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Rep. Schiff’s Newly-Proposed AUMF: Praise And A Caveat

Over at Lawfare, Jack Goldsmith praises Adam Schiff’s newly-proposed Consolidated Authorization to Use Military Force. With one important caveat (see below), we share in Jack’s praise.

The Schiff bill would repeal both the 2001 AUMF (authorizing force against those responsible for the 9/11 attacks) and the 2002 AUMF (authorizing the use of force in Iraq), and instead replace them with a single AUMF authorizing the use of force against al-Qaeda, ISIL and the Afghan Taliban. Critically, it includes a three-year sunset, and includes important transparency and information sharing requirements, requiring, among other things, mandatory reports to Congress on those groups the Executive Branch deems to be “associated forces,” along with the factual predicate for that determination.

Here, however, comes the one caveat. While section (3)(a)(1) states that the list of associated forces is to be published in the Federal Register, section (3)(a)(3) states that the list may instead be submitted in classified form “if the President determines it is in the national security interest of the United States to do so.”

While there may be good reason to classify the factual basis for the determination that a group constitutes an associated force, it seems hard to justify keeping secret the existence of the determination. And even if there is a short-term justification for keeping such designation secret, at some point there should be mandatory — and inflexible — declassification. Put simply, if the United States is going to effectively wage war against a group, it should publicly identify the enemy.

We’ve written quite a bit already about how Congress should more specifically authorize the use of military force against ISIL. The Schiff bill isn’t exactly what we’ve proposed, but it’s damn close. As such, this draft ought to become the basis for all AUMF discussions going forward — and, we can only hope, a platform for Congress to finally pass a bill on the subject.

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About the Authors

is an Associate Professor at American University Washington College of Law, where she teaches and writes in the fields of national security law, criminal law, and constitutional law. You can follow her on Twitter (@jendaskal).

is co-editor-in-chief of Just Security. Steve is a professor of law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).