Senate Foreign Relations Committee Approves ISIL AUMF and Sunset of 2001 AUMF | Just Security - 0 views
-
On Thursday, the Senate Foreign Relations Committee approved a draft authorization for the use of military force (AUMF) against ISIL (full text) by a margin of 10-8 along party lines. The text also includes an amendment that would sunset the 2001 AUMF in three-years. Most of today’s news headlines will be focused on the authorization to fight ISIL—and we will have plenty of discussion about it at Just Security. But the sunset of the 2001 AUMF is highly significant in its own right – and it should be welcome news to a wide range of national security law experts across the political spectrum, as Jack Goldsmith, Steve Vladeck, and I discussed in an Op-Ed in the Washington Post. (Indeed, a sunset of the 2001 AUMF is endorsed by the Principles for drafting an ISIL AUMF published at Just Security and a proposed AUMF published at Lawfare.)
-
The action on the 2001 sunset was a bit of a surprise because Sen. Menendez’s draft ISIL AUMF did not originally include a provision to sunset the 2001 AUMF. Nor did Sen. Tim Kaine’s similar draft AUMF. Both Senators Menendez and Kaine, however, spoke strongly in favor of the amendment today (and I applaud them for that). The action on the 2001 AUMF is significant as a potential turning point in the armed conflict with Al Qaeda. In his National Defense University speech in May 2013, President Obama called for refining and eventually repealing the 2001 AUMF when conditions permit. He stated: “I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the [2001] AUMF’s mandate.” Placing a sunset on the 2001 AUMF has been a key plank in Harold Koh’s position, in testimony and in Just Security posts (here and here), outlining how the President can bring an eventual end to the “Forever War.” Another part of that roadmap includes disengaging from Afghanistan. It is notable that today’s decision on the 2001 sunset also comes on the heels of yesterday’s news of the closure of the detention facility at the Bagram Airfield in Afghanistan. At least these aspects of the armed conflict with Al Qaeda and the Taliban may be winding down or narrowing, albeit while the conflict with ISIL heats up.
-
Increase transparency. Neither Congress nor the American public has a clear idea whom the United States is fighting or where, especially when it comes to forces associated with al-Qaeda. Any new AUMF should require the president to identify the groups against which force is used, along with related details, regularly in a report to Congress and, unless strictly required by national security, the American people. The president should also share with Congress, and the public to the extent possible, the administration’s legal rationales for using force. Such transparency rules should also be imposed on the 2001 AUMF … Congress should also consider imposing these transparency requirements on uses of force against terrorists under the president’s Article II powers. 3) Geographic limits on ISIL AUMF Sen. Rand Paul proposed an amendment to limit the ISIL AUMF so that the authorization to use force does not apply “outside of the geographic boundaries of Iraq and Syria.” He explained that if ISIL moves some of its forces outside of Iraq and Syria, the administration could return to Congress for additional authorities. That amendment was defeated in a separate vote. With a group of seven other national security law experts, I have supported geographic limits on an ISIL AUMF, but not as restrictive as the limits that Sen. Paul proposes. Our set of Principles recommend Congress to authorize force in Iraq and Syria as well as “any other locations from which ISIL forces actively plan and/or launch attacks against the United States or Iraq.” As Sen. Paul noted, a recent study found that 60 percent of congressional force authorizations have contained geographic limitations.
- ...2 more annotations...