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The Schiff AUMF: It’s even better than that

I heartily concur in the praise that Jen and Steve, and Jack Goldsmith, have heaped upon the new draft AUMF proposed by Representative Adam Schiff. Indeed, my enthusiasm for the proposal is, if anything, even more unqualified than theirs, because I think (perhaps naively, but I hope not) Congress might actually enact Schiff’s bill — and by an overwhelming margin, at that.

I won’t repeat here all of the reasons my fellow bloggers have offered for why the Schiff proposal is worthy of broad support. I would only add that Schiff has effectively made three of the four improvements that I suggested for the President’s draft AUMF, back in February: Schiff’s draft AUMF would (i) expressly supersede — by repealing — the 2001 and 2002 AUMFs, without eliminating the authorities contained therein, thereby making this new AUMF the singular authorization going forward (apart from appropriations statutes) for each of the nation’s current armed conflicts; (ii) eliminate an unfortunate ambiguity in the “necessary and appropriate” language; and (iii) fix the problems in the definition of “associated forces.”*

The only one of my February suggestions the Schiff AUMF does not take up is that it does not specify the objectives, or purposes, for which the President would be authorized to use force — an addition that could, I suggested, “importantly serve as an important implied limitation on the use of force that Congress is authorizing.” I assume that Representative Schiff did not include such a “Purposes” section because he concluded it would be very difficult to reach any congressional consensus on just which objectives and purposes should, and should not, be included in the bill. If so, I think that’s surely an acceptable concession to make in order to make passage more likely: the perfect shouldn’t be made the enemy of the good. If there is still an opportunity, however, to tweak the Schiff proposal, I would recommend considering the addition, at a minimum, of some of the “Whereas” clauses found at the outset of the President’s draft AUMF, as well as one that would adapt language from the U.S. letter to the United Nations that explained why it is lawful for the U.S. to attack ISIL in Syria without Syrian consent, e.g., “in order to end the continuing attacks on Iraq” from ISIL forces located in a nation that “is unwilling or unable to prevent the use of its territory for such attacks.” (That could be updated to specify that the use of force in Syria is now also appropriate in response to ISIL’s armed attacks against France, i.e., in collective self-defense of France as well as Iraq.)

The reason I’m even more enthusiastic than Jack about the Schiff AUMF is that I think it, unlike virtually every other proposal thus far, truly has a good chance of being enacted. There is much in it that the President and virtually everyone in Congress agrees upon and, perhaps more importantly, it contains almost nothing that might engender serious disagreement. That is to say, it hits a sweet spot of broad consensus, while leaving out those details that so deeply divide the legislators — with one possible exception (the sunset provision), which I’ll flag below.

I can think of only four reasons why any members of Congress might not support it:

First, there might be a handful of legislators, at most, who simply do not support the U.S. use of force against al Qaeda, the Taliban and/or ISIL. I’m not aware of any, but perhaps there are some. Their “no” votes, however, would not be much of an obstacle to passage.

Second, there’s a common mantra out there that members of Congress avoid voting on an AUMF of this sort so that they can’t be held responsible if and when things go awry. Perhaps there are some members who think that way; but in this case, such “reasoning” wouldn’t make much sense. This isn’t like the Iraq War, in which clear sides have been drawn among the members of Congress about the propriety of the armed conflict and therefore there’s some political risk in deciding which side of the line you’re on. The entire public is well-aware that virtually all legislators support at least the level of force currently being employed against AQ, the Taliban and ISIL — i.e, the force that the Schiff AUMF would expressly authorize. It’s not as if, if there were no AUMF and then things went badly, any legislator could plausibly say to her constituents: “Well, I didn’t support the conflict, so it’s not my fault.” If the Schiff AUMF comes to a vote in both Houses, I think there’ll be over 500 “yea” votes. Which is a reason why it should be brought to a vote.

Third, the draft Schiff AUMF does not include the President’s proposal to deny authorization of “the use of the United States Armed Forces in enduring offensive ground combat operations.” There might be some legislators who are inclined to insist upon such a condition, in order to constrain future Presidents. And perhaps some such legislators would, for that reason, refuse to support the Schiff bill.

Representative Schiff has, however, replaced that substantive limitation with a “next best” thing: Section 3(c) of his AUMF would require the President to notify Congress after the has begun “to deploy ground forces in a combat role against an entity [i.e., al Qaeda, the Taliban or ISIL] or organized and armed group,” and would then require that if anyone introduces a bill “that seeks to modify or repeal the authority to use ground forces,” Congress would have to use the expedited and streamlined procedures of section 6 of the War Powers Resolution to bring such a proposal to a vote in both Houses. That way, Congress presumably would be on record, one way or the other, with respect to the use of ground forces in a combat role. Jack “doubt[s] this will be much of a check on a President who wants to use combat ground forces (because a congressional restriction would likely need to override a presidential veto).” I think, however, it is very unlikely a President would continue the use of ground forces in combat even after being repudiated by both Houses of Congress — and in the event she did so, she’d be politically accountable for the results in an especially acute way. Therefore the Schiff bill might establish a very real, de facto deterrent to the use of combat forces, even if it is not as restrictive as an actual denial of authorization. And in a political context in which enactment of the latter is not remotely feasible, perhaps even those legislators who are opposed to the use of ground forces in combat might be persuaded to support the Schiff proposal.

