A New Authorization for Use of Military
Force Against the Islamic State: Comparison
of Current Proposals in Brief
Matthew C. Weed
Analyst in Foreign Policy Legislation
October 21November 6, 2014
Congressional Research Service
7-5700
www.crs.gov
R43760
A New Authorization for Use of Military Force Against the Islamic State: In Brief
Contents
The IS Crisis and the U.S. Response ............................................................................................... 1
Presidential Authority to Use Military Force Against the Islamic State .......................................... 1
2001 Post-9/11 Authorization for Use of Military Force ........................................................... 12
2002 Authorization for Use of Military Force Against Iraq ...................................................... 2
Presidential Authority Under Article II of the Constitution....................................................... 23
Calls for a New AUMF Targeting the Islamic State ........................................................................ 3
Current IS AUMF Proposals ............................................................................................................ 34
Scope of Force and Military Activities Authorized ................................................................... 45
Targeted Entities .................................................................................................................. 5
Purpose of Authorization..................................................................................................... 56
Conditions on Use of Military Force................................................................................... 67
Limitations on Use of Military Force .................................................................................. 67
Repeal of Previous AUMFs................................................................................................. 78
Reporting and Certification Requirements .......................................................................... 8
War Powers Resolution and Expedited Consideration Provisions ...................................... 89
Tables
Table 1. Proposed Authorizations to Use Force Against the Islamic State ...................................... 4
Table 2. Proposed Authorizations for Use of Military Force Against the Islamic State ................ 10
Contacts
Author Contact Information........................................................................................................... 18
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A New Authorization for Use of Military Force Against the Islamic State: In Brief
The IS Crisis and the U.S. Response
The armed offensive of the Islamic State (IS, also known as ISIL or ISIS) in northern and western
Iraq and northeastern Syria has raised significant concerns for the United States. After first
ordering multiple deployments of U.S. troops to Iraq to provide security to diplomatic personnel
and facilities, advise Iraqi security forces, and conduct intelligence gathering and reconnaissance,
President Obama began ordering U.S. military airstrikes on IS forces in Iraq in August 2014.
Later in September, after laying out plans for expanded use of military force against the Islamic
State in a televised speech to the American people, the President ordered U.S. military airstrikes
in Syria against both IS forces and forces of the “Khorasan Group,” identified by the President as
part of Al Qaeda.
Presidential Authority to Use Military Force Against
the Islamic State1
The President in his August 2014 notifications to Congress of deployments and airstrikes in Iraq
indicated his powers as Commander in Chief and Chief Executive under Article II of the
Constitution gave him authority to undertake such action. Obama Administration officials and the
President’s September 2014 notifications2 to Congress for airstrikes and other actions in Iraq and
Syria, however, have stated that two enacted authorizations for use of military force (AUMFs),
the the
Authorization for Use of Military Force (2001 AUMF; P.L. 107-40), and the Authorization for
Use of Military Force Against Iraq Resolution of 2002 (2002 AUMF; P.L. 107-243), provide
authorization for certain U.S. military strikes against the Islamic State.
2001 Post-9/11 Authorization for Use of Military Force
In response to the 9/11 terrorist attacks, Congress enacted the AUMF authorizing the President to
use military force against “those nations, organizations, or persons he determines planned,
authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or
harbored such organizations or persons.... ” Although the Islamic State does not appear to fall
within that language, it is possible that the executive branch regards it as one of the “associated
forces” fighting alongside Al Qaeda and the Taliban that it asserts are also targetable under the
1
in Iraq and Syria, as well
as the Khorasan Group of Al Qaeda in Syria. Most recently, the President on November 5, 2014,
indicated that he intends to enter into discussions with congressional leaders to develop a new
AUMF specifically targeting the Islamic State, in order to “right-size and update whatever
authorization Congress provides to suit the current fight, rather than previous fights” authorized
by the 2001 and 2002 AUMFs.3
1
For more information and analysis of the IS crisis, the U.S. response, presidential authority to use military force, and
the operation of the War Powers Resolution in this situation, see CRS Report RL33487, Armed Conflict in Syria:
Overview and U.S. Response, coordinated by Christopher M. Blanchard; CRS Insight IN10147, Considerations for
Possible Authorization for Use of Military Force Against the Islamic State, by Matthew C. Weed; and CRS Report
R43720, U.S. Military Action Against the Islamic State: Answers to Frequently Asked Legal Questions, by Michael
John Garcia and Jennifer K. Elsea.
Another proposal, H.J.Res. 127, introduced September 8, 2014, would recognize a state of war exists between the
United States and the Islamic State, and authorize the use of military force against the Islamic State and associated
forces.
2
Available at http://www.whitehouse.gov/the-press-office/2014/09/23/letter-president-war-powers-resolutionregarding-iraq; http://www.whitehouse.gov/the-press-office/2014/09/23/letter-president-war-powers-resolutionregarding-syria.
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2001 AUMF.3
3
President Barack Obama, remarks at a press conference, November 5, 2014, http://www.whitehouse.gov/the-pressoffice/2014/11/05/remarks-president-press-conference.
