[Senate Report 113-323]
[From the U.S. Government Publishing Office]
Calendar No. 653
113th Congress } { Report
SENATE
2nd Session } { 113-323
======================================================================
A JOINT RESOLUTION TO AUTHORIZE THE LIMITED USE OF THE UNITED STATES
ARMED FORCES AGAINST THE ISLAMIC STATE OF IRAQ AND THE LEVANT
_______
December 13, 2014.--Ordered to be printed
Mr. Menendez, from the Committee on Foreign Relations,
submitted the following
REPORT
together with
MINORITY VIEWS
[To accompany S.J. Res. 47]
The Committee on Foreign Relations, having considered an
original joint resolution (S.J. Res 47) to authorize the
limited use of the United States Armed Forces against the
Islamic State of Iraq and the Levant having considered the
same, reports favorably thereon, without amendment, and
recommends that the joint resolution do pass.
CONTENTS
Page
I. Purpose..........................................................1
II. Background.......................................................2
III. Committee Action.................................................3
IV. Discussion.......................................................4
V. Cost Estimate....................................................6
VI. Evaluation of Regulatory Impact..................................6
VII. Changes in Existing Law..........................................6
VIII.Minority Views...................................................7
I. PURPOSE
The purpose of the committee's joint resolution is to
authorize the limited use of the United States Armed Forces
against the Islamic State of Iraq and the Levant (ISIL) and
associated persons or forces for a period of three years,
unless reauthorized. The joint resolution also repeals the
Authorization for Use of Military Force Against Iraq Resolution
of 2002 (Public Law 107-243) and sunsets the Authorization for
Use of Military Force (Public Law 107-40) after 3 years, unless
reauthorized.
II. BACKGROUND
ISIL poses an imminent threat to Iraq and Syria, and is
already challenging U.S. partners bordering these two countries
such as Israel, Jordan, and Lebanon. ISIL demonstrates intent
and capability to seize and hold territory from governments in
the Middle East, and if left unchecked will threaten broader
regional stability, the security of European partners, and
ultimately U.S. security interests. Thousands of foreign
fighters are traveling to Iraq and Syria to join ISIL's ranks,
whether motivated by financial incentives or misguided
ideological convictions. ISIL is well-resourced and well-
connected through a sophisticated media program and continues
to commit systematic abuses of human rights, targeted killings,
and mass atrocities. ISIL publicizes its genocidal intentions,
enslaves women and children, and has executed U.S. citizens and
other hostages.
Article I, Section 8, of the Constitution confers upon
Congress the power to declare war, as well as the power to
raise, support and regulate militias, armies and a navy. While
the United States has engaged in numerous armed conflicts since
1789, Congress has only enacted 11 separate formal declarations
of war against foreign powers in five wars: the War of 1812,
the Mexican-American War, the Spanish-American War, World War I
and World War II. The more common practice has been for
Congress to provide authorizations for the use of military
force, even when the President has requested a declaration of
war, as occurred in 1815 in Algeria. Even on the occasions that
Congress has declared war, Congress has also taken the
additional step of authorizing the President to use force to
prosecute the war. It has thus been clearly demonstrated that
Congress does not need to provide a declaration of war in order
to provide full authorization for the President and the armed
forces to wage war.
In the years since World War II, Congress has preferred to
rely upon authorizations for the use of military force in order
to empower the President to employ the armed forces in certain
situations. In the 1964 Gulf of Tonkin Resolution, Congress
approved the President's determination to take ``all necessary
measures to repel any armed attack against the forces of the
United States and to prevent further aggression'' in Southeast
Asia. The resolution had no specific sunset date and was
instead set to expire upon the President's determination or
Congressional repeal--the latter of which occurred in 1971. Two
years later, following controversy over the entrance of the
United States into the Vietnam War and the duration of U.S.
involvement, Congress enacted the War Powers Resolution as a
means to reassert its constitutional authority, and to provide
appropriate procedures for the Legislative and Executive
branches to follow in situations where the United States could
become committed to an armed conflict. The War Powers
Resolution clarified that the constitutional powers of the
President as Commander-in-Chief to introduce United States
Armed Forces into hostilities, or into situations where
imminent involvement in hostilities is clearly indicated by the
circumstances, are exercised only pursuant to (1) a declaration
of war, (2) specific statutory authorization, or (3) a national
emergency created by attack upon the United States, its
territories or possessions, or its armed forces. The resolution
directs the President to notify Congress 48 hours before U.S.
armed forces are introduced into hostilities and regularly
report to Congress thereafter. Furthermore, it prevents U.S.
armed forces from remaining engaged in hostilities for more
than 60 days--with an additional 30 day window for withdrawal
of U.S. armed forces--absent passage of a declaration of war or
authorization for the use of military force from Congress.
