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Sunset Provisions: Providing Parameters for the Use of Military Force

By   /  November 26, 2016  /  Comments Off on Sunset Provisions: Providing Parameters for the Use of Military Force

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By Anthony Bjelke

A recent article in The New Yorker examined the difficulties associated with defining America’s War on Drugs. As a preamble to its examination of the topic, it stated: “The United States has declared war on cancer, on pornography and on terror, and the lesson to be gleaned from those campaigns is that, unlike most other wars, those declared against common nouns seldom come to a precisely defined conclusion.”[1] As implied within, this statement raises one of the most critical issues of our current legislation for combatting terrorism, ambiguity.

A topic that has developed a considerable amount of discussion following the launching of the War on Terror in September of 2001, is how to measure our success in a conflict when the combatants are not sovereign nations, and in many instances, hold no territory? A question that naturally arises out of this conundrum is how to tell when a conflict is over? Unlike in traditional conflicts, terrorist organizations generally do not have any capital cities to occupy, generals to force to surrender or unified commands to capture. To put the question more plainly; when there is no instrument of surrender or armistice to be signed, how does Congress know when their authorization has ended, and how does the President know how far his power to act extends, both in time and in geographic reach?

The question of geographic reach is one that comes to the forefront in this “War on Terror” as many if not most of the terrorist organizations that the United States has opposed hold no territories and establish no formal headquarters. Even in the cases where one of the U.S. recognized terrorist organizations does hold some sway over a territory such as Hamas in Gaza, Hezbollah in Lebanon, and now ISIL in Iraq and Syria, it cannot be said that the destruction of their headquarters’, reclaiming of territories, or even capture or death of their top leaders will defeat the organization itself. Our long-standing traditions and protocols for declaring war and authorizing military force are somewhat

It is for this reason that fashioning a formal authorization for terrorist organizations present profound and difficult questions.

The currently active Authorization for the Use of Military Force (AUMF), which is being used to justify engagement with ISIL, was drafted within the week following the attacks on September 11, 2001, and read, in relevant part “That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” The relevance of this AUMF to the fight against ISL has been questioned over the past few years. At the 2014 WCL Fall Symposium on the Authorization for the Use of Military Force, the point was brought up that Al Qaeda, the terrorist organization that was ultimately responsible for the terrorist attacks on 9/11, disavowed ISIL because they were “…simply too violent. And they were killing too many Muslims.[2]” The obvious, problematic question here is how does the administration justify attacks on ISIL as furthering the 2001 AUMF? This concern was discussed in the 2015 book Speaking the Law: The Obama Administration’s Addresses on National Security Law by Professor Kenneth Anderson and Benjamin Wittes, where they contend “The legal and policy problem is that the task of territorial denial to these Islamist insurgent groups is not quite the task Congress authorized with the AUMF and it looks less and less like the conflict the AUMF contemplated the more time goes on.[3]

The question now is, of course, how can this situation be rectified from a legal perspective? Many have proposed what is known as a “sunset provision” that would effectively provide a date by which the administration would have to either cease its operations or convince Congress to grant an extension of their authorization. Sunset provisions have been a part of our nation’s history since the period following the founding, when the Sedition Act of 1798, the often-reviled act passed by the Adams Administration, included a sunset provision making it effective only until the conclusion of the President Adams’s term in office. More recently, sunset dates were put on various provisions of the USA PATRIOT Act of 2001, providing for the cessation or reauthorization of provisions specifically related to wiretapping and electronic surveillance[4]. While the subject of this article is specifically related to sunset provisions, a broader discussion of the potential form and reach of an ISIL AUMF can be found on the National Security Law Brief’s website.

The group Human Rights First have proposed that a solution would be to end the 9/11 based AUMF, or at least amend it to include such a sunset date, then pass a new AUMF for use in the conflict with ISIL, this time more well defined than its predecessor, including sunset dates, requirements for increased transparency, and a geographic limit on the scope of the mission. This proposal would provide for a more manageable and responsible AUMF and would provide Congress and the American people with a clearer idea of what they are getting into when initiating a conflict of this sort. It would also provide more accountability on both sides, as the president would have very well-defined parameters within which to operate, and congress is held accountable as there is a specific date by which they must decide on re-authorization or mission expansion.

[1] Jelani Cobb, The Home Front, The New Yorker, August 29, 2016, at 25.

[2] National Security Law Brief Vol.5, No. 2, p 107

[3] Speaking the Law p. 261 (ISBN 978-0-8179-1654-1)

[4] See §§ 201-203, 209, 217,220


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