Published by The Lawfare Institute
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Tonight, Longwood University will host the first and only debate between Vice Presidential candidates Tim Kaine and Mike Pence. One issue they should be asked about is whether they think Congress should authorize the war against ISIS, and, if so, what the parameters of that authority should be.
While there are divergent views on whether a new, ISIS-specific authorization is constitutionally required, both candidates should be able to agree that support from Congress would bolster American leadership and demonstrate resolve in the fight against ISIS. And in crafting their prescriptions for what a new authorization should include, the candidates would be wise to look to the growing bipartisan consensus among national security experts that Jen and Ben discussed in detail last year.
Based on this expert consensus, a new AUMF for the fight against ISIS should:
- Clearly specify the enemy and mission objectives and not grant a blank check for using force against unknown future threats;
- Require compliance with international law;
- Include meaningful reporting and transparency requirements sufficient to keep both Congress and the public informed;
- Set a sunset for both the authority to fight ISIS and the authority to fight al-Qaeda so that both authorities must be revisited contemporaneously; and
- Make clear that the new ISIS-specific authority is the sole source of statutory authority for the fight against ISIS to prevent confusion, overlap, and a potential end-run around the statute’s requirements.
Why do these constraints matter? Clearly specifying the mission objectives and enemy group that force is authorized against prevents the executive from overstepping Congress’ intent behind the authorization, discourages mission creep, and ensures that the authorization will not be used to justify perpetual armed conflict—with disastrous consequences for human rights—but will instead expire when the mission against the specified enemy is achieved. Preemptive authorization to use force against emerging threats or unknown enemies is unnecessary given that currently unknown groups that pose an imminent threat to the United States in the future can be dealt with using the president’s authority under Article II of the Constitution and under Article 51 of the U.N. Charter.
Regular and thorough reporting sufficient to keep both Congress and the public informed is important to ensure compliance with domestic law and the laws of war, and to maintain legitimacy at home and abroad. Requiring the president to provide regular reports on the groups considered covered under the new AUMF (including the factual and legal basis for this finding), the number of civilians and military personnel killed, relevant legal analysis, and other similar information will enable the public and Congress to assess their support for the war effort as it unfolds.
Requiring that the use of force be carried out in compliance with U.S. obligations under international law is important for maintaining global confidence in the United States as a nation that complies with the rule of law, undermining terrorist propaganda about the United States, and encouraging cooperation from allies in the fight against ISIS. One way to require compliance with international legal obligations is to authorize the president to use “necessary and appropriate” force, as advocated in the Just Security principles. Another approach is to require such compliance explicitly, as in the Lawfare draft AUMF.
An expiration date or sunset clause is an important safeguard against perpetual armed conflict or executive branch overreach. Sunset clauses act as a forcing mechanism, requiring Congress and the administration to reexamine the AUMF at some future date in light of more recent conditions, and if necessary, reauthorize and/or refine the legislation to suit those new conditions. Sunset provisions have been included in nearly a third of prior AUMFs. The 2001 AUMF, which was passed to authorize the use of force against those responsible for the 9/11 attacks, did not contain a sunset clause and has since been interpreted to authorize the use of force for more than 15 years, including against groups that Congress did not intend to authorize force against.
From a broader human rights perspective, these constraints matter because overbroad use of wartime powers threatens basic human rights protections against extrajudicial killing and detention without charge or trial. When Congress authorizes the use of military force, force which is subject to extraordinary rules, the parameters of that authorization should be clear. And while there are different ways to achieve these ends (as the Lawfare draft AUMF and Just Security Principles demonstrate), both candidates should be able to agree on these core principles during tonight’s debate.