[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.