Administration Attempts to Win Congressional Support for ISIL AUMF

At yesterday’s hearing before the Senate Foreign Relations Committee, three top administration officials—Secretary of State John Kerry, Secretary of Defense Ashton Carter, and Chairman of the Joint Chiefs of Staff General Martin Dempsey—attempted to garner support for President Obama’s Authorization for the Use of Military Force (AUMF) against the Islamic State in Iraq and the Levant (ISIL), which the president sent to Congress nearly a month ago.

Secretary Carter said that the ISIL AUMF’s three-year sunset was one of the elements that “gives the authority and flexibility needed to prevail in this campaign.” Carter called the sunset clause “a sensible and principled provision,” based on the division of war-making powers in the Constitution, which “affords the American people the chance to assess our progress in three years’ time, and provides the next president and the next Congress the opportunity to reauthorize it, if they find it necessary.”

But Carter was not as positive about a sunset to the 2001 AUMF—the authorization passed in response to the 9/11 attacks, which has since been used to expand war powers and justify military force from Yemen to Somalia, as well as the current campaign against ISIL. When asked if he would support adding what he had—minutes before—called a “sensible and principled provision,” to the 2001 AUMF, Carter said “I can’t give you a clear answer.” And indeed, he didn’t. Carter rambled about the need to “protect ourselves” and said that the length of the war against al Qaeda “ought to inform whether a sunset for the authority… makes sense.”

If anything, the nearly 14-year war waged under the 2001 AUMF—the longest war in U.S. history—shows exactly why a sunset is needed. The law has been stretched far beyond what Congress intended and a review is long overdue.

Carter also said that if the ISIL AUMF was not reauthorized after three years, a future president could continue to target ISIL under the 2001 AUMF—and consequently, without the limits in the ISIL AUMF. This effectively renders the ISIL AUMF debate absurd.

The administration witnesses also gave a troublingly broad interpretation of the “associated forces” targetable under both the ISIL AUMF and the 2001 AUMF. Carter said that both laws could be used to target Boko Haram in Nigeria, despite their relatively regional goals and loose connection to ISIL a continent away. Kerry said that it would only be targetable if “they start to attack the United States or join with ISIL in a specific strategy to attack coalition partners.” This was too much for Senator Rand Paul, who said “if we’re going to read Boko Haram into [the 2001 AUMF], that is such a stretch that it’s meaningless.”

Kerry gave a disappointing response to Senator Jeanne Shaheen’s question about the need for more detail in the periodic reports from the administration, which currently only require reporting on the “specific actions taken pursuant to this authorization.” He said that the State Department already produces many reports “that, frankly, don’t often get thoroughly read.” He added that more transparency on the numbers of civilian casualties, groups targeted, and objectives pursued under the ISIL AUMF would create “an excess of paper turning and a process that actually gets in the way of getting things done.” In other words—we believe in transparency, but only if it doesn’t create too much paperwork.

A bipartisan consensus among national security law experts on what an ISIL AUMF should look like has been around for quite some time, but the administration doesn’t seem interested. These experts, who have served in both Republican and Democratic administrations, agree that any ISIL AUMF should be narrowly tailored to target ISIL, supersede and sunset the 2001 AUMF, comply with international law, and include mission objectives, robust reporting requirements, and a sunset.

Such an AUMF would strengthen U.S. global legitimacy and reinforce human rights. The president and Congress would do well to heed this expert advice.