Stephen Preston, former General Counsel to the CIA and to the Department of Defense, was a speaker at a recent Heritage Foundation event entitled, “Is it Time for Congress to Pass an ISIS-Specific AUMF?”  We thought to highlight two points made by Preston in the course of the discussion with Heritage’s Cully Stimson and the New York Times’ Charlie Savage. Below are a lightly edited excerpt of Preston’s remarks.

Point 1: The “longer view”—when it may be “legally necessary” to have a congressional authorization for use of force (AUMF) against ISIS 

Preston: To say that a new AUMF was not necessary at the time in order for these military operations to be lawful is not to say it is merely desirable to have a new AUMF.  I used the word earlier—“imperative.”  I think it’s imperative not as a matter of legal necessity, but as a matter of the proper functioning of our government and for a number of the other subsidiary reasons that we discussed.  Another sense in which as time passes it may go from not just desirable or imperative (in the sense I’ve described) but legally necessary is as the adversary evolves.  At the time we addressed this issue, we were dealing with what had been called al-Qa’ida in Iraq, AQI, a terrorist organization that was a component of al-Qa’ida up until the differences between the leaderships that were operating in Syria and Iraq.  Now we have ISIS or manifestations of ISIS in Libya, Afghanistan – I don’t know where Boko Haram falls nowadays – and the 2001 AUMF and the rationales under the 2001 AUMF are not infinitely elastic to reach the adversary no matter what it is or how it manifests itself.  So I think if you take a longer view, it’s imperative as a matter of proper functioning of our democracy, but there are also legal reasons it would be wise and advantageous for the current administration to secure a new and express authorization.

Point 2: The advisability of a sunset clause—shows that we are “committed to the fight” and “committed to our democratic institutions”

Preston: So as I think about judging a new AUMF from my perspective the highest priority is on certainty and clarity as to what the authority is and that resides in terms of a follow-on AUMF in defining who the enemy is and then there’s beyond that you want it to be adequate sufficient to meet the foreseeable threat and tailored to the immediate and foreseeable threat. And there is a concern at least among a good number of members about a blank check type authorization and that then leads to considerations of various limitations. Geographic limitations, a mode of fighting limitation, temporal limitation and others. And the former are particularly problematic in that they tend to erode clarity as to what the authority is and may erode the utility of a new AUMF to meet the foreseeable if not present threat. I think that time limitations, the sunset concept, is entirely different and if properly structured isn’t really a limitation at all. If properly structured it is a public embrace of our democratic system where Congress and the President have to agree to initiate conflict and this would be structurally fashioned to periodically reaffirm our commitment to that fight. So I think if it’s a two year limitation that may have the effect it may signal to others that we are not committed to the fight but I could foresee  a sunset provision that places the sunset somewhere perhaps say a presidential term away and creates a mechanism for renewing the authority in advance of the sunset such that the public, our partners, and the adversary are not being messaged that we’re not committed to the fight but rather that we are committed to our democratic institutions and we have set up a mechanism to fight this fight as long as we have to fight the fight. To the extent that as a practical matter in Congress there are those that are uncomfortable with the blank check and there are those that are uncomfortable with excessive limitations, I think a properly structured time limitation actually could be a point of compromise.

Last week we highlighted one of the points raised by Charlie Savage, and we published a piece by Heather Brandon on the design of a new authorization for use of military force against ISIS which also discussed Preston’s remarks. The full event, which began with a presentation by Senator Todd Young is below.