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A New Authorization for Use of Military Force Against the Islamic State: In Brief
2001 Post-9/11 Authorization for Use of Military Force
In response to the 9/11 terrorist attacks, Congress enacted the AUMF authorizing the President to
use military force against “those nations, organizations, or persons he determines planned,
authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or
harbored such organizations or persons.... ” Although the Islamic State does not appear to fall
within that language, it is possible that the executive branch regards it as one of the “associated
forces” fighting alongside Al Qaeda and the Taliban that it asserts are also targetable under the
2001 AUMF.4 The Obama Administration had stated previous to the latest action against the
Islamic State and the Khorasan Group that it will use force against such associated forces under
the 2001 AUMF only when they are lawful military targets that “pose a continuing, imminent
threat to U.S. persons.... ” Due to Al Qaeda’s February 2014 disavowal of any remaining ties with
the Islamic State, some question whether the Islamic State can be considered an associated force
under the 2001 AUMF. The Obama Administration has stated that the Islamic State can be
targeted under the 2001 AUMF because its predecessor organization, Al Qaeda in Iraq,
communicated and coordinated with Al Qaeda; the Islamic State currently has ties with Al Qaeda
fighter and operatives; the Islamic State employs tactics similar to Al Qaeda; and the Islamic
State, with its intentions of creating a new Islamic caliphate, is the “true inheritor of Osama bin
Laden’s legacy.”45
2002 Authorization for Use of Military Force Against Iraq
Congress enacted the 2002 AUMF prior to the 2003 U.S. invasion of Iraq that toppled the
government of Saddam Hussein, with U.S. military deployments to and operations in Iraq
continuing until December 2011. The 2002 AUMF authorizes the President to use U.S. armed
forcesArmed
Forces to enforce relevant United Nations Security Council resolutions and to “defend the national
national security of the United States against the continuing threat posed by Iraq.... ” Although the 2002
2002 AUMF has no sunset provision and Congress has not repealed it, one view is that after the
establishment of a new Iraqi government, the restoration of full Iraqi sovereignty, and the U.S.
withdrawal from Iraq, the 2002 AUMF no longer has force. Obama Administration officials have
recently voiced support for repealing the 2002 AUMF, reflecting the Administration’s belief that
it is no longer needed. Conversely, another view asserts that, although its preamble focuses on the
Saddam Hussein regime and its WMD programs, the 2002 AUMF’s authorization language is
broad, referring only to a “continuing threat” from Iraq, and that the 2002 AUMF could provide
authority to defend against threats to Iraq as well as threats posed by Iraq. Indeed, 2002 AUMF
authority was the basis for the U.S. military presence in Iraq from the fall of Saddam Hussein and
completion of the WMD search to its 2011 withdrawal, a span of over eight years, a period that
could be characterized as dealing with threats to Iraq rather than threats from Iraq. The IS threat
in Iraq could therefore be seen as breathing new life into 2002 AUMF authority. In addition,
former supporters of Saddam Hussein reportedly provide support to the Islamic State, possibly
forming a link between the original aims of the 2002 AUMF and any future actions taken against
the Islamic State.
Presidential Authority Under Article II of the Constitution
Article II of the Constitution makes the President Commander in Chief of the U.S. armed forces,
and gives the President certain foreign affairs powers. It is debated to what extent Article II
authorizes the President to unilaterally use military force, especially given Congress’s Article I
war powers, including the power to declare war. The President’s authority to use force to defend
the United States, its personnel, and citizens against ongoing or imminent attack has been
3
4
Testimony of Stephen W. Preston, General Counsel, Department of Defense, before the Senate Committee on Foreign
Relations, hearing on the Authorization for Use of Military Force, 113th Cong., 2nd sess., May 21, 2014,
http://www.foreign.senate.gov/imo/media/doc/Preston_Testimony.pdf.
45
White House, “Press Briefing by Press Secretary Josh Earnest,” press release, September 11, 2014,
http://www.whitehouse.gov/the-press-office/2014/09/11/press-briefing-press-secretary-josh-earnest-9112014.
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Presidential Authority Under Article II of the Constitution
Article II of the Constitution makes the President Commander in Chief of the U.S. Armed Forces,
and gives the President certain foreign affairs powers. It is debated to what extent Article II
authorizes the President to unilaterally use military force, especially given Congress’s Article I
war powers, including the power to declare war. The President’s authority to use force to defend
the United States, its personnel, and citizens against ongoing or imminent attack has been
generally accepted, while employing such force simply to further foreign policy or general
national security goals is more controversial. In Iraq, the President would seem to have
substantial authority to use force to defend U.S. personnel, the U.S. embassy in Baghdad, and any
other U.S. facilities and property. His August 2014 notifications of airstrikes in Iraq, however,
have also cited as justification furthering U.S. national security and foreign policy interests, and
have described uses of force to provide humanitarian assistance, and to aid Iraqi security forces in
their fight against the Islamic State. In addition, the President’s stated strategy for degrading and
destroying the Islamic State, as well as his September 2014 notifications to Congress of airstrikes
and other actions in Iraq and Syria, are not based primarily on immediate protection of the United
States, its personnel, or citizens. Thus, it can be argued that Article II alone might not provide
sufficient authorization for the use of military force against IS and Khorasan Group forces in Iraq
and Syria.