Fourth, and most significantly, there’s the sunset clause, section 2(b), which reads: “The authority granted in subsection (a) shall terminate on the date that is 3 years after the date of the enactment of this joint resolution.” The President and many members of Congress likely will insist upon such a provision, as they should: It would effectively require the President, Congress and the public to debate how, if at all, the authorized use of force ought to be amended to fit the situation in the Middle East in early 2019, which will undoubtedly be different than it is today, in many respects that we can’t possibly anticipate now.

Some members of Congress have complained, however, that a sunset provision would send a bad “signal” to the enemy that the United States will stop fighting in three years. This has never seemed especially plausible to me: If ISIL, for example, remains a serious threat to Iraq, the Syrian people, Europe and/or the United States in 2019, and continues to use force against us, I can’t imagine the 2019 Congress not authorizing the President to use force against that organization. (To similar effect, see Jack Goldsmith here.) For that reason, I have doubts about how many members of Congress would actually vote against the Schiff proposal, or strongly urge that it not be brought for a vote, because of the sunset clause. If I’m wrong about that, however — if it’d be impossible to secure majority votes in both Houses of any AUMF containing a sunset — well, in that case there simply won’t be any new AUMF, at least not in this Administration.

Finally, a few words about Jen and Steve’s one “caveat” about the Schiff AUMF: Although section 3(a)(1) would generally require publication in the Federal Register of the list of “associated forces” against which the United States is using force, section 3(a)(3) then provides that the President may instead identify some such organizations to Congress (but not to the public) in classified form if he “determines it is in the national security interest of the United States to do so.” Jen and Steve write that “it seems hard to justify keeping secret the existence” of an armed conflict against a particular group.

Of course, I agree that the idea of a secret war is not only troubling, but more than a bit absurd: After all, it’s not a secret to those on whom the bombs are falling. (See Garry Trudeau, circa 1973.) Presumably, however, the reason for section 3(a)(3) is not to keep any armed conflict “secret,” but instead to allow for nonacknowledgement of U.S. involvement in a limited set of cases where that is diplomatically necessary.

The President and Congress generally have no particular incentive not to identify the forces against which the United States is using force — which is why the President regularly names such organizations in public War Powers Act reports, and why former General Counsel Preston specifically identified, in a speech and in testimony, the organizations against which the U.S. is currently using force pursuant to the AUMF and outside the “Afghan theater” — a listing that consists primarily of groups (e.g., AQAP, the Khoresan Group, ISIL) that are part of, or a successor spin-off of, al Qaeda itself, rather than associated forces.

It might sometimes be the case, however, that the public identification of a particular “associated force” would, in effect, be a public acknowledgement that the United States is using force in a particular nation, or a particular area, where the host state has insisted upon U.S. nonacknowledgement as a condition of its consent and cooperation. As I’ve written previously — see here and here — the United States ought to resist acceding to such conditions of nonacknowledgement much more than it has done so in the past. And therefore, the instances in which the identification of “associated forces” must remain classified ought to be few and far between. Nevertheless, the Schiff AUMF makes a concession to reality in accounting for those cases in which public acknowledgement is, however unfortunately, foreclosed by diplomatic assurances.

Having said that, I do agree in part with Jen and Steve that section 3(b)(3) is too broad, in that it would allow the President to identify “associated forces” in a classified format (i.e., only to Congress) if he simply “determines it is in the national security interest of the United States to do so.” The threshold for nondisclosure to the public should be higher than that — for example, the Schiff AUMF might be tweaked to reflect the standard suggested in the Chesney/Goldsmith/Waxman/Wittes proposal, to wit: that the President should be permitted to withhold public identification of the associated forces against which the United States is using force only if, and to the extent that, she determines such classified treatment is “strictly necessary in the interests of national security.”

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* One of Jack’s two “quibbles” with the Schiff draft is that its definition of “associated forces” “might depart in uncertain ways from the usage in courts and by the Administration.” I don’t think that it does deviate from the current understanding, but that’s something that can be clarified in the legislative process. Jack also wonders why one of the three principal entities against which force is authorized is identified as the “Afghan” Taliban, rather than simply “the Taliban.” Unlike Jack, I don’t think this is intended as a “geographical restriction”; instead, it’s simply a way of distinguishing the Taliban against which we began an armed conflict in 2001 from the “Pakistan Taliban,” or Tehrik-i-Taliban Pakistan, which is a distinct organization and which is, if anything, merely an associated force of al Qaeda and/or the Afghan Taliban.

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About the Author

is a professor at the Georgetown University Law Center. You can follow him on Twitter (@marty_lederman).