The Senate’s Long Overdue AUMF Hearing

This week the Senate Foreign Relations Committee held its first hearing in over two years on authorizations for the use of military force, or AUMFs. And it’s about time. For a quick explainer on what an AUMF is, check out the video above.

The scope of any new war authorization against ISIS or other terrorist organizations impacts U.S. national security and global leadership, as well as human rights at home and abroad. Because radically different rules apply during war—rules that jeopardize critical human rights protections against extrajudicial killing and detention without charge or trial—wartime rules must be confined to the situations for which they were designed.

After nearly 16 years of expanding war under the AUMF Congress passed in response to 9/11, it is long past time for Congress to weigh in on where, why, against whom, and for how long this country should be at war with terrorist groups.

During the hearing, there was clear agreement across the political spectrum that the 2001 AUMF has been stretched too far. Senators Tim Kaine (D-VA) and Jeff Flake (R-AZ), who released a bipartisan AUMF proposal last month that was a significant focus of the hearing, argued that the 2001 AUMF has been expanded far beyond the parameters set by those who voted for it.

Chairman Bob Corker (R-TN) also said the 2001 AUMF is stretched, and several other Senators noted that the 2001 authorization is now being used for war against groups like ISIS that had no connection to the 9/11 attacks and did not exist in their current form in 2001.

The committee’s top Democrat, Senator Ben Cardin (D-MD), remarked, “It was clear to me when I voted for [the 2001 AUMF] that I was giving the President the necessary authority to take action against those who attacked our country on September 11th. It’s now being used well, well beyond what Congress intended.” Senator Rand Paul (R-KY) used even stronger language: “We have been illegally at war for a long time now. This is illegal war at this point.”

Both hearing witnesses, John Bellinger III and Dr. Kathleen Hicks, testified that the 2001 authorization should be repealed and replaced with a new AUMF that is tailored to current threats and includes key provisions for ensuring continued congressional oversight. “This is not a partisan issue,” said Hicks. “There is broad bipartisan support from the human rights community to the military community.”

There was notable disagreement, however, on the wisdom of including a sunset provision in a new AUMF. A sunset provision makes a piece of legislation expire at a set time, unless it is reauthorized. Approaching the issue from his prior experience as an executive branch lawyer, Bellinger said that legally he would not recommend a sunset. But he emphasized that he understood why a sunset might be politically necessary given the how far the 2001 AUMF has been stretched beyond Congress’ intent, something a sunset provision would have avoided.

Hicks strongly recommended including a sunset provision to ensure that Congress, the body with the constitutional power to declare war, remains “an active partner in use of force decisions.” Hicks noted that sunsets do not create an end date for the conflict. Rather, reauthorization timetables force Congress and the administration to reexamine the AUMF and ensure the “authorization is aligned to changing geopolitical and other realities, and creating stability for military planners.”

Countering Bellinger’s claim that a sunset would bring an end to military operations and create uncertainty for commanders in the field, Hicks drew on her experience as Principal Deputy Under Secretary for Policy at the Department of Defense, saying an AUMF sunset was “very reasonable,” and “I don’t think it’s unduly burdensome to the military commander.”

This view is widely shared by national security law experts as well as other former government officials. Law professor Bobby Chesney, another former executive branch lawyer, labeled AUMF sunsets “highly desirable as a matter of democratic accountability.” Then-Secretary of Defense Ash Carter called a three-year AUMF sunset a “sensible and principled” provision, notwithstanding that the conflict may last longer than three years. And former Department of Defense General Counsel Stephen Preston recently said that a properly structured reauthorization provision would not create an artificial end date but would signal to our partners and adversaries that we are “committed to our democratic institutions and we have set up a mechanism to fight this fight as long as we have to fight the fight.”

Whether Congress will move forward on legislation authorizing the use of force against ISIS or other groups—and whether that legislation will include critical limits like a sunset—remains to be seen. But one thing was clear from Tuesday’s hearing: Congress should be able to reach bipartisan agreement on an AUMF that avoids repeating the mistakes of the 2001 AUMF.


Published on June 23, 2017


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