Calls for a New AUMF Targeting the Islamic State
Although the Obama Administration has claimed 2001 AUMF and 2002 AUMF authority for its
recent and future actions against the Islamic State, it might be argued that these authorizations do
not apply, and that these actions also fall outside the President’s Article II powers. Concerned
with Congress’s constitutional role in the exercise of the war power, perceived presidential
overreach in that area of constitutional powers, and the President’s expansion of the use of
military force in Iraq and Syria, several Members of Congress have expressed the view that
continued use of military force against the Islamic State requires congressional authorization.
Members differ on whether such authorization is needed, given existing authorities, or whether
such a measure should be enacted. As mentioned above, President Obama has stated that he
would seek to come to agreement with congressional leaders on a new AUMF targeting the
Islamic State, bolstering calls from Congress for such new authorization.
Language in a new AUMF targeting the Islamic State and other groups (IS AUMF) could either
broaden the purpose of military force to include unspecified U.S. national security interests, or
narrow the scope of authorization to specific objectives related to the Administration’s stated goal
of “degrading and ultimately destroying” the Islamic State. Congress could limit the IS AUMF’s
geographic scope, authorizing force only in Iraq and/or Syria. With continued uncertainty
surrounding the Iraqi government, Congress might include authorization to use U.S. Armed
Forces in Iraq in furtherance of political stability objectives. Provisions in any IS AUMF targeting
the Islamic State might address the possible effect that targeting the Islamic State in Syria and
Iraq could have on the ongoing conflict in Syria. Congress might also include a prohibition on the
use of appropriated funds for the use of military force outside the scope of the specified
authorization.
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Current IS AUMF Proposals6Current IS AUMF Proposals5
In September 2014, a number of Members proposed several new authorizations to use military
force against the Islamic State:
5
This section does not include proposals introduced earlier in the 113th Congress that would, for example, repeal
existing AUMFs or express a sense-of-Congress about military action in Iraq and/or Syria.
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Table 1. Proposed Authorizations to Use Force Against the Islamic State
Bill or
Resolution
Title
Sponsor
Date Introduced
H.R. 5415
Authorization for Use of Military Force
against International Terrorism Act
Representative Frank Wolf
September 8, 2014
H.J.Res. 123
Authorization for the Use of Military
Force Against the Islamic State of Iraq
and the Levant (ISIL)
Representative Darrell Issa
September 8, 2014
S.J.Res. 42
Authorization for Use of Military Force
against the Islamic State in Iraq and the
Levant
Senator Bill Nelson
September 8, 2014
S.J.Res. 43
Authorization for Use of Force Against
the Organization Called the Islamic State
Senator James Inhofe
September 8, 2014
S.J.Res. 44
Authorization for Use of Military Force
against the Islamic State in Iraq and the
Levant
Senator Tim Kaine
September 8, 2014
H.J.Res. 125
Authorization for Use of Military Force
Against ISIL Resolution
Representative Adam Schiff
September 16, 2014
H.J.Res. 128
Authorization for Use of Military Force
Against ISIL Resolution
Representative John Larson
September 19, 2014
Note: As of the date of this report, each proposal has been referred to either the House Foreign Affairs
Committee or Senate Foreign Relations Committee, except H.J.Res. 128, which is before both the House
Foreign Affairs and House Rules Committees.
None of these proposals have received any formal action from their assigned committees. Each of
these proposals, therefore, could be subjected to amendment in committee or on the floor. In
addition, each of these proposals or similar provisions to authorize use of military force might be
included as amendments to other pending bills, including the Howard P. “Buck” McKeon
National Defense Authorization Act for Fiscal Year 2015 (H.R. 4435), which is currently pending
in the Senate.
The President’s recent statement that he would enter into discussions with congressional leaders
on enacting a new AUMF targeting the Islamic State might affect future congressional action on
any of these proposals. Although one of the current IS AUMF proposals might be adopted as the
vehicle for any congressional-executive agreement on authorization, it is not clear what
authorization language might be proposed by the executive branch in its discussions with
congressional leaders, possibly requiring significant changes to existing proposals or the
introduction of a new IS AUMF. In addition, a number of the current proposals contain provisions
to limit presidential authority to use military force against the Islamic State as to scope and
6
This section does not include proposals introduced earlier in the 113th Congress that would, for example, repeal
existing AUMFs or express a sense-of-Congress about military action in Iraq and/or Syria.
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duration, and in some cases to sunset or repeal the existing authority in the 2001 and 2002
AUMFs. The Administration might seek to roll back such restrictions to ensure the maximum
authority for the President to carry out the military campaign against the Islamic State “not just ...
over the next two or three months, but our strategy going forward.”7 Although the President
indicated that discussions with congressional leaders on this issue would begin in November
2014, he stated that the process involved with a new IS AUMF may carry over into the 114th
Congress.8
Scope of Force and Military Activities Authorized
All but one of the currently proposed IS AUMFs are substantially similar in their description of
the scope of authorized force, stating that the President is authorized to use “necessary and
appropriate force.” Two of the proposals grant the President the authority to determine what type
and degree of force is necessary and appropriate, while four others state that “necessary and
appropriate force” is authorized, without stating who is authorized to make such a determination.
