ISIS or Al-Qaeda – AUMF’s Applicability to ISIS

By David J. Puentes – The Islamic State of Iraq and Syria, also known as “ISIS”, “ISIL”, and the “Islamic State,” has received ever-increasing military attention by the United States in recent months. With limited air strikes in early August 2014, bombardment of ISIS targets in Syria and Iraq in late September 2014, and recent talks regarding the potential need of ground troops to confront ISIS more effectively, there can be little doubt that the United States will be dedicating greater resources in this fight as time elapses.

In light of ISIS’s crimes against the people of Iraq and Syria, the beheading of U.S. journalist James Foley, the beheading of U.S. journalist Steven Sotloff, the beheading of British aid worker David Haines, and a great many other atrocities, it is easy to see why the majority of Americans feel that something should be done.

The question, however, is whether President Obama and the executive branch’s current and future actions require further congressional authorization than that already given.

The United States Constitution expressly gives the power to declare war to Congress. In 1973, Congress enacted the War Powers Resolution, which requires the President to transmit to the Speaker of the House of Representatives and to the President pro tempore of the Senate a written report “in any case in which United States Armed Forces are introduced” into potential hostilities. It then stipulates that “[w]ithin sixty calendar days after a report is submitted” the President must “terminate any use of United States Armed Forces with respect to which such report was submitted.”

The primary piece of legislation being cited as giving President Obama the authority necessary to order military intervention with regards to ISIS without further congressional approval is the Authorization for Use of Military Force (AUMF) approved on September 18, 2001, following the September 11, 2001 terrorist attacks against the United States.

In relevant part, this joint resolution gives the President authorization “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….”

An inordinate part of the debate currently taking place seems to revolve around whether or not ISIS should be considered a part of Al-Qaeda. The reason that some believe this factor to be determinative is two-fold. First, many interpret AUMF to authorize force against Al-Qaeda and close affiliates. Second, Al-Qaeda publicly denounced ISIS and cut all ties with it earlier this year.

Regarding the first, the AUMF does not, in any way, limit itself to Al-Qaeda as the covered organization. AUMF is written in a broad manner, permitting the President to “use…appropriate force against those…he determines planned, authorized, committed, or aided the terrorist attacks….” AUMF grants the president wide discretion regarding to whom it applies. While some argue that Congress could not have foreseen this application to factions such as ISIS and also cite AUMF’s age, AUMF makes no such distinctions or limitations. Had Congress wished to further limit its applicability or even repealed it, it has long had the ability to do so. Such action was even promoted by President Obama in 2013 and introduced to the House of Representatives in 2013, but went no further.

As to the second reason, Al-Qaeda’s disassociation is not, and should not, be determinative of AUMF’s application to ISIS. As Secretary of State John Kerry and other administration officials have mentioned, regardless of whether or not Al-Qaeda cut ties with ISIS, they were, one and the same or, at the least, extremely close affiliates. The members of ISIS were members of Al-Qaeda. Prior to changing the organization’s name it was “Al-Qaeda in Iraq.” Prior to Al-Qaeda’s denouncement, every member of ISIS would have been subject to AUMF application as members of that organization.

To state that ISIS is so far removed from Al-Qaeda that AUMF does not apply, would be as to claim that Al-Qaeda could remove AUMF’s applicability from any particular faction simply by stating that they are no longer in agreement with that faction.

Accordingly, it should only follow that AUMF continues to give President Obama the authorization to use all necessary force with regards to ISIS and any other splintered factions of Al-Qaeda as he would have had they not simply changed their name and claimed a sudden lack of affiliation.

The ideal course of action would simply be to show a united front with regard to ISIS and achieve express congressional authority to confront this threat. On September 8, 2014, Rep. Issa, R-CA, introduced a bill to the House of Representatives to grant President Obama authority beyond contest to confront ISIS. On September 17, 2014 Senator Kaine, D-VA, introduced a bill to the Senate articulating the same.

With elections looming, however, it may be unlikely that the members of Congress will wish to commit themselves to so important and controversial a vote any time soon. As such, President Obama will likely continue to rely upon AUMF for authorization for continued attacks against ISIS, at least until Congress decides to address the situation fully.

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