Why a New AUMF is Needed For the Islamic State: A Response to The Gamble That Isn’t

*By Andrew Hanson

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In The Gamble That Isn’t, a response to my piece The GITMO Gamble, my colleague, James D’Cruz, questioned my concern with the President relying on the 2001 AUMF to detain ISIS members at GITMO. I argued that doing so was a gamble and that a new AUMF for ISIS would most likely be required. He argued that it would be “very unlikely” that any court would say the Trump Administration lacks the authority to detain members of ISIS at GITMO. He first argued that Trump has statutory authorization (e.g., the 2001 and/or 2002 AUMFs and/or the 2012 National Defense Authorization Act (NDAA)). Then, he turned to the president’s independent authority under Article II. He ends by discussing international law standards that were beyond the scope of my original argument and not salient for the questions of domestic authority that I was discussing. He suggested that there really is no gamble in sending ISIS detainees to GITMO.

While he brought up some interesting additional points, I think he missed the mark. For the reasons below, I think the gamble remains.

2001 AUMF and the 2012 NDAA:

I do not think it would be “very unlikely” for a court to hold that the scope of the 2001 AUMF does not reach ISIS. To my knowledge, no court has passed judgment on the issue. To be sure, courts have referred to “associated forces” when dealing with the 2001 AUMF, but those cases seem distinguishable from the context of ISIS. For example, in Awad v. Obama[1] and Al-Bihani v. Obama,[2] the courts were dealing with individuals who either joined Al Qaeda fighters or groups allied with the Taliban that contained Al Qaeda members. These are hardly as unique and apart from Al Qaeda as ISIS is.

In Parhat v. Gates, where the detainee was not a member of Al Qaeda or the Taliban, while the court did not address the questions of what the precise definition of an “associated force” is or whether using “associated forces” within the definition of enemy combatant exceeds the scope of the 2001 AUMF, it noted that the government’s argument for an “associated force” requires a connection “considerably closer than the relationship suggested by the usual meaning of the word ‘associated.’” In the end, it held that there was insufficient evidence to establish whether Parhat was associated with Al Qaeda or the Taliban in order to be labeled and “enemy combatant” according to the DoD definition. Thus, it would appear very likely that a court would be willing to entertain the questions of whether a group is an “associated force” or whether such an interpretation would exceed the scope of the 2001 AUMF.

It is also possible that without sufficient evidence showing a considerably close relationship, a court might refuse to determine that ISIS is associated with Al Qaeda. While Al Qaeda in Iraq may have planted the seeds of ISIS, it is a very unique and distinguishable entity that has had friction with Al Qaeda since the beginning. That is not to say that it is impossible that a court would determine that ISIS is, indeed, an associated force with Al Qaeda and that the 2001 AUMF thus reaches it. But, as many experts have suggested, saying that ISIS is an associated force of Al Qaeda is a stretch. Even those who support a broad view of what an “associated force” could mean under the AUMF note that it “does not mean ‘not associated’ or ‘repudiated by’ or ‘broken with’ or even ‘used to be associated with.’”

“The language in the NDAA,” Mr. D’Cruz argues, “has been purported to amend the 2001 authorization to permit the use of force against ‘associated forces.’” Yet, even if the 2012 NDAA says that “associated forces” may be detained pursuant to the AUMF, it is merely an affirmation that the AUMF includes detention authority. That is not contested. Nonetheless, the NDAA does not define what an “associated force” is. If the government’s past litigation arguments were any indication, being “associated” would require more than simply aiding and abetting. It would require a considerably close relationship. It would be quite the argument to suggest that Al Qaeda and ISIS are in a considerably close relationship. Thus, even if “associated forces” is read into the 2001 AUMF via the NDAA, it does not negate the need for a new AUMF related to ISIS because, as many experts suggest, arguing that Al Qaeda and ISIS are associated forces is problematic.

Overall, I think it is not as clear as my colleague suggests that the 2001 AUMF or the NDAA provide statutory authority for the Trump Administration to detain ISIS members.

2002 Iraq AUMF:

Mr. D’Cruz briefly suggests that the 2002 AUMF for Iraq provides the authority to use force against, and detain, ISIS members. Admittedly, this is a stronger argument than relying on the 2001 AUMF. However, by its terms, it would appear to apply to the Iraqi state (i.e., the Iraqi government, military, etc.). Even if it could be read to apply to any and every threat emanating from Iraq, that would prohibit its usefulness in Syria, Libya, and any other places we have attacked ISIS. Could a member of ISIS detained in Syria be held at GITMO under the 2002 AUMF? This, too, seems to be a stretch.

