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.)
1. ISIL AUMF: The state of play
Before saying more about the 2001 sunset, a few words about the state of play for the ISIL AUMF in general … Many of the Republican Senators who opposed the ISIL AUMF appear poised to approve such an AUMF in the 114th Congress, but they were concerned about restrictions in the draft that was approved today, (e.g., limits on ground combat forces) and they raised concerns that the White House has neither provided a specific plan for defeating or degrading ISIL nor offered its own draft proposal.
The latter concern—lack of a draft AUMF from the White House—has become much weaker, one would think, since the administration recently set forth five key positions on what it wants in an AUMF and has otherwise suggested that, as long as those positions are met, the White House supports the draft of the Committee Chairman Sen. Bob Menendez (see Sec. Kerry’s response to Sen. Marco Rubio). The Menendez draft AUMF is essentially the text adopted today.
Where does the administration stand on the sticking point of ground combat forces? In his testimony before the Committee earlier this week, Sec. Kerry stated that the administration prefers no congressional limits on ground combat forces–and thus opposes those parts of the current text. However, Kerry also said, in his exchanges with Committee members during the hearing, that the administration was open to some accommodation such as language that states that the congressional authorization includes “no enduring combat operation.”
2. Sunset of the 2001 AUMF
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  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.
Three points deserve special mention:
1) A caveat: “revise” not “repeal”
Senators who spoke during the Committee’s meeting in favor of the amendment to sunset the 2001 AUMF did not describe the provision as an opportunity to repeal the AUMF but to “refine,” “reevaluate,” or reconsider it three years from now.
2. A missed opportunity for transparency?
The ISIL AUMF includes a robust set of transparency and reporting requirements. This is good news. But, while we are in the business of applying such reporting requirements to the fight with ISIL, what’s the possible justification for not applying them to the fight with Al-Qaeda as well? As Jack Goldsmith, Steve Vladeck and I wrote in our Op-Ed (emphasis added):
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.
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Although Congress will likely not vote on today’s initiative before the end of the current term, there is no mistaking today’s historically significant moment with respect to both the limit on the 2001 AUMF and the authority to use force against ISIL more broadly. Today’s approval of the draft ISIL AUMF places an important marker for discussions in the 114th Congress.