Following the tragic events of September 11, 2001, the
President consulted with Congress in drafting a joint
resolution for military force against those responsible for
attacks on the United States. The Authorization for Use of
Military Force (Public Law 107-40) (2001 Al-Qaeda AUMF), which
passed the Congress with overwhelming support, authorized the
President ``to use all necessary and appropriate 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.'' The resolution was unique in authorizing military
force for the first time against non-state actors such as
organizations and persons. The next year, in response to what
the President deemed a significant threat, Congress enacted the
Authorization for Use of Military Force Against Iraq Resolution
of 2002 (Public Law 107-243) (2002 Iraq AUMF). The resolution
authorized the President to use necessary and appropriate force
to defend the national security of the United States against
the threat posed by Iraq and enforce United Nations Security
Council resolutions regarding Iraq. On May 21, 2014,
administration witnesses testified before the committee that
the administration supports the repeal of the 2002 Iraq AUMF
due to the cessation of U.S. combat operations in Iraq.
On November 5, 2014, the President indicated at a press
conference his intent to work with Congress to pass a new
authorization for the use of military force for the
contributions of U.S. Armed Forces to the international anti-
ISIL coalition. On December 9, 2014, Secretary of State John
Kerry testified before the committee regarding the threat posed
by ISIL and the Chairman's draft joint resolution to authorize
the use of the United States Armed Forces against ISIL. In his
testimony, in addition to outlining the threat posed by ISIL
and commenting on the Chairman's draft joint resolution,
Secretary Kerry cited the 2001 Al-Qaeda AUMF and the 2002 Iraq
AUMF as providing the President legal authority to pursue U.S.
military operations against ISIL.
III. COMMITTEE ACTION
On December 11, 2014, the committee considered the
Chairman's joint resolution and reported it favorably by a roll
call vote of 10-8. Senators Menendez, Boxer, Cardin, Shaheen,
Coons, Durbin, Udall, Murphy, Kaine, and Markey voted in favor.
Senators Corker, Risch, Rubio, Johnson, Flake, McCain,
Barrasso, and Paul voted against.
The committee took the following action with regard to
amendments:
The Chairman offered a Manager's Amendment, which
incorporated language from a number of amendments to the
Chairman's text that Members had filed, including language
addressing horrific abuses by ISIL against women and girls;
language making clear the importance of finding a way to pay
for the activities being authorized; and language to sunset the
2001 Al-Qaeda AUMF after a period of 3 years from enactment,
unless reauthorized. The Manager's Amendment was adopted by a
vote of 11-7. Senators Menendez, Boxer, Cardin, Shaheen, Coons,
Durbin, Udall, Murphy, Kaine, Markey, and Paul voted in favor.
Senators Corker, Risch, Rubio, Johnson, Flake, McCain, and
Barrasso voted against. In addition, Senator Udall offered an
amendment to change the duration of the authorization in the
resolution from 3 years to 1 year. The amendment failed by a
vote of 6-12, with Senators Boxer, Durbin, Udall, Murphy,
Markey, and Paul voting in favor; and Senators Menendez,
Cardin, Shaheen, Coons, Kaine, Corker, Risch, Rubio, Johnson,
Flake, McCain, and Barrasso voting against. In addition,
Senator Paul offered an amendment to limit the authorization
geographically to Iraq and Syria only. The amendment failed by
a vote of 5-13, with Senators Udall, Murphy, Kaine, Markey, and
Paul voting in favor; and Senators Menendez, Boxer, Cardin,
Shaheen, Coons, Durbin, Corker, Risch, Rubio, Johnson, Flake,
McCain, and Barrasso voting against.
IV. DISCUSSION
At the business meeting to consider the joint resolution,
members of the committee expressed a common view that ISIL
poses a threat to United States interests and to the United
States' allies in the region. There was a robust discussion of
the respective responsibilities of the President and the
Congress under the United States Constitution regarding the use
of force by the United States Armed Forces.
Members expressed a range of views on whether and how a
Congressional authorization for use of military force should be
limited in duration and scope. Several Members expressed the
view that the President's claim of reliance upon the legal
authorities of the 2001 Al-Qaeda AUMF against a group that had
been disavowed by the leadership of that terrorist group to be
an insufficient legal basis to conduct the current military
operations in Iraq and especially Syria. For a multi-year
effort to degrade and destroy ISIL, Members generally felt that
a new authorization for the use of military force was required.