Unilateral Action Under Article II:

His next argument is that the President can rely on his independent Article II authorities to use force against, and detain, members of ISIS. But, let’s walk through that analysis.

We can agree that the authority to use “force” includes the authority to detain for the duration of the conflict. When a president is not relying on a congressional authorization to use force, the big questions are whether the president has the independent constitutional authority and whether there are any statutory limitations.

Under the Krass OLC Opinion on Libya, the government argues that it is permissible to unilaterally use force under Article II if: 1) there are strong national interests justifying the use of force without prior congressional authorization and, 2) it is not a “war” within the meaning of the Declare War Clause. Otherwise, congressional authorization is required. Admittedly, the first factor is a low bar and certainly met with regards to ISIS. However, the determination of whether the activities reach the level of a “war” is a fact-specific assessment that arguably cuts against the president’s unilateral action in this context. According to the Krass Opinion, a “war” exists if and only if there is “prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period.” In the context of ISIS, we have been fighting them since at least 2014 (but arguably as far back as 2011). We have utilized bombers, drones, and even deployed boots on the ground in the fight against ISIS. In fact, we have lost military personnel in both Iraq and Syria. This sounds like a prolonged and substantial military engagement that has involved exposing U.S. military personnel to significant risk—including death—over a substantial period of time. If the fight against ISIS is a “war,” by these terms, then the president must obtain congressional authorization. Up to this point, the government has relied on the 2001 AUMF. If a court strikes that reading down, then what?

If it is not a “war” and the president can unilaterally use force, then the next question is whether the actions violate the War Powers Resolution (WPR). Under the Moss OLC Opinion on Kosovo, appropriations statutes can suffice for specific authorization for the purposes of Section 5(b) of the WPR, notwithstanding Section 8(a)(1) (which states that general appropriations are not a specific authorization). But, as I said in my previous post, it is not clear that authorization for the purposes of the WPR would be the same as authorizing the use of force for detention purposes.

Harold Koh has also stated that if the operations do not rise to the level of “hostilities” within the meaning of Section 4(a)(1) of the WPR, then the WPR clock does not start to run. But that, too, does not save unilateral action in this case. When determining whether activities constituted “hostilities” under the WPR, Koh said we should consider whether there is: a limited mission, limited exposure of U.S. forces, limited risk of escalation, or limited military means being utilized. The U.S. is playing a pivotal role in the fight against ISIS, including the use of ground troops, intelligence, and air power. The fact that there are Special Forces units on the ground increases the risk of escalation (beyond the escalation that has already occurred since 2014). And the use of airpower, intelligence, and Special Forces is hardly “limited” military means.

As of February, the U.S. has spent $11.4 billion dollars fighting ISIS. Out of the 18,666 strikes by U.S. and Coalition forces in Syria and Iraq, the U.S. has conducted 14,704 of them. That is not including strikes against ISIS in Libya. As mentioned above, we have also been deploying boots on the ground and losing military personnel in this fight. This has been going on for at least the last 3 years (far more than the limited bombings of seventeen days or two months in Bosnia and Serbia, respectively). As Mr. D’Cruz concedes, this is certainly an “armed conflict” under international law. It defies logic to argue that this is not “hostilities” within the meaning of the WPR. Whether the metric is “war” or “hostilities,” the fight against ISIS arguably meets both. As such, the president would need congressional authorization.

If the president decides to send an ISIS detainee to GITMO, providing an opportunity to challenge his detention under Habeas Corpus, and the court were asked to opine on whether the 2001 AUMF’s “associated forces” argument reaches ISIS, but says it does not (which isn’t impossible), that would put the ISIS fight in an odd place. The solution is a new AUMF for ISIS. The question is whether Democrats would allow it. Hence the reason I suggested sending an ISIS detainee to GITMO would be a gamble.

(Photo Credit: Public Domain)
* Andrew Hanson is a 3L at Harvard Law School.

[1] 608 F.3d 1, 3 (D.C. Cir. 2010).
[2] 590 F.3d 866, 869 (D.C. Cir. 2010).