Section-by-Section Analysis of Rep. Schiff's AUMF Proposal

As several colleagues noted last week, Representative Adam Schiff has revived his effort to get Congress to replace the 2001 and 2002 AUMFs with a new “Consolidated AUMF” that would explicitly name the Islamic State (he had a similar bill in the last Congress, which Jack endorsed here). What follows below is a section-by-section analysis of H.J. Res. 100, intended to highlight the key moving parts while also flagging a few issues that deserve further attention should the bill move forward.

I’ve highlighted three key elements in that operative section:

PURPOSE: Note the opening sentence uses a broad and indeterminate framing of purpose, just generally referring to protection of US national security. I think that’s probably a good thing, as I’m not confident that there’s a more specific formulation that would work better and, in any event, I think procedural constraints—specifically, a sunset—are more likely to have actual constraining effect if and when constraint is needed.

NARROWING ASSOCIATED FORCES: The associated forces definition above mostly tracks the government’s long-standing position, but it seems to me to be narrower in one key respect: When it comes to the requirement that “co-belligerents” are engaged in hostilities, the common formulation in years past has been to require that the hostilities involve either the United States or unspecified “coalition partners.” Schiff’s formulation drops that “coalition” prong. I don’t know if that matters a great deal in practice. It’s a significant difference in theory, however. And I’ll note that it does create some potential disjunction between the organizational scope of detention authority in the NDAA FY’12 and the organizational scope of the new Consolidated AUMF. More on that below…

SUNSET: The bill has a three-year sunset. My only complaint here is that I’d love to see an even number tailored to always arise in a year that is not an election year.

Identifying the Associated Forces: For the past fifteen years we’ve had no formal requirement that the government disclose to Congress, let alone the public, which groups it considers to be within the scope of the 2001 AUMF on “associated forces” grounds. Sometimes there are public disclosures, sometimes there are not. That’s a bad state of affairs, and it’s ever less sustainable as the years roll by and the cast of characters in the al Qaeda-affiliated universe continues to evolve. Schiff’s proposed solution is a good one, creating an obligation to inform key Congressional committees and a default obligation to inform the public as well. Note that the language needs a bit of tweaking, since the safety-valve provision (allowing for classification of an associated-forces determination or geographic expansion) clearly applies to the Congressional notification requirement but is silent on the Federal Register publication requirement; no doubt the intent is to impact the latter as well.

Does This Encompass Activities Other than Kinetic Operations? One wrinkle to note: The trigger for notification is that an action takes place under color of the AUMF’s authority. Framed in that general way, the notification requirement might pick up a vast amount of activity beyond targeting and detention scenarios; for example, there are any number of actions the military might conduct in support of local partners and that might depend in part on AUMF authority. It is not necessarily a good or bad thing that the scope of notification could therefore be broad, yet I can imagine this might lead to some mistaken assumptions about the nature of U.S. engagement with associated forces or in new locations, as some will assume that such extensions necessarily mean “drone strike” or the like.

Should Article II Authority Also Trigger Special Notifications? Conversely, note too that none of this applies to military actions that might be undertaken under color of Article II standing alone. I can imagine the sponsors of the bill might be a bit loathe to take an action that appears to endorse the idea that the President has Article II authority to use military force in at least some counterterrorism contexts not covered by an AUMF. Still, some version of that authority is out there, as the Obama administration quietly reminded us at times, and it would be well to think about Congressional and public notifications with that in mind. Perhaps the WPR already covers this ground well enough (with help from the more-recent “special military operations” reporting obligation involving SASC and HASC, which covers certain uses of lethal force by special operations forces). But perhaps not; the question seems worth more analysis.

A last point: In an excess of caution, it would be best to add language clarifying three important matters.

Detention Questions: First, the resolution should make clear whether Congress intends for the authority herein granted to include the sort of military detention authority codified in the NDAA for Fiscal Year 2012 (which effectively codified the government’s litigation position from the prior decade regarding the detention authority provided by the 2001 AUMF, but which of course does not speak to the Islamic State by name). This could be done simply by including a subsection referencing that NDAA provision and making its organizational scope coextensive with the new AUMF’s language.

Military Commission Questions: Second, the resolution should likewise make clear whether it intends for the organizational scope of military commission jurisdiction likewise be made coextensive with this new formulation.

LOAC Compliance: Third, the resolution should include language making clear that the force it authorizes is meant to be exercised in accordance with the law of armed conflict.

Ground Combat Forces: Section three is a huge improvement on the messy language the Obama administration had embraced in an earlier effort to craft an AUMF for the Islamic State that would outright-preclude large-scale deployment of ground forces. Instead of banning such deployments, the Schiff model just requires notice to Congress alongside a fast-track procedure for Congressional consideration of any subsequent proposals to pass new legislation to revoke the AUMF. This lowers the stakes sharply, making it less significant that it remains very hard to say just which deployments would count as “ground forces in a combat role.” Schiff’s language in Section 3(c)(3) does a decent job of describing the increasingly-numerous and increasingly-combat-focused roles currently performed by our ground forces in Iraq and Syria (see Linda Robinson’s pithy account here), for what it’s worth.

Putting Away the Old AUMFs: Section Four is straightforward: it takes both the 2001 and 2002 AUMFs off the books, leaving the new AUMF to bear all the (statutory) weight.