The committee views the link between the purposes and
intents of the 2001 Al-Qaeda AUMF and the 2002 Iraq AUMF, on
the one hand, and the current need for military actions against
ISIL, on the other hand, as highly attenuated. In addition,
while the 2001 Al-Qaeda AUMF has served the United States well
by providing the legal authority to pursue and dismantle Al
Qaeda and its associated forces, it is the view of the
committee that the 2001 AUMF should be re-examined within 3
years and, depending on the results of that re-examination, be
either refined and re-authorized or else allowed to lapse.
Members also expressed a range of views on the issue of the
limitation on the President's authority to introduce U.S.
ground troops for the purpose of direct combat with ISIL
forces. The President has expressed on a number of occasions
that he will not deploy ground troops to Iraq for that purpose.
A majority of the committee believes that this limitation
should be enshrined in the authorization for use of military
force itself, with appropriate exceptions as outlined in the
joint resolution. The committee is of the view that, based on
current circumstances and the President's own statements, the
United States should not deploy U.S. soldiers to fight on the
ground in Iraq or Syria for a large-scale ground combat
operation. The committee is of the view that if the President
decides that a large-scale United States ground combat force is
needed to defeat ISIL, then the President should come back to
the Congress for that authorization so that Congress can
consider the issue and come to a decision about whether and how
use of force authorities need to be modified to accomplish the
mission. The committee is of the view that under the current
circumstances, sending a large-scale United States ground
combat force into the region could very well ``Americanize''
the war against ISIL, transforming it from a conflict that
Iraqis and others in the region should fight on the ground, to
what ISIL would characterize as a fight against Western
occupiers in the region, further destabilizing the region.
A section-by-section discussion of the committee's joint
resolution follows:
The preambular clauses of the joint resolution outline the
threat posed by ISIL, actions already taken by the United
States Government to counter the threat including United States
and Coalition airstrikes, and a statement by the President
regarding his commitment to working with Congress to pass an
authorization for the use of military force for the anti-ISIL
military campaign.
Section 1
Section 1 names the committee's joint resolution as the
``Authorization for the Use of Military Force against the
Islamic State of Iraq and the Levant.''
Section 2
Section 2(a) authorizes the President to use the Armed
Forces of the United States as the President determines to be
necessary and appropriate against the Islamic State of Iraq and
the Levant, or associated persons or forces. Section 2(b)(1) is
intended to constitute specific statutory authorization within
the meaning of sections 8(a)(1) and 5(b) of the War Powers
Resolution (WPR) (50 U.S.C. 1544(b)). Section 2(b)(2) affirms
that nothing in the committee's joint resolution supersedes any
of the requirements of the War Powers Resolution. Section 2(c)
limits the authorization of military force in Section 2(a) by
proscribing the use of the United States Armed Forces for the
purpose of ground combat operations, except as necessary (1)
for the protection or rescue of members of the United States
Armed Forces or United States citizens from imminent danger
posed by ISIL; or (2) to conduct missions not intended to
result in ground combat operations by United States forces,
such as intelligence collection and sharing; enabling kinetic
strikes; operational planning; or other forms of advice and
assistance to forces fighting ISIL in Iraq or Syria.
Section 3
Section 3 specifies that the duration of the authorization
for the use of military force is 3 years from the date that
this joint resolution is enacted into law, unless reauthorized.
Section 4
Section 4(a) requires that the President report to the
Congress on specific actions taken pursuant to the
authorization. These reports must be made at least once every
60 days so long as the authorization remains in effect.
Section 4(b) requires the President, no later than 30 days
after enactment of the joint resolution, to submit to Congress
an unclassified report (which may include a classified annex)
on the comprehensive strategy of the United States in Iraq and
Syria, including all activities authorized by the joint
resolution.
Section 5
Section 5 provides a definition of the phrase ``associated
persons or forces'' for purposes of action authorized to be
taken under the joint resolution, meaning individuals and
organizations fighting for or on behalf of the Islamic State of
Iraq and the Levant or a closely-related successor entity.
Section 6
Section 6 provides that the provisions of the joint
resolution pertaining to the authorization of use of force
against the Islamic State of Iraq and the Levant shall
supersede any preceding authorization for the use of military
force.
Section 7
Section 7 repeals the 2002 Iraq AUMF.
Section 8
Section 8 provides that the 2001 Al-Qaeda AUMF shall
terminate on the date that is 3 years after the date of the
enactment of the joint resolution, unless reauthorized.
