A Primer on the Corker-Kaine Draft AUMF

No time to read the draft 2018 authorization for use of military force? I’m not sure this post is all that much shorter, but at least it’s not written in statutory format. The following is my assessment of the most important elements and the issues they raise.

1. How would this new AUMF impact authorities under the two existing AUMFs?

Some have argued that it is too risky to repeal the 2001 and 2002 AUMFs, even if this is done in tandem with passage of a new one that expressly preserves the important aspects of those earlier statutes. I’ve never understood that argument; it seems obvious to me that if the new AUMF contains language expressly preserving all authorities established under the older ones, that would mean exactly that.

So how does the new bill approach this question? It repeals the 2001 and 2002 laws, but it states in two places that the new AUMF “provides uninterrupted authority” (emphasis added) to continue using force as had been authorized by the 2001 AUMF—and only the 2001 AUMF.

This should defeat any objection by the administration that passage of this AUMF would undermine existing authorities relating to those named groups (or their “associated forces”). At the same time, it also would be helpful in foreclosing a different sort of mischief: future invocation of the 2002 (Iraq) AUMF in order to carry out an action that cannot be carried out under Article II alone and that cannot be justified under the 2001 authorization either. What might that be? Perhaps nothing. But considering the Iranian role in interfering with Iraqi affairs, I suppose it is possible someone might one day argue that the 2002 AUMF preauthorizes at least some uses of force against Iranian targets. Under the new bill, that argument would be foreclosed.

2. Is there a sunset provision?

Some objected to the idea of a formal sunset (arguing that it gave hope to the enemy that the United States would withdrawal at a known time), while others insist upon including one in order to avoid a repeat of the status quo (in which it is easy for Congress to simply avoid serious engagement over time, with all the political risk born long ago by politicians who are largely gone from the scene).

The new bill tries to thread the needle between these poles by forcing a congressional floor debate at least every four years, but without making the continuation of the authority actually depend on passing fresh legislation at that time.

3. Against Whom Does the New AUMF Authorize Force?

First, the new bill names al-Qaeda, the Taliban, and the Islamic State, thereby ending the lingering dispute over whether ISIS falls within the scope of the 2001 AUMF.

Second, the new bill states that “associated forces” of the named trio also fall within the scope of the authorization, but only insofar as they are formally “designated” as provided elsewhere in the statute. Let’s turn to that designation process, for this is surely the most controversial part of the bill.

4. The new bill names some groups as “associated forces.” Which ones, and are any surprising?

There is a subsection that expressly names five groups as qualifying associated forces:

1. al-Qaeda in the Arabian Peninsula (AQAP)

2. al-Shabab

3. al-Qaeda in Syria (including but apparently not limited to the Nusra Front)

4. The Haqqani Network

5. al-Qaeda in the Islamic Maghreb (AQIM)

The first four on that list are utterly unsurprising for anyone who has followed how the executive branch already has interpreted the 2001 AUMF. The fifth one surprises me a bit: I’m not sure I have seen public confirmation that the administration already has categorized AQIM as an associated force engaged in hostilities to a sufficient degree. There have certainly been some uses of force against AQIM-linked individuals, but in at least some such cases the public reporting suggested the target had his own direct connections to the al-Qaeda core. At any rate, AQIM’s inclusion here strongly suggests that the continued instability in the Sahel has already led the 2001 AUMF to be interpreted to include it.

But that’s not all, and it’s certainly not the most controversial part of the statute. That honor goes to the next subsection, which creates a mechanism for the executive branch to make formal designations of additional associated forces. Before explaining how this works, though, I want to remind readers about the status quo with associated forces under the 2001 AUMF.

5. What is the current process for designating associated forces?

First, it is well-settled that there is some form of associated forces authority under that statute, notwithstanding its lack of language to that effect. Presidents of both parties have construed the statute that way for over fifteen years; Congress expressly articulated the concept when codifying detention authority under the 2001 AUMF (in the fiscal 2012 National Defense Authorization Act); and the courts have accepted it when it has come up in habeas litigation.

Second, as things currently stand there is no requirement for the public to be told when new groups are so designated. To be sure, the public sometimes is told, but nothing in current law requires this, and the track record involves much less clarity than one might like. For a considerable time, even Congress apparently had trouble acquiring this information, though that seems to have changed recently.

Against that backdrop, let’s look at what the new bill does with respect to the possibility of additional associated forces beyond those listed above.

6. Does this statute offer a definition of “associated forces”?

Yes:

(2) the term ‘‘associated forces’’ means any organization, person, or force, other than a sovereign nation, that the President determines

[1] has entered the fight alongside and is a co-belligerent with al Qaeda, the Taliban, or ISIS, in hostilities against the United States or its coalition partners, or that

[2] has been a part of al Qaeda, the Taliban, ISIS, or an associated force designated pursuant to this authorization and is engaged in hostilities against the United States or its coalition partners;” [bracketed number added by me].

