There is still much to be said about the draft or working language President Obama presented to Congress for authorization to use force against the Islamic State group two weeks ago. One of the most ironic headlines surrounding congressional reaction to the president’s AUMF is that both Democrats and Republicans reject it for totally opposite reasons. The key parameter concerns how limited a new Islamic State group AMUF should be – for many Democrats, the draft is too broad while Republicans believe it restrains the president as well as the military.
A main point of contention among both parties, as well as the larger debate concerning the 2001 AUMF, is a sunset provision. In the president’s draft, a three year limit is placed after the date the authorization is enacted. This means that Congress will have to re-authorize operations, considering operations against the Islamic State group, a successor group, or Islamic State group-aligned militants are ongoing, or operations would be terminated – provided a future president is not relying on other authorities such as the Constitution’s Article II powers.
Several hawkish members of Congress and the punditry believe a sunset provision is unnecessary and restrains the president too much. For example, there was no sunset provision in the 2001 AUMF that authorized the war in Afghanistan against al-Qaeda and the Taliban or the 2002 AUMF that authorized the Iraq War. “It is unwise to impose a three year time limit on operations against ISIS, since it enables the enemy to try to wait us out. If we are serious about defeating ISIS, we should not impose arbitrary time limits on the task,” wrote Ilya Somin, law professor at George Mason University using another acronym to describe the militant group.
Conversely, those on the opposite side of the debate contend a sunset provision applied both to an Islamic State group AUMF and retroactively to the 2001 AUMF (the president’s draft sunsets the 2002 AUMF) provide for greater democratic accountability. Several prominent legal scholars, in a letter to President Obama days prior to the release of his Islamic State group AUMF, urge the president to include a sunset for the 2001 AUMF. “The 2001 AUMF is already the longest-running use-of-force authorization in history. That statute was directed toward the groups responsible for the 9/11 attacks (al Qaeda and the Taliban), but it has since provided the authority for the use of force against groups with remote connection to 9/11, in places far removed from Afghanistan—such as Iraq, Somalia, Syria, and Yemen,” the letter read. “If, as you warned at the [National Defense University], the American people are to avoid the distorting effects of perpetual war, Congress and the American people should be prompted to periodically revisit, and reapprove if necessary, ongoing use-of-force authorizations.”
Furthermore, Harvard law professor Jack Goldsmith indicated that, contrary to popular rhetoric, “[A] sunset clause would not, as some think, signal that the war will end in three years or that Congress lacks resolve beyond then. As I once explained: The successful sunset clauses in the surveillance context have not signaled to anyone that Congress lacks the resolve for aggressive U.S. surveillance past the sunset date.” In the name of democratic accountability, Professor Goldsmith, and others, continued that including sunsets force presidents to revisit issues and explain to Congress on and ongoing basis their strategy toward their operations. With the 2001 AUMF, President Obama has been able to broadly interpret the language to apply to myriad groups the law’s original ratifies did not even imagine – and he has done so unchecked.
The sunset debate also brings forward another interesting constitutional conundrum that its framers did not clearly address – how to conclude wars or conflicts. The greatest fear for more hawkish folks is if the president is forced to withdraw troops because his statutory authority to wage the conflict has run out and Congress has not renewed it. As Professor Somin wrote, if Congress excludes the three year sunset, “nothing prevents President Obama or a successor from withdrawing US forces after three years, or even sooner, if he believes that is the best strategic option. Eliminating the three year deadline merely prevents him from being forced to withdraw, regardless of conditions on the ground.”
However, without a sunset or a repeal of dormant conflict authorizations, they can be used in the future beyond their original intention. The Obama administration had concluded the Iraq War in 2011 with the withdrawal of all troops, which would render the 2002 Iraq War AUMF void. However, the administration has since used the authorization for legal cover against the Islamic State group in Iraq. In short, the 2002 AUMF authorized the president to use force in order to “(1) defend the national security of the United States against the continuing threat posed by Iraq (emphasis mine); and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq.” Some legal minds have interpreted the “continuing threat posed by Iraq” provision not to be finite, but rather meaning exactly what is says – thus, given the threat the Islamic State group posed and still poses in Iraq, the law is applicable – a highly specious legal rationale.
Similarly, President Obama has concluded combat operations in Afghanistan, but American forces continue to serve in a train and assist role. If, and when, U.S. troops officially withdraw completely from Afghanistan, will/should that render the 2001 AUMF void? Given that it authorizes counterterror operations against al-Qaeda (who continues to threaten the security of the United States), many would be wary to surrender such a power.
The examples of the cessation of hostilities in Iraq and Afghanistan in the future beg the question, how are conflicts officially drawn to a close? Unfortunately the Constitution is virtually silent on this issue. Special counsel to the General Counsel for the Department of Defense, David Simon, described in a paper for the “Pepperdine Law Review” that previous wars and conflicts were concluded through a peace treaty. “Before World War II, congressional approval of formal peace treaties was the standard practice for major wars. Since 1945, however, as the United States has engaged in more frequent military operations of limited duration and amounting to hostilities below the threshold of war, presidents have ended wars unilaterally—often without any formal legal termination agreement.” Simon noted that U.S. involvement in World War I was authorized by Congress and concluded via a multi-step peace process. However, such peace processes do not occur anymore. In fact, Congress authorized the president to expel “Iraq from Kuwait, as opposed to a full invasion of Iraq to overthrow the Hussein regime” and when President George H.W. Bush declared the end of the U.S. role, “[a]t no point was Congress involved in establishing peace.” To make matters more confusing, Simon contends, “the Constitution did not grant either branch complete power over war and peace, and the unilateral arrogation of such a power by either branch for political expediency necessarily diminishes the constitutional role of the other branch as a partner in government.”
The inclusion of sunset provisions are designed to spur more democratic accountability. President Obama has already been operating against the Islamic State group for six months on old legal authorities and “loopholes” in the War Powers Resolution. Regardless of who resides at 1600 Pennsylvania Ave., power will always be expanded and exploited if left unchecked. Both sides of the sunset argument pose relevant and important distinctions but the broader issue of “perpetual” war conflated with no clear process for conflict conclusion demands a robust debate. To be fair, despite all the criticism the president’s Islamic State group draft AUMF has received, Congress still must pass a bill, of which they already have a few proposals from which to work – not to mention the fact they got what they wanted – “draft language” from the administration to work with and to provide a direction. Here’s to having the debate.