V. COST ESTIMATE
Rule XXVI, paragraph 11(a) of the Standing Rules of the
Senate requires that committee reports on bills or joint
resolutions contain a cost estimate for such legislation. To
date, the committee has not received the Congressional Budget
Office cost estimate. The estimate will be printed in either a
supplemental report or the Congressional Record when it is
available.
VI. EVALUATION OF REGULATORY IMPACT
Pursuant to rule XXVI, paragraph 11(b) of the Standing
Rules of the Senate, the committee has determined that there is
no regulatory impact as a result of this legislation.
VII. CHANGES IN EXISTING LAW
In compliance with rule XXVI, paragraph 12 of the Standing
Rules of the Senate, the committee has determined that there is
no change to existing law made by the bill, as reported.
VIII. MINORITY VIEWS
MINORITY VIEWS OF SENATORS CORKER, RISCH, RUBIO, JOHNSON, AND McCAIN
The Committee's reporting of this proposed authorization to
the Senate--on a straight party-line vote, in the last days of
the 113th Congress, when it is clear that there is no
possibility of it being enacted into law--is disappointing.
Beginning a process--particularly one as important as
authorizing the use of military force--at a time and under
circumstances in which it has no chance of being successfully
completed, has the potential of sending the wrong message to
our allies and enemies around the world.
The Committee is acting absent a specific request from the
President. While we would not rule out Congress acting without
a specific presidential request, it is the historic norm that
the Commander in Chief would make such an ask. The Committee is
also acting without a full account of the Commander in Chief's
views on the nature and scope of an authorization. It is doing
so without any testimony on its proposed authorization--in open
or classified session--from the Department of Defense, the key
agency the President has tasked with carrying out this
conflict, and without taking into account the testimony the
Committee did hear from the Secretary of State on the proposed
authorization.
While the Committee finds itself in this position in part
because of a lack of presidential leadership, it is very
evident that the administration does not want to discuss this
issue in public because it cannot today lay out a plausible
strategy to achieve its stated goals. As a result, the
President has not formally requested an authorization for the
use of force nor has he submitted a proposed draft text. The
administration has further refused to make witnesses available
to the Committee--despite bipartisan requests to do so--and has
made no effort to build bipartisan support for any
authorization or to provide specific details on what text the
President would actively seek to get passed through Congress.
In essence, the President has failed to provide Congress with a
serious, convincing, and clear direction that could credibly
lead to success on the stated goal of degrading and ultimately
defeating ISIS.
There are serious, bipartisan concerns--and concerns from
key regional partners whose participation is essential--with
respect to the President's current approach to this conflict.
In particular, members of Congress and our partners around the
world are concerned about the President's failure to deal with
the many complexities and competing forces in Syria where ISIS
makes its home. We do acknowledge the difficulties presented by
the situation in Syria, and hope that in the coming days the
administration will be in a better position to give more
clarity to their approach. Key policy decisions have not yet
been made. Most notably, the administration does not have a
realistic plan to build and protect a partner force in Syria in
a reasonable timeframe, nor has it offered any other
alternative on the ground, and there is great uncertainty
regarding the President's policy toward Syrian President Bashar
al-Asad. The lack of a clear direction in Syria could lead to
an incremental decision-making process and an unsuccessful
outcome, as such an approach has in the past.
Further, it is our view that, based on the public
discussion, some members of the majority, while stating that
their purpose is to give the President the necessary legal
authorization for ongoing efforts against ISIS, have a greater
desire in this process to express their view on the record that
U.S. ground troops be prohibited in the conflict. A better way
of expressing that view, at this stage--prior to substantive
testimony from key agencies in the Executive Branch--would have
been to send a joint letter to the President.
Secretary Kerry's testimony before the Committee on
December 9, 2014 also revealed significant differences between
the administration's view of an appropriate authorization and
the proposed legislation being reported to the floor today by
the Committee's majority. For example, Secretary Kerry
explicitly rejected the restrictions on the use of ground
forces proposed by the majority, noting that they would
``preemptively bind the hands of the Commander in Chief--or our
commanders in the field--in responding to scenarios and
contingencies that are impossible to foresee.'' Secretary Kerry
further testified that any time limit on an authorization--like
the one proposed by the majority--needs to provide flexibility
for extensions and noted that the majority's definition of the
phrase ``associated forces'' did not provide the President with
the authority needed to effectively prosecute the current
conflict.
