How not to go to war against ISIS

As President Obama contemplates additional uses of force against Sunni extremists in both Iraq and Syria, politicians and pundits from across the political spectrum are debating the legal authority for such actions. To date, the president has defended his actions against the Islamic State of Iraq and Syria (ISIS) on self-defense grounds alone. But that claim becomes increasingly difficult to support the longer our military involvement lasts, and the more our goals shift from defending U.S. personnel on the ground to denying ISIS a territorial safe-haven. If this is the path we’re headed down, then the president should seek new congressional authorization for such forward-looking uses of force.

The million-dollar question, though, is what that authorization should look like. Some have seized upon the current crisis to suggest that we expand the 2001 Authorization for the Use of Military Force (AUMF) — the statute that has provided the domestic legal authority for the armed conflict between the United States and al Qaeda and the Taliban — to cover the current threat posed by ISIS and other emergent terrorist threats. But as efficient as this option may seem, it would utterly ignore the critical lesson we’ve learned over the past 13 years about when and how the United States should go to war: as specifically and narrowly as possible.

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Enacted just one week after September 11, the 2001 AUMF grants the president authority to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” Notably, Congress rejected open-ended language proposed by the Bush Administration which would have authorized the use of force “to deter and preempt any future acts of terrorism or aggression against the United States” and instead authorized the use of force against those directly responsible for the 9/11 attacks, who we soon identified as al Qaeda and the Taliban. Indeed, this substantive tie to 9/11 is why the AUMF in its current form doesn’t cover ISIS — which quite openly split from al Qaeda years ago.

In the meantime, the AUMF has largely served its purpose. The United States has “decimated” al Qaeda’s core; and it is set to withdraw its remaining combat troops in Afghanistan at the end of the year, arguably bringing the conflict with the Taliban to a close. Yet, the government continues to rely upon the AUMF to justify uses of force against other groups — so-called “associated forces” of al Qaeda, which are defined to include “organized armed groups” that are “co-belligerents with al Qaeda in the hostilities against the United States and its coalition partners” — that were not involved in, or did not even exist at the time of, the 9/11 attacks. Thus, for example, drone strikes against members of al Qaeda in the Arabian Peninsula (AQAP) — the al Qaeda off-shoot based in Yemen — appear to be covered by the AUMF under this theory. And although the government has indicated that ISIS is not considered such a group, it refuses to publicly identify which, if any, additional groups do so qualify. In fact, Department of Defense officials have suggested that their definition of “associated forces” could at least in theory cover uses of force against an array of emerging groups in places as far flung as Mali, Libya, and the Congo.

Just about no one supports this state of affairs. Congressional leaders from both sides of the aisle have complained that they when they voted in favor of the AUMF they never could have envisioned that they were authorizing the nation’s longest, and ever-evolving, war. To that end, many have called for the AUMF’s repeal — or, at the very least, its narrowing to the specific groups (if any) that continue to pose a threat to the United States that can’t adequately be quelled through existing law enforcement tools, cooperative counter-terrorism efforts, and self-defense authorities. Even President Obama, in a speech last May, supported the call for “refining or repealing” the AUMF. To date, however, Congress has done nothing.

Enter ISIS. It’s not surprising, given the politics of the moment, that congressional leaders have gravitated toward the existing statutory use-of-force authorities — the 2001 AUMF, as well as the 2002 authorization to use military force to bring down Saddam Hussein’s totalitarian regime. Congress is risk-averse — never more so in an election year. But it would be incredibly disheartening for Congress to conclude either that those statutes encompass ISIS. After all, because ISIS had no connection to 9/11, it’s not a good fit for the 2001 AUMF. And because ISIS had nothing to do with Saddam Hussein’s regime in Iraq, it’s an even poorer fit for the 2002 statute.

If anything, the fact that the 2001 AUMF and 2002 Iraq statute are even on the table in this discussion underscores why it is so important for force authorizations to be tailored and precise, not opaque and open-ended. If a prolonged campaign against ISIS is necessary, then President Obama should go to Congress to seek statutory authorization for the war we will be fighting, not the war we sought to fight a decade ago. Such a statute should be narrow and IS-specific, ideally with a sunset clause, so as to prevent it from being used the way some would use the AUMF today — as an end-run around congressional authorization in response to new threats in the future. Meanwhile, as it becomes increasingly apparent that the real threat today comes from ISIS, and not the lingering shadows of old enemies, the flip-side of this lesson is the importance of repealing (if not scaling back) the 2002 Iraq authorization and 2001 AUMF.

Any other solution would only exacerbate the problems that the AUMF debate has exposed (and that virtually nobody supports): an unending war against an unnamed enemy, without public accountability or debate.

Jennifer Daskal is an assistant professor of law at American University Washington College of Law and former counsel to the Assistant Attorney General for National Security at the Department of Justice. Steve Vladeck is a professor of law and the Associate Dean for Scholarship at American University Washington College of Law.