General Dempsey’s Position on an AUMF for ISIL: The Good, the Bad, and the Confusing

Chairman of the Joint Chiefs of Staff, Army Gen. Martin E. Dempsey gave his views of what a congressional authorization for the use of force against ISIL should contain, in an interview posted on the the DoD’s website. At bottom, Gen. Dempsey states that he would recommend a highly open-ended authorization by Congress with seemingly no limits—for example, no restrictions on geography, on time (sunset clauses), and on the use of ground troops. By rejecting any constraints that Congress might wish to include with its authorization, Gen. Dempsey’s position runs counter to the suggestions of many outside experts including a consensus reached in the Principles published here at Just Security and a proposed AUMF published over at Lawfare.

As I discuss below, his views also appear to run counter to others in the administration (especially with reference to a sunset clause). Gen. Dempsey was careful to say that he was expressing his own views—“my recommendation as the senior military leader.”

1. The Good

Gen. Dempsey apparently accepts that the military should receive an authorization from Congress to fight ISIL. He said, “the authorization should be there.” Shalev Roisman and I previously explained why the administration’s theory that the 2001 AUMF covers ISIL is difficult to sustain; and Jen Daskal, Steve Vladeck, and I explained why the 2002 AUMF also provides no basis for operations against this enemy. It is thus encouraging that Gen. Dempsey recognizes that the administration should obtain a new authorization.

Gen. Dempsey’s statements also suggest that the AUMF should be ISIL specific. All of his comments appear to be predicated on such a focus, and he would presumably have made explicit his disagreement, if any, with that highly common approach to the design of a new AUMF.

2. The Bad

What is Gen. Dempsey’s limiting principle? His statements suggest that Congress should essentially just legislate that the administration can use force whenever, wherever, and however the President wants to defeat or degrade ISIL. This is especially worrisome since nobody can predict who will be the next President, his or her Defense Secretary, etc. Congress would be placing untold military power in the hands of an unknown.

Also, regardless of who occupies the Oval Office next, surely we have all learned from the experience of the 2001 AUMF that what Congress intends at the time of passing such an authorization can be followed by a radical change of events including the countries directly affected by US military operations and new enemies that  come into existence. A sunset clause is not a device for terminating such military operations. It is a device for ensuring that the people’s representatives in Congress will have an opportunity to reevaluate the need for such force and to ensure new invocations of existing authorities accord with their intentions.  If the President—whoever he or she is at the time—shows that the continuation or expansion of force is needed for our country’s national security, surely Congress will provide it.

Finally, Gen. Dempsey’s suggestion that the military needs maximum flexibility to succeed is inconsistent with the history of congressional authorizations—including the large percentage of AUMFs with geographic restrictions. As I have discussed before, “since the birth of the Republic, Congress has regulated Presidential actions by prescribing the means and modes of warfare once the armed conflict has begun.”

These are our democratic traditions, and they have generally made us stronger.

3. The Confusing

Is Gen. Dempsey’s interview a trial balloon by the administration, the military trying to “box in” the President as Bob Woodward suggested occurred in Obama’s Wars, or something else? It is notable that Sec. Kerry already largely endorsed, with some caveats, the AUMF approved by the Senate Foreign Relations Committee last December including its sunset clause. Although Sec. Kerry opposed strict limits on ground combat forces, he did say that the administration could accept language stating that the congressional authorization includes “no enduring combat operation.”

Gen. Dempsey doesn’t even appear to accept that middle ground. He is essentially asking for everything by saying, “I think in the crafting of the AUMF, all options should be on the table, and then we can debate whether we want to use them,” and he added, “It would always be my recommendation as the senior military leader to keep our options open as long and as wide as possible — whether [or not] we ever use them, it’s important to have them.”

Notably, Gen. Dempsey’s reference to a sunset clause perhaps left greater room for accommodation. He said: “Constraints on time, or a ‘sunset clause,‘ I just don’t think it’s necessary.” That statement—”I just don’t think it is necessary”—is different from challenging such a clause as especially detrimental. Nevertheless, it is still a strong statement from the chairman.

4. Toward a sliding-scale?

Finally, one aspect that is missing from Gen. Dempsey’s remarks is any discussion of transparency and reporting (see, e.g., section 6 of the Principles). His remarks, however, suggest one way to approach the next round of discussions on the proper design of such reporting procedures (see Andy Wright’s excellent analysis of this topic). The more open-ended the AUMF in substance, the more reason to ratchet up the reporting requirements—to ensure that Congress and the public are aware of actions that the administration is taking in their name. An open-ended mandate is also another very good reason for a sunset clause.

  

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.