H.J.Res. 125 does not limit the scope of the use of force in this way, however, stating that the
President is authorized to “use the Armed Forces of the United States,” without requiring such use
of force to be “necessary and appropriate” as determined by the President or otherwise. While it
might be expected that the President, as Commander in Chief, will make the “necessary and
appropriate” determination in all cases regardless, explicitly granting the President that role in the
authorization might preclude congressional challenges to presidential decision making after an
authorization is enacted.
S.J.Res. 44 also specifies the scope of military activities authorized and the objective of those
activities. Under this proposed IS AUMF, the President is authorized “to participate in a campaign
of airstrikes ... to degrade and defeat ISIL.... ” Coupled with a general prohibition against the
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President’s use of ground troops against the Islamic State, this provision might be effective in
preventing expansion of the military activities that the President might utilize against IS forces.
Targeted Entities
Each of the proposed IS AUMFs identifies the Islamic State (using that moniker or one of the
ISIS/ISIL aliases) as the target of authorized U.S. military force. S.J.Res. 43 specifies “ISIL” but
also “any successor organization” to the Islamic State. S.J.Res. 44 extends the authorization to ISassociated forces, subject to the President’s identification of such groups to Congress through a
certification process set out in the resolution. While these provisions seem straightforwardly
effective in ensuring they authorize force against the Islamic State, they might be considered less
than sufficient in their coverage of the overall situation in Iraq and Syria. In late September,
President Obama notified Congress of strikes against IS forces in Syria, but also made a separate
notification of airstrikes in that country against the “Khorasan Group,” identified by the President
as part of Al Qaeda. If Congress intends to enact an AUMF to direct the President to conduct
military activities in Iraq and Syria, it might craft authorization language that can encompass nonIS associated groups, of which the Khorasan group might be an example. On the other hand,
Congress might choose to deliberately exclude such groups from a new authorization.
7
President Barack Obama, remarks at a press conference, November 5, 2014, http://www.whitehouse.gov/the-pressoffice/2014/11/05/remarks-president-press-conference.
8
Ibid.
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H.R. 5415 includes the Islamic State as a target, but also covers a number of other named terrorist
groups and expansive categories of terrorist threats. The lawful targets of the bill include
those countries, organizations, or persons associated with or supporting terrorist groups,
including al Qaeda and its regional affiliates, the Islamic State of Iraq and Syria, al Shabaab,
Boko Haram, and any other emerging regional terrorist groups that share a common violent
extremist ideology with such terrorist groups, regional affiliates, or emerging terrorist
groups....
This broad language would significantly expand the authorized use of military force not only with
regard to the current crisis with the Islamic State in Iraq and Syria, but also in terms of U.S.
counterterrorism activities worldwide. The authorization seems to include every state, other
entity, or person that is part of or supporting a terrorist group, authorizing use of U.S. armed
forcesArmed
Forces against each. In this regard, H.R. 5415 would seem to essentially serve as an expansive
replacement for the authorities in the 2001 AUMF, delinking U.S. military action from the
September 11, 2001, attacks that serve as some limitation on the use of military force in that
earlier authorization.
Purpose of Authorization
Most of the proposed IS AUMFs state that their purpose, at least in part, is to “defend the national
security of the United States” against the Islamic State. Some of these proposals include
additional elements, however, that expand the purpose past U.S. national security.” S.J.Res. 44,
for for
example, states that the authorization is also intended to protect the United States and “other
countries” from terrorist attacks. Should the Islamic State expand its operations or shift its tactics
toward an expansive transnational terrorist agenda, such authorization could prove to be far
reaching. S.J.Res. 44 also authorizes the use of force to “protect individuals from acts of violence
in clear contravention of international law and basic human rights.... ” Read as an additional
purpose to authorize the use of military force against IS forces, this language might be read to
allow the President to use U.S. armed forcesArmed Forces to fight the Islamic State even in cases where the
United States is not facing a threat to its security. If the additional language were interpreted to be
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a second purpose, the authorization could be read to include military action against actors other
than the Islamic State in order to stop human rights violations, greatly increasing the scope of the
authorization.
Another proposal, S.J.Res. 42, does not include the “defend the national security” language,
instead stating the authorization’s purpose is “to prevent terrorist attacks on the people and
interests of the United States and our allies.” While the focus on the prevention of terrorist attacks
is arguably more limited than a general protection of undefined national security interests, the
inclusion of protecting of U.S. “interests” and allies generally from such attacks could be seen as
broadening the authorization beyond the “U.S. national security” language of other proposals.
Limiting the purpose to preventing terrorist attacks also might narrow the authorization in so far
as insofar as
it would not necessarily include a broader purpose to “defeat” the Islamic State completely or
stop the Islamic State’s ability to operate in a non-ally state such as Syria. H.R. 5415 has similar
purpose language to that of S.J.Res. 42, but also states it is also the authorization’s purpose “to
eliminate” a wide range of terrorist groups (explained in the “Targeted Entities” section, above).
This purpose language, therefore, might not require a known threat to the United States or its
allies prior to the President using military force against a terrorist group. Criteria for assessing the
“defeat” or “elimination” of targeted entities are not included.
