More than six months after American bombs started falling in Iraq and Syria, President Barack Obama has finally submitted his proposal for authorizing the military campaign targeting the Islamic State of Iraq and the Levant, or ISIL. Regardless of the relative value of adopting an Authorization for the Use of Military Force (AUMF) well after the conflict has begun, the President’s proposal adopts some limits on the use of ground forces and imposes a three year time duration on the military authorities. While much ink will be spilled over the impact of the ground force limitation, many advocates concerned by the endless nature of the 14-year old war against al Qaeda have seized on the sunset clause in today’s AUMF as a clear victory. However, a sunset clause on its own is extremely unlikely to have the desired affect of bringing an end to “the forever war.”
The fight against al Qaeda that was authorized by the 2001 AUMF is already the longest war and war authorization in American history. Even though that conflict is almost halfway through its second decade, Sen. Lindsey Graham (R-S.C.) said recently that we are only at the beginning of that war. Concern about establishing a state of permanent war is extremely justified. Even President Obama has warned of just such an eventuality, when he decried the “perpetual war footing” created by the 2001 AUMF. Adopting a sunset clause, in either this AUMF targeting ISIL or the 2001 AUMF would appear a reasonable way to shift these war authorizations from endless to time limited.
There is value in a sunset clause, especially given how Congress has refused to perform even its most basic responsibilities unless forced to do so by a looming deadline. But the recent track record of sunset clauses in national security legislation is extremely worrying from the perspective of ending authorities. Sunsets were a popular addition for many provisions in the Patriot Act, but in practice they have not prevented the reauthorization of those authorities. Additionally, the reauthorization process has sometimes made the law worse, such as when Congress approved an extension of Section 215 of the Patriot Act that the Obama administration viewed as endorsing its then-secret interpretation of the scope of that provision.
What is missing entirely from this debate is any discussion of when it would be appropriate to actually end the military phase of the conflict, not just the legal authorities that support it – this question applies to both the new engagement against ISIL and the original war against al Qaeda. President Obama does not mention this in either the preamble to or the letter he sent Congress along with his AUMF proposal. The operative language of the AUMF calls for using force to “defeat” ISIL. That is a shift from the President’s original formulation of “destroy[ing]” the terrorist group. But the question remains what does it mean to defeat ISIL?
This is not a problem that exists in most traditional military conflicts. We know what the end of a war looks like, it’s a peace conference or treaty, an armistice, or a withdrawal of fighting forces. Those clear endpoints simply do not exist in a conflict with transnational non-state actors like terrorist organizations. And the total absence of any debate—let alone consensus—about just what is the end of the fight against al Qaeda or ISIL contributes to the sense that these conflicts are endless. It also makes it a virtual certainty that a sunset clause that selects an arbitrary point in the future for the expiration of the AUMF will not result in ending the authorities but rather their reauthorization.
Take, for example, the political disagreement over the transfer of Guantanamo detainees that the entire national security bureaucracy of the U.S. government agrees can be safely moved out of the prison. Leaving aside the issue of ultimately closing Guantanamo, Congress is considering legislation to prohibit transfers of detainees the government does not want to hold anymore because of the risk of those detainees “rejoining the fight.” The judgment of the military and intelligence community favors release but those views are struggling overcome elected officials’ assessment of the political risk associated with the release of these detainees. Consider the political risk that would be associated with voting or allowing the actual war to end and you can understand my concerns about a sunset clause only providing the illusion of ending the war.
So when can the conflict with ISIL end? First, we must recognize that the U.S. government has a full arsenal of tools at its disposal to counter the threat posed by terrorist organizations and that the military is only one of them. The correct frame for this question as it relates to an AUMF is: when would it be appropriate for the military phase of the conflict with ISIL to end?
The closest thing to an answer any administration official has offered was White House Chief of Staff Denis McDonough on Meet The Press last fall. He said, “[s]uccess looks like an ISIL that no longer threatens our friends in the region, no longer threatens the United States. An ISIL that can’t accumulate followers, or threaten Muslims in Syria, Iran, Iraq or otherwise.”
That is a good starting position. Building on those criteria, a possible endpoint for the military phase of the conflict would be an ISIL that is no longer capable of threatening the U.S. homeland, does not control territory, and is degraded to the point that local military and law enforcement in partnership with the United States and our allies can manage the threat. Others can and certainly will disagree with this formulation, but what is important is that the debate over when we can end these wars is started and joined.
It will be difficult to bring about the end of these military conflicts even if there is something approaching a consensus about at what point these wars could be over. And Congressional action is not the only, or even most likely, vehicle for ending the wars—the President has the authority to determine the conflict is over. But what is certain is that without even a debate about when the wars should end, it is extremely unlikely that the United States will get off the perpetual war footing with or without a sunset of the AUMFs.