Principles to Guide Congressional Authorization of the Continued Use of Force Against ISIL—Clarification on Sunset Provision

On Monday, a group of eight legal experts, including some Just Security editors and some not, released a document entitled, “Principles to Guide Congressional Authorization of the Continued Use of Force Against ISIL.” The purpose of the document is to help guide Congress and the Executive in drafting a pragmatic and principled force authorization. (See also our explainer.)

Coincidentally on the same day, a group of legal experts, all of whom are editors at Lawfare, published a proposed “draft AUMF” with the same purpose in mind. Remarkably, the two sets of proposals are very similar.

Over at Lawfare, Ben Wittes then raised a series of concerns about our Principles. But as became quickly apparent through a conversation we had over Twitter (here and here) and Steve’s reply to Ben (“Ben’s Sweeping Endorsement of the Just Security AUMF Principles”), Ben’s concerns were largely predicated on a misunderstanding of a provision in the Principles. We proposed to sunset the 2001 AUMF so that it would expire during the next presidential administration and next (115th) Congress. This was not clear to Ben. And Ben gracefully acknowledged (here and here) that his main concerns are no longer valid if that is our sunset proposal, because in fact his own proposed “draft AUMF” uses essentially the same timeline to sunset the same authorities.

We thought, so that nobody else makes the same mistake, to update the Principles so that they state more clearly that the intent is to sunset during the next administration and the 115th Congress (Principle 4). 

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About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).