Here’s what you need to know about this convoluted language.

The first part is just a codification of the status quo, reflecting the same rather vague formulation that the executive branch has long employed.

The second part is more interesting, in that the “has been” language seems to be designed to foreclose the sort of argument that the Islamic States has precipitated under the 2001 AUMF: Does it properly include splinter groups that remain hostile to the United States but that break with (and perhaps even become hostile to) the original AUMF-covered group. You don’t need me to remind you that some people vigorously object to that interpretation of the 2001 AUMF, so they won’t like seeing it codified here.

7. The statute also gives the president the ability to add new groups. How would this be different from the status quo?

Simplifying things a bit, Section 5 provides that the president can identify new groups as qualifying associated forces, so long as he sends Congress an explanatory report (portions of which may be classified) within 48 hours of a new designation (there’s also an initial 30-day deadline for any immediate additions to the list). Unfortunately, the bill does not state clearly that there must be an unclassified portion of that report ensuring that the public receives clear notification of the addition of the new group. That should be fixed as the bill progresses, though it’s fair to point out that the ensuing congressional debate (discussed below) almost certainly would compel public disclosure of the new designation anyway.

At any rate, once a new designation is made, the quadrennial expedited congressional review mechanism as noted above comes into play, with the object being consideration of a bill to reverse the designation. Critics will object to the fact that it is deeply unlikely that Congress would pass such an immediate reversal, that the president would not veto such a reversal, or that Congress could override such a veto; from that perspective, this “protection” against presidential designations that may not be warranted is little protection at all.

On the other hand, the provision really would pave the way towards floor debate on new designations, which is something I don’t think I have ever seen happen under the status quo. That’s a real benefit, even if not nearly as much of a check as some might like. So the question then becomes: Is that benefit worth whatever costs are entailed?

The obvious costs are two-fold.

First, this system will remove any lingering pressure on Congress to step up to the plate and take a share of ownership in decisions to define this conflict to include a new group. In theory, that’s plainly bad. But in practice has much really been lost? Experience under the 2001 AUMFs suggests we should be cautious. Presidents have construed the 2001 AUMF as needed, and Congress has acquiesced regularly and reliably. On the other hand, it is possible that codification might induce a more adventurous (and problematic) approach on the part of the executive going forward. Which leads to an important pair of questions that are central to the second possible cost of the new bill: What if anything checks the executive’s determinations currently, and might the bill change things for the worse?

In theory, there are three major ways that the executive branch might be constrained in adding a new associated force. First, Congress (if aware) might take formal or informal action that effectively overturns the decision. Second, a judge might review and reject such a determination (if somehow presented with a justiciable case). Third, the executive branch might self-constrain (that is, some within the executive might successfully oppose a bid by others to obtain a new designation, for whatever reason).

Does any of that matter in practice, based on nearly two decades of experience? It is tempting to dismiss the idea of a congressional check, but one wonders whether the possibility of opposition has had at least some constraining effect. Who knows what pressures the Armed Services Committees may have exerted over time? As for courts, the obvious problem is that there is no litigation except when detainees are in a position to raise habeas claims, which is to say we only have litigation testing of associated forces status when someone is taken to Guantanamo. All of which leads me to think that the bulk of the constraint in the post-9/11 period has come from internal frictions.

How would passage of the bill impact this analysis?

The internal checks would remain as before.

As to Congress, it’s a mixed bag. On one hand, it overtly passes the decision-making buck to the White House. On the other hand, it does force floor debate, which never otherwise happens. I’m not sure how to compare this, but given how weak the status quo baseline is, I’m not sure it really matters.

Things arguably are different for the judicial check, in one specific way. As noted, courts largely stay out of the picture, with the exception of detention. In detention cases, courts have proven willing to pass judgment on associated-forces determinations. With passage of the new bill, would that change? The bill expressly modifies the detention section of the NDAA FY’12, so … yes. And so, if the bill passes, and a new group is designated, and a member of that group ends up at Gitmo, and that person challenges the legal basis for his detention through habeas, you can certainly expect the government to argue that the new AUMF not only encompasses detention authority but also makes the relevant associated-forces determination unreviewable (other than by the congressional debate provision). And that might well be the best reading of the statute as currently written. That seems problematic to me, however, and hence I recommend inserting a clause providing that the president’s designation does not foreclose judicial review in the event of a habeas challenge.

8. What does the new bill say about the geography of where force may be used?

There’s an interesting additional element in the bill, responding to some extent to those who are unhappy with the lack of geographic boundaries under the 2001 AUMF. Simply put, the president is obliged to give a special report to Congress (in addition to anything the War Powers Resolution or the Sensitive Military Operations system might already require) when using force under the new law in a new location (apart from a familiar list of current ones), with Congress again obliged at that point to undertake fast track consideration of any bill to forbid use of force in that location.

Ok, that’s more than enough for now. I hope you found it helpful.