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Conditions on Use of Military Force
Three of the proposals include authorization language that states the President has authority to use
military force when the United States is part of an effort by the broader international community,
or part thereof, to meet the threat posed by the Islamic State. H.R. 5415 states that the President
may use military force “with the close consultation, coordination, and cooperation with NATO
and regional allies.... ” S.J.Res. 44 authorizes the President to use military force “as part of a
multinational coalition.... ” H.J.Res. 128 includes two authorizing provisions, one of which seems
to be intended to operate when the U.N. Security Council has passed a resolution authorizing its
membership to use force against the Islamic State. Although each of these proposals seems to
indicate an intent to ensure the United States does not use military force without international
support, it is difficult to say whether the language might strictly require such multilateral action,
or to what extent cooperation and coordinated action with other nations might be required.
Limitations on Use of Military Force
The proposed IS AUMFs contain a number of provisions intended to limit the authority to use
military force. Some of the proposals include language excluding the deployment of U.S. ground
troops from the President’s authority, except for certain types of military units or to carry out
certain activities. These proposals include language excluding authority for “deployment of
ground forces in a combat role,” “Armed Forces in direct combat operations,” “rotational ground
forces,” or “United States ground combat forces.” Each of these descriptions might be interpreted
to affect the President’s authority differently. Excluding deployment of ground forces “in a
combat role” might be more restrictive than excluding forces that engage in “direct combat
operations,” as there might be combat roles for U.S. armed forcesArmed Forces that do not fall within the
interpretation of the term “direct.” A number of types of ground combat forces might also fall
outside the definition of “rotational” ground forces. These differences in language might result in
authorizations with limitations on presidential authority of varied effectiveness. In addition, two
of the proposed IS AUMFs provide exceptions to the limitation on ground troops. H.J.Res. 125
would allow deployment of ground troops that are “special operations forces” or forces “deployed
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in a training, advisory, or intelligence capacity.” While these exceptions might still exclude most
U.S. armed forcesArmed Forces units from deployment under the proposed AUMF, the overall number of
troops that could be deployed under the exceptions could be sizeable, and their roles could place
them in harm’s way in many cases. S.J.Res. 44 also includes exceptions to the ban on ground
troops, allowing deployments for military assistance and training, protection or rescue of U.S.
armed forcesArmed Forces or citizens, and “limited operations against high value targets.”
H.J.Res. 125 and S.J.Res. 44 also include geographic limitations to their respective overall
authority to use military force. Both limit that authority to Iraq and Syria.69 In light of the Islamic
State’s expansive ambitions and operations close to the borders of Turkey, Jordan, Lebanon, and
potentially other countries, such language could prove more restrictive in an evolving conflict
than might be initially assumed. In the context of implementation of recent AUMFs, especially
the 2001 AUMF, such limitations seem to be important, as successive Presidents have interpreted
the 2001 AUMF to allow for use of military force in multiple countries that might not have been
contemplated when Congress enacted the original authorization. S.J.Res. 44 also limits any use of
force against IS associated forces, stating that there is no authority to use force against those
9
H.J.Res. 125 states that the limitation does not apply to foreign military training, although this type of activity would
not be expected to raise questions concerning the authority to use military force.
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forces unless the President identifies such forces in periodic reports to Congress. Again, this
seems to be a response to the executive branch’s implementation of the 2001 AUMF; both
President Bush and Obama have independently interpreted that authority to extend to associated
forces that are “co-belligerents” with Al Qaeda and the Taliban, including forces in multiple
countries outside the original target of U.S. military action, Afghanistan.
Five of the proposed IS AUMFs include a provision that automatically terminates their respective
authorizations after a certain period of time, with sunset provisions of 120 days, one year, 18
months, two years, and three years.
S.J.Res. 44 also includes an interpretive provision, stating that its authorization should not be
construed as “authorizing support for force in support of, or in cooperation with, the national
government of Syria ... or its security services.... ”
Repeal of Previous AUMFs
Four of the proposals would repeal the 2002 AUMF authorizing the use of military force against
Iraq. Two of these four, H.J.Res. 125 and H.J.Res. 128, would also repeal the 2001 AUMF with a
delay, with repeal taking effect 18 months and two years after enactment, respectively. The
Obama Administration had recently adopted the position both that the 2002 AUMF could be
repealed without detriment to U.S. armed forcesArmed Forces or U.S. interests, and that the 2001 AUMF could
could be amended or repealed once the planned U.S. armed forcesArmed Forces withdrawal from Afghanistan was
was completed and a bilateral security agreement with Afghanistan is finalized.710 These repeal
provisions seem to generally correspond with these recent Administration positions. Recent
statements by the Obama Administration and the President’s September 23, 2014, notification to
Congress of strikes against IS forces, however, indicate that the President considers the 2001 and
2002 AUMFs as authority to conduct a military campaign against the Islamic State as well as
other Al Qaeda-related groups. Given this presidential application of existing AUMFs, the repeal
6
H.J.Res. 125 states that the limitation does not apply to foreign military training, although this type of activity would
not be expected to raise questions concerning the authority to use military force.
7
See testimony of Mary McLeod and Stephen Preston, U.S. Congress, Senate Committee on Foreign Relations,
hearing on Authorization for Use of Military Force, 113th Cong., 2nd sess., May 21, 2014.
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provisions might take on the role of repudiating the President’s positions on his existing authority
to use military force against the Islamic State and other terrorist groups. Repeal of these AUMFs
could be seen as an indication that Congress disagrees with the President’s interpretation of his
existing authorities to use force and that it intends to replace his existing authority with a possibly
narrower authority in an IS AUMF.
