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In his post this morning, Ben identifies what he calls "flaws" with three of the six principles for a use-of-force authorization for ISIL that were introduced yesterday by a group of legal experts (that includes me). Although Ben has done us the courtesy of critiquing the Principles, it appears he didn't actually read them all that carefully. If he had, he might have realized that, rather than highlighting the distance between our preferred approach and the one that he, Bobby, Jack, and Matt endorsed yesterday, they reveal our far deeper agreements as to just about everything that matters. Let me take Ben's purported "flaws" in ascensding order of seriousness. First, Ben critiques the timing of the sunsets, because, he reasons, 18 months from now would have any new AUMF (and the September 2001 AUMF) expiring right in the middle of the next election cycle. Ben therefore says that our math "is a little off." But so as not to hide the ball (unlike Ben), let's be clear that we all actually agree both that any new statute should sunset in 2017--and why it should. That's why the Principles don't actually say the ISIL AUMF sunset should be exactly 18 months from now; they refer to the 18-month sunset that Congress included in the 1983 Lebanon authorization as a model--and stress that "A similar approach would be appropriate for a sunset here, as well." Lacking Ben's confidence that Congress will pass anything along the lines we're recommending anytime soon, something in the ballpark of 18 months may well be what we're all talking about. But if it turns out to be 24 months until the middle of 2017 by the time this legislation clears the House and Senate, so be it. The larger point is the far more important one: the emerging consensus that an ISIL use-of-force authorization should include a sunset that requires the 115th Congress to revisit its scope. Second, and more fundamentally, Ben objects to our effort to trifurcate three different statutes--the September 2001 AUMF, the Iraq 2002 AUMF, and the new ISIL-specific AUMF. Recall that the Principles propose (1) a new, ISIL-specific AUMF; (2) repeal of the Iraq 2002 AUMF; and (3) sunset of the September 2001 AUMF. Thus, Ben writes that "the Just Security principles propose marrying an ISIL-specific new AUMF with taking away the authority to use force against Al Qaeda and its allies." Once again, Ben's rhetoric masks the far deeper agreement as to the underlying goal of the enterprise: the emerging consensus that use-of-force authorizations should be focused on those existing threats actually justifying uses of force, as opposed to emerging (or declining) threats that can be quelled through existing law enforcement and self-defense tools. Thus, the Principles put the separate ISIL-specific AUMF and the September 2001 AUMF on the same clock, while getting rid of the Iraq 2002 authorization (any continuing need for which is mooted by the enactment of an ISIL-specific statute). Ben concludes from this that "[t]here would be no authorization to operate against core Al Qaeda, AQAP, the Haqqani Network, the Taliban or any other Al-Qaeda linked nasties to the extent they do not rise to the level of an imminent threat." That's just not true. The Principles don't advocate a repeal of the September 2001 AUMF when it sunsets; they advocate for a revisiting of that statute to calibrate it to the nature of the threats those groups pose two years from now. As the Principles expressly state, "The function of such a clause is not to terminate the campaign before it has achieved its objectives, but instead to ensure that Congress affirmatively decides whether and under what terms to continue to support the evolving nature of the conflict, consistent with its historical and constitutional role." I, for one, very much doubt that the 115th Congress will be in any great hurry to repeal the September 2001 AUMF, rather than update it. But even if folks think, contra me, that Congress wouldn't necessarily reauthorize the September 2001 AUMF in 2017, Ben's proposal--which would fold the September 2001 AUMF into the ISIL-specific statute and have that new, combined use-of-force statute sunset in 2017--produces the exact same result. It just accomplishes that goal under the aegis of one statute, rather than two (reducing Ben's critique to what he calls a "housekeeping objection").Indeed, the only real objection that Ben has left--that the Principles urge a geographic constraint on an ISIL-specific AUMF--stems from his merger of the ISIL-based statute and the September 2001 AUMF, which, as readers surely know, includes no such limits. The Principles avoid this translation problem by keeping separate conflicts separate. Thus, although Ben's post opens with the assertion that Principles 1, 2, and 4 are flawed, his proposal actually reflects broad agreement with the goals--if not the mechanics--of each of them.
Steve Vladeck is a professor of law at the University of Texas School of Law. A 2004 graduate of Yale Law School, Steve clerked for Judge Marsha Berzon on the Ninth Circuit and Judge Rosemary Barkett on the Eleventh Circuit. In addition to serving as a senior editor of the Journal of National Security Law & Policy, Steve is also the co-editor of Aspen Publishers’ leading National Security Law and Counterterrorism Law casebooks.
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