Authorizing the president to use military force against ISIL

Thank you Chairman Thornberry, Ranking Member Smith, and members of the committee for inviting me to present my views on the President’s proposed Authorization for the Use of Military Force against the Islamic State of Iraq and the Levant^. I am a senior fellow in Governance Studies at the Brookings Institution. I co-founded and am Editor in Chief of Lawfare, a website devoted to sober and serious discussion of “Hard National Security Choices.” I am the author, co-author, or editor of several books on subjects related to law and national security. These include The Future of Violence: Robots and Germs, Hackers and Drones—Confronting a New Age of Threat (forthcoming 2015), Speaking the Law: The Obama Administration’s Addresses on National Security Law (forthcoming 2015), Detention and Denial: The Case for Candor After Guantánamo (2011), Law and the Long War: The Future of Justice in the Age of Terror (2008), and Legislating the War on Terror: An Agenda for Reform (2009). I have written extensively on both the existing 2001 AUMF and on the need for a new one. The views I am expressing here are my own.

I want to advance two basic arguments today. First, I will argue that the administration’s draft ISIL AUMF is a significantly flawed document, though flawed in ways somewhat different from many of the criticisms being advanced against it. Second, I will argue that many—though not all—of the legitimate criticisms that people of diverse politics are making against the administration’s draft do not apply, or apply with significantly lesser force, to a draft AUMF that Jack Goldsmith, Matthew Waxman, my co-panelist Robert Chesney, and I put forth last year. Given the widespread criticisms of the administration’s draft, I want to suggest that our draft may provide an alternative way forward for this body as it contemplates authorizing military force against ISIL.

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