Reporting and Certification Requirements
Five of the proposed IS AUMFs require presidential reporting to Congress to include various
information, including
•
the Administration’s strategy for military action against the Islamic State and in
Iraq and Syria generally, and implementation of or changes to the strategy;
•
the status of military actions taken under a given authorization;
•
descriptions of plans for further military action, as well as redeployment of U.S.
armed forces after military action is completed;
Armed Forces after military action is completed;
10
See testimony of Mary McLeod and Stephen Preston, U.S. Congress, Senate Committee on Foreign Relations,
hearing on Authorization for Use of Military Force, 113th Cong., 2nd sess., May 21, 2014.
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•
expenditures made pursuant to the authorization, or the budgetary effects of
military action taken; and
•
the status and actions of any multinational coalition cooperating with the United
States to engage the Islamic State and other groups militarily.
S.J.Res. 44 requires the President to report to Congress every 90 days on his identification of IS
associated forces in order to gain the authority to use military force against such associated
forces. In order for the President to have authority to use military force without a relevant U.N.
Security Council resolution, H.J.Res. 128 requires the President to certify that the United States
sought approval of such a resolution, that the Security Council is unlikely to approve such a
resolution, and that the President has instead sought to build a broad coalition of nations to
counter the IS threat.
War Powers Resolution and Expedited Consideration Provisions
Each of the proposals states that its respective provision authorizing the use of military force is
intended to constitute specific statutory authorization within the meaning of Section 5(b) of the
War Powers Resolution (WPR; P.L. 93-148; 50 U.S.C. §§ 1541-1548). Section 5(b) of the WPR
states that the President shall withdraw U.S. armed forcesArmed Forces from active or imminent hostilities
within 60 days after a presidential notification of the introduction of U.S. armed forcesArmed Forces into such
hostilities is made or is required to be made under Section 4(a)(1) of the WPR, unless Congress
has enacted a declaration of war or authorization to use military force, among other exceptions.
The statement that these proposals are intended to act as authorization under the WPR might
indicate Congress’s desire to approve the President’s current military actions, within the scope
and limitations explained above. Although the President ordered the first airstrikes against IS
forces in early August, there does not seem to be clear consensus among experts or Members of
Congress on when the 60-day period began running, and whether it is running currently. The
President’s reliance on the existing AUMFs to conduct military operations against the Islamic
State and other groups in Iraq and Syria, if accepted by Congress, would have stopped any
running of the 60-day clock, whether or not a new IS AUMF is enacted, as there would be
existing congressional authorization for his actions.
Congressional Research Service
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A New Authorization for Use of Military Force Against the Islamic State: In Brief
Section 6 of the WPR provides for expedited consideration of legislative proposals introduced in
accordance with Section 5(b); it is not apparent that any of the current IS AUMF proposals are
currently being subjected to these expedited procedures. Although the WPR sets out these
procedures in legislation, such procedural provisions do not take precedence over the rulemaking
and procedural prerogatives of either house of Congress, and each house maintains the authority
to enforce its own rules at its discretion.8 H.R11 H.J.Res. 128 sets out its own procedures for expedited
consideration of a further resolution authorizing military force against the Islamic State, if such
resolution meets H.J.Res. 128’s definition of a “qualified resolution.” The process is described in
Table 2 below, in the “Expedited Consideration” section.
811
For more information, see CRS Report 98-888, “Fast-Track” or Expedited Procedures: Their Purposes, Elements,
and Implications, by Christopher M. Davis; CRS Report RS20234, Expedited or “Fast-Track” Legislative Procedures,
by Christopher M. Davis; CRS Report RL30599, Expedited Procedures in the House: Variations Enacted Into Law, by
Christopher M. Davis.
Congressional Research Service
9
Table 2. Proposed Authorizations for Use of Military Force Against the Islamic State
Comparison of Similar Provisions (as of October 20, 2014)
Provision
H.R. 5415
H.J.Res. 123
H.J.Res. 125
H.J.Res. 128a
with U.N. Security
Council Resolution
H.J.Res. 128a
without U.N.
Security Council
Resolution
S.J.Res. 42
S.J.Res. 43
S.J.Res. 44
Scope of
authorized
force
“The President is
authorized ... to
use all necessary
and appropriate
force”
“The President is
authorized to use
the Armed Forces
of the United States
as the President
determines to be
necessary and
appropriate”
“The President is
authorized to use
the Armed Forces
of the United
States”
“The President is
authorized to use the
United States Armed
Forces as the
President determines
to be necessary and
appropriate”
Same, except subject
“The President is
to conditions (see
authorized to use
Reporting/
appropriate force”
Certification columnrow,
below) and enactment
of a second joint
resolution under
expedited procedures
“the President is
authorized to use all
necessary and
appropriate force”
“the President is
authorized ... to use
all necessary and
appropriate force”
International
conditions for
use of force
“with the close
consultation,
coordination, and
cooperation with
NATO and
regional allies”
none specified
none specified
U.N. Security Council
resolution authorizing
use of force against
ISIL
No U.N. Security
Council resolution
authorizing use of
force against ISIL
none specified
“as part of a
multinational
coalition”
CRS-10
none specified
Provision
Types of
military action
authorized
H.R. 5415
none specified
CRS-11
H.J.Res. 123
none specified
H.J.Res. 125
none specified
H.J.Res. 128a
with U.N. Security
Council Resolution
none specified
H.J.Res. 128a
without U.N.
