I join Ryan Goodman in applauding the Senate Foreign Relations Committee under the strong leadership of its Chairman Bob Menendez (D-N.J.), Sen. Tim Kaine (D-Va.), and many others on the Committee who fought hard to get an Authorization for the Use of Military Force (AUMF) against ISIL reported out before the end of the lame duck. Many of its provisions are worthy additions to Congress’ body of work and should serve as strong markers for any action in 2015 if the full Congress does not pass an ISIL AUMF before adjourning. Yet I differ sharply with the Committee and Ryan about the value of the sunset to the 2001 AUMF as it is currently drafted in the Committee ISIL AUMF, however well intentioned it is.
I strongly support repealing the 2001 AUMF, and that is why I am so worried about how the sunset has been crafted and added to the ISIL AUMF.
First, solely relying on a sunset provision is very unlikely to actually bring about the repeal of the 2001 AUMF. Second, establishing a concurrent timeline for the sunsets of the ISIL AUMF and the 2001 AUMF will most likely result in the merger of those two use of force authorizations since a future Congress must reconsider both of them at the same time. And third, choosing a three-year sunset for the 2001 AUMF makes it much harder for President Obama to actually achieve his repeatedly discussed goal of repealing it.
It’s true that that a sunset will force a reconsideration of the 2001 authority, but the recent track record of sunset provisions in national security legislation is not a good one. Numerous Patriot Act provisions were either simply reauthorized or made worse when their expiration approached and the next or future Congresses don’t strike me as better positioned to change that, especially when U.S. forces are engaged in combat.
At the Committee markup on Thursday, there were a lot of complaints from the proponents of a sunset about the unlimited nature of the 2001 AUMF, but not a single word about the conditions at which point it would be appropriate to end the military conflict with al Qaeda. Establishing such conditions should be the focus of creating a mechanism to force the reconsideration and ultimate repeal of the 2001 AUMF. Simply providing an end point tied to an arbitrary date in the future will only align incentives in favor of extending the authority and all the risks will be associated with allowing it to lapse. But a sunset provision that forces reconsideration coupled with criteria against which to measure progress just might actually do it.
In addition to my concerns with a simple sunset for the 2001 AUMF, choosing to have it match the same three-year timeline of the ISIL AUMF would essentially merge these two authorizations when they come up for renewal. This would undo all of the effort to keep this new AUMF specific to ISIL. The set of principles to guide an ISIL AUMF published in Just Security strongly favor an ISIL-specific authorization but also include a recommendation to sunset both the ISIL and 2001 AUMFs and do not suggest different timelines for them. Additionally, the military conflict with al Qaeda will likely end before the conflict with ISIL does. But if those two conflicts are merged in the same domestic law authorization, the military action against al Qaeda could be needlessly prolonged as well as the legal authorities that come with it, like detention authority at Guantanamo.
And lastly, while there are legitimate reasons to question just how committed President Obama is to repealing the 2001 AUMF given the events of the last several months, he remains the only elected official that has articulated both a desire and a timeline for doing so. It has been practically impossible to get Congress to do anything related to the 2001 AUMF, so it is safe to assume that adding a sunset provision is the only action it will take making it extremely unlikely President Obama could work with Congress on revisions or a repeal. And a Congressional statement that the authorities of the 2001 AUMF should extend beyond his term in office elevates the political obstacles to President Obama exercising his discretionary authority to determine that the conflict with al Qaeda is over.
The best way to resolve these issues would be to sunset the 2001 AUMF before the end of the Obama administration and at a different date than an ISIL AUMF. Criteria to measure progress toward ending the military conflict with al Qaeda must also be established along with the separate sunset date. (See my proposal for a similar set of criteria for the fight against ISIL here.)
Getting an ISIL AUMF this far is definitely an achievement. I am just hopeful that the unintended consequences of adding a sunset to the 2001 AUMF don’t do more harm than good.