, so it is unsurprising that disclaimer would be added into the resolution. Yet, essentially prohibiting the president to exclude a form of force, ground troops, against ISIS seems inconsistent with executive’s sole power to organize armed forces.

“Boots on the ground”[12] can no longer not be prohibited by any proposed statutory since President Obama announced a Special Operations troops deployment to Syria to fight against ISIS at the end of October.[13] While there are only about fifty[14] troops deployed, any statutory language submitted in Senator Kaine and Flake’s proposed reauthorization needs to be reworded. The troops have not received a specific combat mission[15] as well as no end date for operations. The Special Operations troops were not deployed to protect U.S. citizens from imminent threat as any direct danger from ISIS, besides threatened terrorist attacks, has not occurred. The narrow scope of Senator Kaine and Flake’s proposed reauthorization needs to be broadened for a reauthorization to work. Congress can simply not foresee what the Commander-in-Chief will do in order to protect the nation.

Then, is a reauthorization even needed? As the Commander-in-Chief of the United States’ military, it seems counterintuitive that the president would need permission from Congress every three years, under Senator Kaine and Flake’s proposed new authorization to reauthorize force or to place forces on the ground. If the president would want to place ground soldiers it seems within his realm of power to do so without permission from Congress. Debates of the constitutionality of the 2001 AUMF, 2002 AUMF, and even the War Powers Resolution has dominated thoughts in constitutional law. The separation of powers was meant to stay Congress from having a direct hand with inner workings of the President’s combat strategies. A reauthorization appears powerful on paper, but it has no force in directing how the Commander-in-Chief will place his combat troops, direct airstrikes, drones, or any other strategic matters.

With evidence of reauthorization[16] manners fizzling out, I cannot foresee Senator Kaine and Flake’s proposed resolution gaining momentum soon. If it their resolution is to gain momentum, then broadening the language of their resolution should be done to include force that has already been implemented by the President. A narrow prohibition of ground troops for a mission is unrealistic when the President has total control over the armed forces.

 

 

 

 

 

 

 

[1] White House Confirms key ISIS leader Killed in Air Strike, The Guardian (Aug. 21, 2015), http://www.theguardian.com/world/2015/aug/21/white-house-confirms-key-isis-leader-killed-us-air-strike.

[2] Dana Ballout, Islamic State Blows Up Temple of Bel in Syria’s Palmyra, The Wall Street Journal (Aug. 31, 2015), http://www.wsj.com/articles/islamic-state-blows-up-temple-of-bel-in-syrias-palmyra-1441014202.

[3] Greg Miller, U.S. Launches Secret Drone Campaign to Hunt Islamic State Leaders in Syria, The Washington Post (Sep. 1, 2015), https://www.washingtonpost.com/world/national-security/us-launches-secret-drone-campaign-to-hunt-islamic-state-leaders-in-syria/2015/09/01/723b3e04-5033-11e5-933e-7d06c647a395_story.html.

[4] Authorization for the Use of Military Force, 50 U.S.C.S. § 1541 (2015).

[5] Id.

[6] Id.

[7] James Arkin, Tim Kaine’s Mission: Pushing for War Authorization, Real Clear Politics (Aug. 10, 2015). http://www.realclearpolitics.com/articles/2015/08/10/tim_kaines_mission_pushing_for_war_authorization_127705.html

[8] Tim Kaine, (Jun. 8, 2015), http://www.kaine.senate.gov/press-releases/10-months-into-war-against-isil-kaine-and-flake-introduce-bipartisan-authorization-for-use-of-military-force-.

[9] Id.

[10] Id.

[11] See Id. (The use of significant United States ground troops in combat against ISIL, except to protect the lives of United States citizens from imminent threat, is not consistent with such a purpose).

[12] Kathy Gilsinan, Cliché of the Moment: ‘Boots on the Ground,’ The Atlantic (Nov. 5, 2015), http://www.theatlantic.com/international/archive/2015/11/cliche-boots-on-the-ground-syria-iraq/414097/

[13] Peter Baker, Cooper, and Sanger, Obama Sends Special Operations Forces to Help Fight ISIS in Syria, The New York Times, (Oct. 30, 2015), http://www.nytimes.com/2015/10/31/world/obama-will-send-forces-to-syria-to-help-fight-the-islamic-state.html

[14] Id.

[15] Id.

[16] Russell Berman, The War Against ISIS Will Go Undeclared, The Atlantic (Apr. 15, 2015), http://www.theatlantic.com/politics/archive/2015/04/the-war-against-isis-will-go-undeclared/390618/


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