Legal Sidebar
The Obama Administration’s Proposed AUMF
against the Islamic State: Some Immediate
Takeaways
2/19/2015
For several months, the United States has been engaged in offensive airstrikes against the Islamic State
(sometimes referred to as ISIS or ISIL) in Iraq and Syria. On February 11, 2015, President Obama
submitted draft legislation to Congress that would authorize military force against the Islamic State
for three
years, and repeal one of the existing legal authorities that has been cited by the Administration in support
of current U.S. operations. The draft legislation has been the subject of differing opinions
among Members
of Congress, particularly regarding the scope and effect of the proposed authorization for the use of military
force (AUMF), and its relationship with existing legal authorities cited by the Administration in support of
current operations against the Islamic State. This post provides a brief overview of the Administration’s
legal justification for current operations, briefly describes the draft AUMF, and addresses some of the most
frequently asked questions regarding the proposed legislation’s legal effect.
Authorities Cited by the Executive in Support of Ongoing Action against the Islamic State
Initially when U.S. airstrikes against the Islamic State began in August 2014, the executive branch cited
only to the President’s independent authority under Article II of the Constitution
for legal justification. Some
observers and lawmakers questioned this justification and asserted that legislative authorization was
constitutionally required. Moreover, some noted that the War Powers Resolution (WPR)
constrained the
President’s ability to engage in sustained operations against the Islamic State without congressional
approval, as the law requires the termination of unauthorized hostilities within roughly 60 days of their
initiation, unless a declaration of war or specific legislative authorization is obtained.
In September, the Administration began identifying the 2002 Authorization for Use of Military Force Against
Iraq (2002 Iraq AUMF
), along with the 2001 Authorization for Use of Military Force (2001 AUMF) targeting
those responsible for the 9/11 terrorist attacks, as providing statutory authorization for U.S. military
operations against the Islamic State. (Extensive discussion of the Administration’s reasons for believing
these AUMFs apply to the Islamic State, along with criticisms raised against these arguments, is found in
this report
.) The immediate upshot of the Executive’s argument, however, was to seemingly render the
WPR’s deadline for the termination of
unauthorized
hostilities inapplicable to the conflict with the Islamic
State. Nonetheless, the Obama Administration has stated
repeatedly that it would support explicit
congressional authorization for the military conflict with the Islamic State, notwithstanding its belief that the
conflict was already authorized by existing statutes.
The Administration’s draft AUMF against the Islamic State: Description and FAQs
The draft AUMF would provide specific authorization for the use of military force that “the President
determines to be necessary and appropriate against [the Islamic State] or associated persons or forces.” In
the preamble, the bill describes various acts taken by the Islamic State within Iraq and Syria, including the
destabilization of those countries, the commission of human rights abuses, and the killing of U.S. citizens. It
also describes the Islamic State as a “grave threat to…the national security interests of the United States
and its allies and partners,” and characterizes current U.S. actions against the Islamic State as having been
taken “in accordance with [the United States’] inherent right of individual and collective self-defense….”
