This article is the second in a three-part series on legal issues surrounding American involvement in conflicts in the Middle East. You can read Part One here.
The White House has come under attack since issuing a statement that the Authorization for Use of Military Force (AUMF) was grounds for use of force when fighting against ISIS in Iraq and Syria. Passed in 2001, the AUMF gives the president the authority to attack the perpetrators of the September 11th attacks. Additionally, the White House has stated that congressional authorization for use of force in Iraq, passed in 2002, is further grounds for military action against ISIS.
One of the staunchest opponents to White House’s arguments is Sen. Tim Kaine (D-Virginia). Kaine has spoken out publicly, stating, “ISIL did not perpetrate the attacks of 9/11. ISIL was not formed until after 9/11. Calling ISIL a perpetrator of the 9/11 attacks is to basically torture the English language. . . .”
Kaine’s proposed limitations on the current AUMF include no involvement by United States ground troops (air attacks would be allowed), repealing the 2002 Congressional authorization for use of military force in Iraq, and automatically repealing any future legislation that is passed after one year. Kaine believes that these provisions would allow for the president to act in a narrow, enumerated way.
Whether or not there will be a Congressional vote on the issue is now up in the air, since Congress has recessed for midterm elections. Additionally, it seems that party lines may be influencing the decision to bring politicians back to Washington, D.C. for a vote. House Speaker John Boehner has expressed the Republican viewpoint by stating that he does not believe it would be best for politicians to vote on legislation if those same politicians may not be in Congress a few weeks after such a vote. Boehner stated that Congress should not address the issue until January 2015, once the new Congress has convened and the president has proposed what powers he deems necessary to attack ISIS.
Underlying the White House’s explanation for its use of force, as well as Congress’s decision on when to vote on limiting the President’s authority, is the crux of Kaine’s argument. The nucleus of the Executive Branch’s authority to use military force without congressional approval is whether or not there is an imminent or ongoing threat against the United States by ISIS.
Some would argue that ISIS is a current threat to the United States through its use of rhetoric and murder of American hostages. However, many believe that ISIS is not posing a legitimate threat to the United States, and believe that broad authorization from the president to order attacks without Congressional approval is a violation of the Constitution.