Security Council
Resolution
S.J.Res. 42
none specified
S.J.Res. 43
none specified
S.J.Res. 44
“to participate in a
campaign of
airstrikes in Iraq, and
if the President
deems necessary, in
Syria, to degrade and
defeat ISIL”
The resolution
would also authorize
the President to
“provide military
equipment and
training to forces
fighting ISIL in Iraq or
Syria”
H.J.Res. 128a
without U.N.
Security Council
Resolution
H.J.Res. 125
H.J.Res. 128a
with U.N. Security
Council Resolution
Target of use of
military force
“those countries,
“Islamic State of
organizations, or
Iraq and the Levant
persons associated (ISIL)”
with or supporting
terrorist groups,
including al Qaeda
and its regional
affiliates, the
Islamic State of
Iraq and Syria, al
Shabaab, Boko
Haram, and any
other emerging
regional terrorist
groups that share
a common violent
extremist ideology
with such terrorist
groups, regional
affiliates, or
emerging terrorist
groups”
“Islamic State of
Iraq and the
Levant (ISIL)”
“Islamic State of Iraq
and the Levant
(‘ISIL’)”
“Islamic State of Iraq
“Islamic State of Iraq “Islamic State (or
and the Levant (‘ISIL’)” and the Levant (ISIL)” “IS”), formally known
as the Islamic State
of Iraq and the
Levant, as well as any
successor
organization”
“Islamic State in Iraq
and the Levant
(ISIL)”, as well as
ISIL-associated
forces, subject to
requirements in
Section 4 (see
below)
Purpose
“to eliminate all
such terrorist
groups and
prevent any future
acts of
international
terrorism against
the United States
or its allies by
such terrorist
groups, countries,
organization, or
persons”
none specified
“to ... defend the
national security of
the United States
against the Islamic
State of Iraq and the
Levant (‘ISIL’); and
enforce a United
Nations Security
Council resolution”
that authorizes a
multilateral coalition
to take several types
of action against ISIL
“to defend the
national security of
the United States
against the Islamic
State of Iraq and the
Levant (‘ISIL’)”
“to protect the
United States and
other countries from
terrorist attacks by
the Islamic State in
Iraq and the Levant
(ISIL), and in order
to protect individuals
from acts of violence
in clear
contravention of
international law and
basic human rights”
Provision
H.R. 5415
CRS-12
H.J.Res. 123
“to defend the
national security of
the United States
against the
continuing threat
posed by the
Islamic State of Iraq
and the Levant
(ISIL)”
S.J.Res. 42
“to prevent terrorist
attacks on the people
and interests of the
United States and our
allies”
S.J.Res. 43
“to defend the
national security of
the United States
against the threat
posed by the
organization called
the Islamic State (or
“IS”‘IS’), formally known
as the Islamic State
of Iraq and the
Levant, as well as any
successor
organization”
S.J.Res. 44
Provision
H.R. 5415
H.J.Res. 123
H.J.Res. 125
H.J.Res. 128a
with U.N. Security
Council Resolution
Geographic
limitation
none specified
none specified
“authority ... shall none specified
be confined to the
territory of the
Republic of Iraq
and the Syrian
Arab Republic”
Limitation does
not apply to
foreign military
training activities
Military unit
limitation
none specified
none specified
“does not include none specified
the authority for
the deployment of
ground forces in a
combat role”
Limitation does
not apply to
“special
operations forces
or other forces
that may be
deployed in a
training, advisory,
or intelligence
capacity”
Targeting
associated
forces
limitation
none specified
none specified
none specified
CRS-13
none specified
H.J.Res. 128a
without U.N.
Security Council
Resolution
use of U.S. Armed
Forces authorized
“other than the use of
such Armed Forces in
direct ground combat
operations”
S.J.Res. 42
S.J.Res. 43
S.J.Res. 44
none specified
none specified
Authorization applies
to Iraq and Syria
“does not include
authorization for the
use of rotational
ground forces”
none specified
“does not include ...
use of United States
ground combat
forces, except for
[military assistance
and training] or as
necessary for the
protection or rescue
of members of the
United States Armed
Forces or United
States citizens..., or
for limited
operations against
high value targets”
none specified
none specified
“does not include ...
authorization for the
use of force against
forces associated
with ISIL, unless such
forces are identified
in a report submitted
under section 4” of
the resolution.
Provision
H.R. 5415
H.J.Res. 123
H.J.Res. 125
Government of
Syria limitation
none
none
none
Sunset
none
120 days after date
of enactment
AUMF Repeal
none
Resolution would
repeal 2002 AUMF
CRS-14
H.J.Res. 128a
with U.N. Security
Council Resolution
H.J.Res. 128a
without U.N.