However, just two days after this testimony, the majority
of this Committee voted to approve legislation that contained
no modifications whatsoever on any of these issues. And one day
after the Committee's action, the White House Press Secretary
stated that the majority's proposed authorization contains
``concerning language that would limit the flexibility of the
Commander in Chief to deploy a military strategy in the
situation'' and that the majority's proposed restrictions on
presidential authority to fight the conflict with ISIS ``did
not fall within the category of reasonable limitations that
[the White House] could support.''
It is this very legislation--flatly inconsistent with the
Secretary of State's description of the administration's
minimum needs and openly criticized by the White House--that is
being reported to the floor by the majority today.
Finally, it is important to also note a few additional
issues with respect to the majority's proposed authorization
and the report accompanying the legislative text. The proposed
authorization contains a provision that would terminate in
three years the 2001 Authorization for the Use of Military
Force passed by Congress in the aftermath of the 9/11 attacks.
While there is much debate about the need for Congress to take
a new look at that authority, simply terminating the authority
on a date certain without any notion, debate, or discussion of
what might follow and without appropriate procedures for a
transition of authorities--as the majority proposes--is
questionable. The majority's report accompanying the
legislative text also contains certain factual and analytical
inaccuracies regarding the historical record on authorizations
for the use of force and refers to the views of the committee
in contexts where it should be clear that there is much ongoing
debate. As such, significant portions of the majority's report
only reflect the views of some members of the Committee.
In the end, it is unfortunate that this Committee's work in
the 113th Congress--which has been largely bipartisan to this
point--ends on this note. It is our sincere hope that the next
Congress will bring an opportunity to build a common
understanding of the challenges facing our nation and a strong,
bipartisan path forward on efforts to confront them. The
minority--recognizing the significant gaps in the Committee's
consideration of this authorization--decided to proceed in
manner that leaves open a way forward for a better process in
the next Congress, only days away, one in which the
administration can clarify its direction for the long fight
against ISIS, particularly in Syria. As we continue this effort
not against defined nation-states but against terrorist groups
and armies, we are presented with novel challenges. As a
result, the authorities and tools our nation needs to succeed
may differ from those of past conflicts. It is for this reason
that a detailed understanding of the administration's direction
in this regard is a necessary component of the Committee's
oversight responsibility, particularly in this most grave and
serious of issues.
MINORITY VIEWS--SENATOR FLAKE
AUTHORIZATION FOR THE USE OF MILITARY FORCE AGAINST ISIL
December 13, 2014
A joint resolution to authorize the use of military force
(AUMF) is perhaps the most important piece of legislation the
Committee can consider. Since September, the United States has
led a multi-nation coalition to achieve the President's stated
objective to ``degrade and ultimately destroy'' ISIL. The
President has not formally asked Congress to authorize this
mission, as is traditional, but he has asked Congress to
appropriate funds for it. In the absence of a formal request
from the President, I believe Congress should act to authorize
the use of military force against ISIL. Such an authorization
would signal to our coalition partners that Congress supports
the President in his objectives and that the United States, not
just the President, is committed to supporting this mission. In
this context, I applaud the Chairman for taking the initiative
to draft a joint resolution to authorize the use of military
force against ISIL in the absence of a formal request from the
administration.
While the administration has yet to provide the Committee
with proposed text for a joint resolution, the Committee heard
testimony from the Secretary of State regarding what the
administration would like to include, and not include, in such
a joint resolution. Despite the Secretary testifying that the
administration does not want a limitation on the use of combat
forces in this conflict, the legislation approved by the
Committee includes such a limitation. The President has said he
will not deploy combat forces but as Commander-in-Chief he may
change his mind as conditions warrant. I am concerned that
limiting the use of military options from the outset could make
it more difficult to achieve the stated objectives of degrading
and ultimately destroying ISIL, which is the purpose of this
authorization.
I am likewise concerned that approval of this joint
resolution to authorize the limited use of military force
against ISIL will further damage this Committee's credibility.
This is the second AUMF the Committee has favorably reported in
the 113th Congress. The previous AUMF to authorize airstrikes
in Syria never received further consideration beyond this
Committee, either on the Senate floor, or by the other chamber.
This AUMF will suffer the same fate. Those who might be
watching the Committee's proceedings from afar may be left
wondering whether this Committee means what it says. They may
also question the relevance of the Committee if the
authorizations for the use of military force that it approves
simply languish. This could lead to disastrous consequences. We
need to consider these authorizations in such a way so as to
ensure they keep their meaning. If we do not, our allies--and
our adversaries--will not believe in their meaning, either.
This Committee should work with the administration in the 114th
Congress to craft a joint resolution that will demonstrate the
resolve of the United States to degrade and ultimately destroy
ISIL.