A New AUMF, The Lame-Duck Session, and the Meaning of Sunset Clauses

By Jack Goldsmith
Wednesday, November 12, 2014, 8:50 AM

Two quick reactions to John Bellinger’s post on a new ISIL AUMF:

I agree that the new Congress and not the lame duck Congress is best suited to revise the 2001 AUMF (and, in my opinion, also to put the war against ISIL on a firmer statutory footing).  I don’t think our proposal suggested otherwise.  And the President himself said in his press conference that "right- siz[ing] and updat[ing]" the AUMFs “may carry over into the next -- into the next Congress.”

John is also “troubled about the proposal … to sunset a combined new AUMF after 36 months” because the “conflict with al Qaida and associated groups shows no sign of ending within three years” and a sunset would “send a signal to Al Qaida that Congress lacks the resolve to use force over the longer term.”  If indeed the conflict with AQ and associates continues for three more years, which I agree is likely, I do not think a sunset will send that signal.  The successful sunset clauses in the surveillance context have not signaled to anyone that Congress lacks the resolve for aggressive U.S. surveillance past the sunset date.  Rather, it has meant only that Congress must reconvene to update the authorities in light of new conditions.  Nor does the need to fund military operations every so often signal that Congress or the nation lacks the resolve to continue a fight.  Similarly, a sunset on an AUMF will mean, and should signal, only that in our democracy it is prudent that Congress reconvene to assess and update the President’s authorities to use force every few years.