Security Council
Resolution
none
S.J.Res. 42
S.J.Res. 43
S.J.Res. 44
none
none
“Nothing in this
resolution shall be
construed as ...
authorizing support
for force in support
of, or in cooperation
with, the national
government of Syria
... or its security
services”
18 months after
2 years
date of enactment
3 years after date of
enactment
none
1 year from date of
enactment
Resolution would
repeal 2002
AUMF
immediately, and
repeal the 2001
AUMF 18 months
after date of
enactment
none
none
Resolution would
repeal 2002 AUMF
Resolution would repeal 2002 AUMF
immediately, and repeal the 2001 AUMF 2
years after date of enactment
Provision
Reporting/
Certification
H.R. 5415
none
H.J.Res. 123
Not later than 60
days after
enactment,
President is
required to report
on “status of all
actions taken”;
“description of all
proposed actions”;
“status of
engagement of allies
of the United States
and international
coalitions in
combating” ISIL;
and “estimated
budgetary effects of
actions proposed”
H.J.Res. 125
H.J.Res. 128a
with U.N. Security
Council Resolution
“The President
none specified
shall, at least once
every 60 days”
after enactment,
report on
relevant matters
including actions
taken and planned
actions under the
authorization
H.J.Res. 128a
without U.N.
Security Council
Resolution
S.J.Res. 42
President must certify none
that the United States
has sought, but the
United Nations
Security Council has
not approved, a
resolution authorizing
the use of force, and is
unlikely to; and that
the President has
sought to build a
broad international
coalition to counter
ISIL
President must
present a strategy for
use of military force
against ISIL
S.J.Res. 43
S.J.Res. 44
Not later than 15
days after enactment,
President is required
to submit
comprehensive
strategy to defeat
the Islamic State; not
later than 90 days
after the first report
is required, President
must report on
implementation of
the strategy; any
substantive change
to strategy requires
an immediate
additional report
Section 4 requires
the President to
identify ISILassociated forces
targetable under the
resolution in a
report every 90 days
none specified
none specified
In both cases, every 60 days the President
must report on uses of lethal force and their
circumstances, civilian casualties resulting from
such use of force, estimate of expenditures
resulting from the use of force, and planning
for redeployment of U.S. Armed Forces after
military action against ISIL is completed
Consultation
none specified
CRS-15
none specified
none specified
“The President shall consult on a regular basis none specified
with the congressional committees of
jurisdiction to provide updated information on
actions being taken pursuant to this joint
resolution in either public or closed sessions”
Provision
War Powers
Resolution
H.R. 5415
H.J.Res. 123
H.J.Res. 125
Bill states
authorization
section is
“intended to
constitute specific
statutory
authorization
within the meaning
of section 5(b) of
the War Powers
Resolution”
Resolution states
authorization
section is “intended
to constitute
specific statutory
authorization within
the meaning of
section 5(b) of the
War Powers
Resolution”
Resolution states
authorization
section is
“intended to
constitute specific
statutory
authorization
within the
meaning of
section 5(b) of the
War Powers
Resolution”
CRS-16
H.J.Res. 128a
with U.N. Security
Council Resolution
H.J.Res. 128a
without U.N.
Security Council
Resolution
(in both cases) Resolution states that
authorization sections are “intended to
constitute specific authorization within the
meaning of section 5(b) of the War Powers
Resolution”
S.J.Res. 42
S.J.Res. 43
S.J.Res. 44
Resolution states
authorization section
is “intended to
constitute specific
statutory
authorization within
the meaning of
section 5(b) of the
War Powers
Resolution”
Resolution states
authorization section
is “intended to
constitute specific
statutory
authorization within
the meaning of
section 5(b) of the
War Powers
Resolution”
Resolution states
authorization section
is “intended to
constitute specific
statutory
authorization within
the meaning of
section 5(b) of the
War Powers
Resolution”
Provision
H.R. 5415
Expedited
Consideration
none
H.J.Res. 123
none
H.J.Res. 125
none
H.J.Res. 128a
with U.N. Security
Council Resolution
none
H.J.Res. 128a
without U.N.
Security Council
Resolution
Provides expedited
none
consideration for a
second resolution, if
such resolution is
introduced by the
majority or minority
leader in the House or
Senate within the next
legislative day after a
required Presidential
certification is
submitted
In both Houseshouses,
second resolution is
to be placed on the
calendar, considered
within one legislative
day, debated for a
maximum of 20 hours,
and voted upon
immediately following
debate; passage of
resolution in one
chamber requires
immediate action by
the second chamber
on the resolution
received
S.J.Res. 42
S.J.Res. 43
none
S.J.Res. 44
none
Source: Congress.gov.
a.
CRS-17
H.J. Res. 128 contains two separate authorization provisions. Section 3 of the resolution operates when the U.N. Security Council has adopted a resolution
authorizing the use of military force against the Islamic State; Section 4 operates when no such resolution has been adopted. Section 4 does not in fact authorize the
use of military force, but instead creates a process of presidential reporting and certification and expedited consideration procedures for a separate resolution to be
introduced after such reporting and certification has been made to Congress. The table therefore sets out the operative provisions and language in H.J. Res. 128 in
two columns to separate the operative language of the two authorization sections. For provisions that apply no matter which authorization section is operative, or
where the resolution does not contain the type of provision being explained, the two columns are combined.
A New Authorization for Use of Military Force Against the Islamic State: In Brief
Author Contact Information
Matthew C. Weed
Analyst in Foreign Policy Legislation
mweed@crs.loc.gov, 7-4589
Congressional Research Service
18