The war against the Islamic State takes one step closer to being legal

On Thursday, the Senate Foreign Relations Committee took a step in a direction the White House hoped they would not take. By a vote of 10 to eight, the committee voted to approve a new authorization to use military force against the Islamic State.

In an increasingly frequent occurrence, it was the committee’s Democrats which took the lead in opposing the White House’s priority. All of the committee’s Republicans voted against the circumspect bill authorizing force against ISIS while the committee’s 10 Democratic members all voted in favor of the measure which was principally sponsored by outgoing committee Chairman Sen. Bob Menendez (D-NJ).

“The authorization would be limited to three years and would require the administration to report on the fight against IS every 60 days,” Fox News reported. “[Menendez] said a three-year time limit would allow Obama and the next president time to assess the situation and make decisions about whether and how to continue military action against IS.”

The authorization would not allow ground combat operations, except as necessary to protect or rescue U.S. soldiers or citizens, conduct intelligence operations, spotters to help with airstrikes, operational planning or other forms of advice and assistance.

This week, Secretary of State John Kerry testified before that committee in opposition to the passage of a new authorization to use force. The White House has consistently maintained that the 2001 AUMF authorizing the use of force against all groups responsible for the 9/11 terrorist attacks conveys sufficient legal authority to execute strikes against ISIS.

“Let me be crystal clear: We didn’t start this,” Kerry said. “We’re not about to start a third war.”

“Osama bin Laden started this in 9/11/2001, and he has continued it in abstentia, obviously, though what al-Qaeda does,” he continued. “ISIL — Daesh – is an extension of al-Qaeda. It’s part of the same thing.”

In September, Kerry had suggested that the White House would welcome amendments to the 2001 AUMF which would broaden its scope to include ISIS, but also maintained that the administration believed they had all the legal authority required to strike ISIS in Iraq and Syria. The secretary of state clarified this week that the White House opposes a resolution which limits their freedom of action to Syria and Iraq or one which has a sunset on that authority to act.

The new authorization is unlikely to be considered for a full vote in the Senate before next year, when the Congress will be dominated by Republican members. It is unclear if Republicans will support the present resolution which limits the White House’s ability to act against ISIS or if they would seek to draft a new AUMF in committee. Given the incoming SFRC chairman’s opposition to the language in this AUMF, the latter is the likelier outcome.

It was not long ago that the Democrat-led Senate Foreign Relations Committee passed another resolution authorizing force upon the request of the White House, only the target at the time was Syria’s President Bashar al-Assad. In September of 2013, the Senate committee passed a new AUMF for action in Syria, but that resolution never saw a full vote in the Senate. With the GOP set to take control of the chamber in January, it is a safe bet that this new AUMF against ISIS will also never enjoy a full vote in the upper chamber.