Islamic State

Why a Sunset Clause is Important in Any New AUMF

By Jack Goldsmith
Thursday, February 5, 2015, 10:24 AM

The rumors circulating that the administration might in the next week finally present a draft AUMF against the Islamic State causes me to ask: What is the point of a new AUMF?

Military operations against al Qaeda and its associates and the Taliban – in Afghanistan, Pakistan, Yemen, Somalia, and almost certainly (according to Mark Mazzetti and other journalists) in many other countries not made public – have been justified under the sunset-less 2001 AUMF.  The President has also maintained (in his September 23, 2014 WPR letter) that he is conducting the armed conflict against the Islamic State  pursuant to his “constitutional and statutory authority as Commander in Chief (including the authority to carry out [the 2001 and 2001 AUMFs]) and as Chief Executive, as well as my constitutional and statutory authority to conduct the foreign relations of the United States.”  The President added that “it is not possible to know the duration of these deployments and operations,” and that he would “continue to direct” the use of force against the Islamic State “as necessary to protect and secure U.S. citizens and our interests against the threat posed by ISIL.”  In short, President Obama has claimed statutory and constitutional authority to use force against al Qaeda and its affiliates, and the Islamic State, in several countries around the world on an indefinite basis.

If Congress gives the Obama administration the broad and open-ended AUMF for the Islamic State that the administration appears to want (see Sunday’s NYT op-ed for links), what will Congress have accomplished?  The short answer: nothing in terms of substantive authorities, a bit in terms of democratic deliberation, but not nearly enough overall.

In a new AUMF for the Islamic State Congress would give its contemporary imprimatur to the conflict, presumably preceded by a debate about its wisdom and efficacy.  Hopefully the American people would be better informed about what is at stake, and our enemies better informed about our resolve.  The president would also have additional legal and especially political cover for fight against the Islamic State.  But the broadly interpreted 2001 AUMF would remain in place, as would the President’s very broad interpretation of the 2001 AUMF to apply to the Islamic State, and the precedent of many months of practice under that interpretation.  The idea that the enactment of a broad new AUMF will mark a reassertion of Congress’s constitutional prerogatives on basic questions of war is a bit of a joke.  A broad new AUMF that essentially ratifies the authorities the President has claimed for months under the 2001 AUMF – a new AUMF, in other words, that the President’s actions make clear he can do without – will not by constitute a reassertion of congressional prerogative.

What might a more serious and refined AUMF do?  There is a broad consensus that the President needs continuing legal authority to fight AQ and affiliates and the Islamic State.  There are debates about the contours of that authority, but they are relatively small.  The question of ground troops, for example, is relatively unimportant because (a) the President has already introduced thousands of troops on the ground in Iraq under the 2001 and 2002 AUMFs and Article II, (b) the draft AUMFs  that purport to limit authorization for ground troops (e.g. from Senator Kaine and Representative Schiff) have exceptions, and most importantly, (c) these drafts do not purport to ban the use of ground troops, but rather merely to limit the congressional authorization for them, thus leaving the President unencumbered Article II power (or power under any AUMFs not repealed) to introduce ground troops in self-defense.  I think geographical scope issues are relatively small for related reasons.  In sum, in terms of legal authorities for any foreseeable use of ground troops against the Islamic State, or military actions beyond Iraq and Syria against the Islamic State, there appears to be relatively little at stake.

A sunset clause of, say, three years is a less trivial issue. Such a sunset clause would not, as some think, signal that the war will end in three years or that Congress lacks resolve beyond then.  As I once explained:

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.

A sunset clause precommits Congress and the President to revisit the nature and scope of the very diffuse war against Islamic terrorists on a regular basis.  It pressures the President on a regular basis to explain the nature of the conflict and the reasons why it must continue (and how), and it pressures Congress to exercise its constitutional and democratic responsibilities to deliberate about and vote on (or at least face) the issue.  A sunset clause poses risks.  The President could argue after three years that he can continue to fight the Islamic State under Article II without Congress’s imprimatur.  But while this argument might be available, it is more of a legal stretch, and certainly politically riskier, for the president to justify the entire conflict on the basis of Article II than it is for him to use Article II to extend the war a bit beyond what Congress authorized (either geographically or in terms of ground troops).  There is also the danger that Congress will not renew the authorization, or not renew it to the President’s liking, thus forcing the President into an awkward Article II posture or into narrowing the conflict further than he would like.  I doubt any of these outcomes will occur, as it should not be hard for the next President to make the case for renewing authorizations for war if such authorizations are plausibly warranted.  But in any event, as a nation we should not shy away from these possible consequences of democratic deliberation on a vital question like war.

In short, a sunset clause is the one provision that a Congress seeking to reassert its constitutional prerogatives should insist on in a new AUMF.