OCTOBER 22, 2015
It is hard to know whether the United States is serious about defeating the Islamic State of Iraq and the Levant (ISIL). Forward air controllers, no-fly zones, and safe zones aside, the U.S. Congress remains uninterested in passing a dedicated Authorization for the Use of Military Force (AUMF) against ISIL. This is a travesty of American leadership obscured by the banality of congressional inaction. The growing consensus in Washington holds that President Obama’s current path is unlikely to defeat ISIL any time soon. This view is warranted, but as pressure mounts to “do more” against the group, we should be very wary of a course of action that asks American men and women to take risks with their lives while members of Congress refuse even to risk a debate and vote about using force against the group.
The United States is currently waging a low-level war against ISIL in both Iraq and Syria. It includes airstrikes,material support to allied groups, and the occasional special operations raid. Congress has never specifically authorized this war; rather, President Obama has claimed the authority to fight ISIL under the post-9/11 AUMF passed in 2001 to grant authority to confront al-Qaeda and the Taliban. Senior administration officials also claim they have legal authority under the 2002 AUMF passed for the invasion of Iraq.
Both of those claims are tenuous. ISIL did not exist in either 2001 or 2002; despite shared lineage the group is a competitor to al-Qaeda, not an affiliate; and Syria is not Iraq. But plenty of smart folks with law degrees argue that the existing statutes confer all the authority the president needs. In doing so, they ask for too much credulity from the American people and outline a legal foundation that is a poor foundation for a successful military engagement.
President Obama seems to understand this intuitively. Even while claiming the authority to act under existing statutes, he has requested a new AUMF and suggested language for that law. Members of Congress, however, bickered. Some favored an expansive AUMF while others pushed for a more limited set of authorities. In the end, Congress did not debate or vote on a new AUMF and so the war against ISIL goes on under the legal precepts of the 2001 AUMF.
Lawyers can continue to parse words on whether or not the existing AUMF offers the legal authority to wage war against ISIL, but getting authority to start a war is very different than putting yourself in a position to win it.
Call it Clausewitz plus common sense. Winning a war — defeating an enemy —requires clearly understanding that enemy, identifying its weaknesses, and then aligning our military force against it as an extension of our country’s broader policy goals. Waging war against ISIL under either the 2001 or 2002 AUMFs fails on all counts.
Despite what the lawyers argue, ISIL is not a part of al-Qaeda. The group is distinct ideologically, is openly hostile towards al-Qaeda, is fighting al-Qaeda in Syria, emphasizes different operational techniques, and is an order of magnitude larger than the core al-Qaeda organization has ever been. As Will McCants put it about ISIL, “This is not bin Laden’s jihad.” Whatever nuances policymakers and lawyers tout behind closed doors about the 2001 AUMF, the bottom line is that the legal authority for using force against ISIL belies a willful misunderstanding of the group.
Indeed, the federal government seems to be in disagreement with itself. The State Department’s terrorism designations now distinguish ISIL from al-Qaeda, but the statute that authorizes the U.S. government to kill its members does not.
In the United States, starting a war requires a legal authorization. Winning one requires more. Winning requires bringing ends, ways, and means into line. It requires aligning military and diplomatic efforts against a clear understanding of the enemy, and a domestic political commitment to sustain a strategy. The reason we debate an AUMF is not to provide a legal stamp of approval, it is to engage the entire country — through our representatives in Congress — in the process of committing to military force. It is a mechanism for aligning the body politic against a particular enemy and toward the fraught path of war to achieve policy ends.
It is how we commit to something that is really important. When it comes to ISIL, Congress — failing to act on behalf of all Americans — has not shown that commitment. There should be no move to escalate the fight against ISIL without such a declaration.
It may be tempting to blame President Obama for this mistake. After all, he claims the authority to strike ISIL without a new AUMF. But he also asked for a new authorization and offered draft language for a new AUMF. The fundamental insight of our constitution is a system of checks and balances. There is nothing particularly surprising about a president straining the limits of executive authority. It is more notable when Congress simply concedes to it.
The fight, military and otherwise, against ISIL is going to take a long time. And that fight is increasingly dangerous with Russia intervening in Syria on behalf of the regime of Bashar al-Assad. Despite deep political and military limitations, Russia has gained leverage by putting troops on the ground. Let’s not kid ourselves. When the United States Congress fails even to explicitly authorize the use of military force, we concede leverage. That is no defense of President Obama’s missteps in Syria — red-line comment chief among them — but it highlights the hypocrisy of critics who call for more aggressive actions while doing nothing to address the fact that we still operate in a gray area, legally and strategically.
An AUMF against ISIL is essentially dead in Congress. But, as Sen. Tim Kaine has repeatedly argued, it needs to be revived. Hillary Clinton has called for practical steps to improve our leverage in the region. A new AUMF would not radically shift our negotiating position, but it is a low-cost step that would move us in the right direction. It would not be a sea change, but it would force a difficult debate the country needs to have about our ISIL strategy.
Perhaps this argument is naïve. Perhaps the existing legal justification for using force against ISIL is all that is necessary. There is no doubt that an actual congressional debate about an AUMF would raise all sorts of inconvenient disagreements. It is certainly valid to worry about an AUMF being used to justify military efforts for which it was not intended; after all, that is exactly what is happening now.
There can be no doubt that ignoring the issue is easier for both hawks and doves in Congress.
Yet America’s ambiguous intent toward ISIL carries real costs. Blame the administration’s hesitancy, sure. Blame the conflicted priorities of our regional partners, absolutely. Blame Russian duplicity, undoubtedly. But also recognize that the Congress has not approached this problem with the seriousness it requires. We do not have a clear national position on ISIL, and the failure of the AUMF process in Congress is indicative of that uncertainty.
If ISIL is a first-tier national security problem, let us have a first-tier debate about it. This should be a priority whether a member of Congress wants to “do less,” “do the same,” or “do more” against ISIL. The point is that a foreign policy that sends Americans into harm’s way, which we currently have, ought be aligned with explicitly delineated policy goals.
This is not an argument for escalation. It is an argument for aligning policy with action and against subtly justifying military force with statutes that were clearly not designed with this fight in mind.
After all, if we cannot have a serious debate about a danger as significant as ISIL, then jihadis in Syria and Iraq are the least of our problems.
Brian Fishman is a Counterterrorism Research Fellow with the International Studies Program at New America and an Affiliate with the Center for International Security and Cooperation at Stanford University. He is the former Research Director at West Point’s Combating Terrorism Center.
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