House Committee Hears Expert Testimony on How to Improve the Administration’s ISIL AUMF

and George Weber

Much of last week’s House Armed Services Committee hearing on President Obama’s proposed Authorization for the Use of Military Force (AUMF) against the Islamic State (also known as ISIL) focused on the potential ground troops restriction. But two of the witnesses, Robert Chesney of University of Texas Law School, and Ben Wittes, Senior Fellow for the Brookings Institution, put the spotlight on other critical issues.

The administration’s proposal, Wittes said, is “significantly flawed.” Since it fails to address the 2001 AUMF—passed in response to the 9/11 attacks and used to authorize the continued “war on terror”—any limitations in the proposed ISIL AUMF are “meaningless,” he testified. As long as the 2001 AUMF remains in place, any ISIL AUMF would be “purely additive” to the powers the president already has to fight ISIL.

Additionally, both witnesses condemned Obama’s failure to include mission objectives and called for enhanced reporting requirements. The current proposal requires reports on the “specific actions” taken under the authorization every six months—“quite anemic,” according to Wittes. Chesney called for periodic disclosure of what groups are considered “associated forces” targetable under the AUMF and where, other than Iraq and Syria, it authorizes lethal force.

While both Wittes and Chesney criticized the administration’s proposal, they strongly support its three-year sunset clause. Critics claim the sunset clause predetermines that it won’t be renewed. But as Chesney explained, the true purpose of a sunset provision is to “create an occasion after a certain period of time for the authorization, if appropriate, to receive the fresh imprimatur of a Congress and a president, acting on the most recent conditions,” and if necessary, reauthorize and refine the AUMF to suit an evolving conflict.

Sunsetting the 2001 AUMF and the ISIL AUMF is especially needed given the disastrous over-use of the 2001 AUMF, which has degraded the rule of law. Chesney noted that the failure to reassess the 2001 AUMF has eroded perceptions of its legitimacy, generated friction and doubt, and caused unhelpful consequences for military commanders in the field. “It’s been 13 years plus since [the 2001 AUMF] was enacted,” he said, “and it is a shame that we haven’t had a past occasion where it’s become clearly refreshed.”

Wittes and Chesney, along with Jack Goldsmith and Matthew Waxman, co-authored a draft ISIL AUMF last November. It includes a three-year sunset, stronger reporting requirements, and the obligation to comply with international law regarding where force can be used. Their draft also folds the 2001 AUMF into the ISIL AUMF and therefore also sunsets the 2001 AUMF in 2018.

This draft demonstrates a bipartisan consensus among national security law experts, which is also reflected in a Statement of Principles to guide Congress on the ISIL AUMF written by another group of legal experts. Several of these experts also recently released a paper on The Six Key (Missing) Elements in the president’s proposed ISIL AUMF.

Congress should heed these expert voices as it continues to debate the Obama administration’s proposed ISIL AUMF. As Human Rights First has advocated, stronger reporting requirements, a sunset provision for the 2001 AUMF, and correcting its other shortfalls will strengthen both our democracy and our national security.