ISIL AUMF: Including a 2001 AUMF Sunset
The Obama administration has now provided Congress with proposed legislative text for an Authorization for the Use of Military Force (AUMF) for the administration’s military campaign against the Islamic State in Iraq and the Levant (ISIL). As Congress reviews and considers the administration’s proposed text, it is crucial that Congress correct the shortfalls of the AUMFs left over from the last decade. In particular, Congress should use this opportunity to sunset the 2001 AUMF, passed to respond to the 9/11 attacks.
Leaving the 2001 AUMF on the books diminishes congressional oversight and erodes the rule of law. The 2001 AUMF, passed three days after the unprecedented attacks of September 11, 2001, is, on paper, confined to the “nations, organizations, or persons” that either executed the attacks or harbored those who did. The administration has since interpreted the resolution to apply to al Qaeda, the Taliban, and their “associated forces,” and used the 2001 AUMF to justify the use of force against groups and in situations that Congress never intended. Without temporal limits, the 2001 AUMF has proven to be the basis for uses of force over many years, which most members of Congress could hardly have anticipated and about which Congress did not deliberate. It has also eaten away at the rule of law, upon which human rights and successful U.S. leadership both rely. Establishing a future date for expiration of the 2001 AUMF would mandate a review by Congress and the administration, requiring the two branches of government to debate and agree on the appropriate scope of war authorities to fight al Qaeda and its so-called “associated forces.”
Any restrictions in an ISIL AUMF will be rendered meaningless without a 2001 AUMF sunset. The Obama administration has stated that the 2001 AUMF already authorizes the current military campaign against ISIL. Without a 2001 AUMF sunset in the ISIL AUMF, any restrictions in the ISIL AUMF—such as a sunset or limitation on the groups that can be targeted—could be rendered meaningless; once the ISIL AUMF sunsets, if it was not reauthorized by Congress, this or a future administration (depending on the sunset date) could still claim that it has the authority to target ISIL under the 2001 AUMF. The only way to ensure that congressional intent cannot be disregarded in this manner is to include a sunset for the 2001 AUMF in the ISIL AUMF.
Nearly a third of prior AUMFs had sunsets. Sunset provisions have been included in nearly a third of prior AUMFs, as well as other post-9/11 legislation, such as the USA PATRIOT Act. As several members of Congress have noted, the sunsets in the PATRIOT Act has given Congress the opportunity to exercise important oversight and tailor the legislation over time.
Sunsetting the 2001 AUMF has bipartisan support. A bipartisan consensus has emerged among national security law experts—including those who have held senior positions in both Democratic and Republican administrations—that any ISIL AUMF should include a sunset of the 2001 AUMF.
Congress should seize the opportunity presented by an ISIL AUMF to insist on a sunset of the 2001 AUMF. This would rectify one of the most glaring shortfalls of the 2001 AUMF and provide the opportunity for much-needed congressional oversight.