ISIS

A Response to Steve Vladeck on the AUMF Principles

By Benjamin Wittes
Tuesday, November 11, 2014, 1:51 PM

I am a little perplexed by Steve's response to my critique of the AUMF principles he helped write. Steve accuses me of "hiding the ball." But he seems to me, rather, to be moving the goalposts. He may have moved them into a position that, as he suggests, gives rise to less disagreement on my part with the principles he is advancing. But I can't quite reconcile his new post with the principles he and his colleagues have written.

Steve starts by saying that I have mischaracterized his call for an 18-month sunset, by which he now says he really means a sunset sometime in 2017. "[T]he Principles don’t actually say the ISIL AUMF sunset should be exactly 18 months from now," he clarifies. "They refer to the 18-month sunset that Congress included in the 1983 Lebanon authorization as a model---and stress that 'A similar approach would be appropriate for a sunset here, as well.'"

Actually, no. That's not what they say---at least not about the sunset of the 2001 AUMF, which was what I was writing about. Here's what the principles say on when the 2001 AUMF should expire: "As with a sunset for the ISIL-specific AUMF, an additional 18 months would establish an appropriate sunset date for the 2001 AUMF." Steve is right that when that 18 months would end would depend on when Congress enacts it. But you'd have to imagine that it takes a full six months from the time the new Congress comes into session in order to believe that 18 months would take us into the 115th Congress. 

I am glad to hear that sunset in the 115th Congress---for both the 2001 AUMF authorities and the new ISIL authorities---is actually what Steve means, but it's not what I read in the principles document. And I don't think that's because I am moving the ball or because, as Steve also says, I did not read it carefully. It's because it's just not what the document says.

Steve is correct that if you read the number 18 to mean something more like a range between 24 and 30, the differences between the two proposals start to fade---at least a bit. After all, it is true that the principles don't directly call for the 2001 AUMF to expire on sunset, merely for Congress to have to revisit them at that point---which is much the same thing as our draft AUMF does 36 months after authorizing force against ISIL, Al Qaeda, and the Afghan Taliban.

But I did not initially read the principles that way but instead, as my post reflects, as a call to retire the 2001 AUMF after a period of overlap with the new ISIL resolution. This was in part because of the 18-month sunset. It frankly never occurred to me that the drafters of the principles might mean for Congress to pass one resolution this year, and then reauthorize both the 2001 AUMF and the new ISIL AUMF in 2016 in the midst of a presidential election. But it was also because of the text of the principles, which in several ways suggest that the drafters mean to retire the old authority. Here's what they write:

As the nature of the armed conflict with al Qaeda has evolved, the focus of the administration’s use of the September 2001 AUMF has increasingly shifted from the Afghan theater to other locations, such as Yemen and now Iraq and Syria. Reliance upon that AUMF for the military campaign against ISIL, in particular, raises substantial questions about whether such statutory authority does—or should—extend to this new campaign. Although outright repeal of the 2001 AUMF may be premature, enacting a new AUMF without revisiting existing force authorization statutes could lead to a debilitating state of perpetual war, confusing legal authorities, and diminished congressional oversight. Accordingly, Congress should include within the ISIL-specific AUMF a sunset provision for the 2001 AUMF.

As with a sunset for the ISIL-specific AUMF, an additional 18 months would establish an appropriate sunset date for the 2001 AUMF. Setting such a date would allow the next administration and Congress to consider afresh—and with the benefit of renewed democratic participation through the 2016 elections---how to ensure that both the ISIL-specific AUMF and the 2001 AUMF best address the situations that exist at that time.

I had read this as suggesting (a) that the conflict is shifting away from the core geographic focus of the 2001 AUMF, which is dangerous to apply in Iraq and Syria, (b) that while repeal of the 2001 document "may be premature," (c) not reining in those authorities will create a dangerous forever war, and (d) that 18 months should give the administration time to wind things down under the 2001 AUMF. I concede that the final sentence of the quoted passage leaves open the possibility of reauthorization of the 2001 AUMF, as do Steve and Ryan's explanatory notes on the document. But nothing in the principles remotely suggests that the authors mean that Congress should renew authorization for the fight against Al Qaeda and its allies in spaces beyond Iraq and Syria. The most the principles can be read to suggest is that Congress should leave that question for another day, having put the 2001 on a very short glide path to obsolescence. By contrast, our draft would affirmatively reauthorize the fight against Al Qaeda and associated forces over a three year period. I took that to be a very significant difference.

But Steve is certainly correct that if the principles authors are talking about repeal of the 2001 AUMF authorities not as merely "premature" but perhaps as unwise, and particularly if I was wrong to read the number 18 is reflecting the product of the prime factors 2x3^2, then the differences between us indeed fade a great deal.