[Congressional Record Volume 168, Number 116 (Thursday, July 14, 2022)]
[Extensions of Remarks]
[Pages E729-E730]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]





        NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2023

                                 ______
                                 

                               speech of

                            HON. BARBARA LEE

                             of california

                    in the house of representatives

                        Wednesday, July 13, 2022

  Ms. LEE of California. Madam Speaker, I rise in support of our 
amendment, Lee/Meijer number three eight seven, to express the sense of 
Congress that Authorizations for the Use of Military Force should 
include sunset provisions.
  I want to thank my cosponsors, including Congressman Meijer, and 
Chairmen Smith and McGovern for their support to permit me to offer 
this amendment.
  Under our Constitution, Congress has the unique responsibility of 
oversight authority over the use of military force. Congress should 
maintain authority over when and how the United States wages war. And 
we should insist that the executive branch have a clear plan, objective 
and time limit for these authorizations.
  The purpose of a sunset clause is not to withdraw our military before 
it has achieved its goal. Rather, it is to make sure that Congress, as 
the people's elected representatives, exercises our responsibility to 
ensure any use of military force is supported by and serves the 
interests of the American people.
  Legal experts from across the ideological spectrum support the 
inclusion of sunset provisions in AUMFs. And Congressionally-required 
sunsets are not a new idea. Congress has included sunset provisions in 
29 percent of prior authorizations for use of military force and 
declarations of war.
  A sunset is not any sign of lack of American resolve. Congress has 
shown it can and will act quickly and decisively when core American 
interests and values are at stake. In 1941 and again in 2001, Congress 
acted within twenty-four hours of the President's request for authority 
to wage war.
  I include in the Record an article written by Dr. Tess Bridgeman 
regarding the importance of AUMF sunset provisions. Dr. Bridgeman is a 
former legal advisor to the White House and State Department, and an 
expert on the constitutional law regarding war powers. Dr. Bridgeman 
writes:
  ``Arguably far more important than any potential signal that might be 
sent to a foreign adversary, a reauthorization requirement sends a very 
real and important signal to our own troops: Congress supports the war 
effort you are engaged in and has taken a tough vote to authorize it. 
And if you are brave enough to fight, we are brave enough to vote.''
  Madam Speaker, this amendment is a reasonable expression of Congress' 
role and the founders' intent on matters of war and peace. We cannot 
write blank checks to the executive branch. Requiring AUMFs to include 
sunsets ensures that any use of war powers is in line with the views 
and priorities of the American people, expressed through the ballot 
box. I urge my colleagues to support this amendment, and support the 
principle that wars must have an end.

                  [From Just Security, July 13, 2022]

          In Support of Sunsets: Easy Yes Votes on AUMF Reform

                          (By Tess Bridgeman)

       As Congress readies for votes on the must-pass National 
     Defense Authorization Act (NDAA), several amendments related 
     to authorizations for use of military force (AUMFs) merit 
     attention as easy ``yes'' votes that could help restore 
     Congress' congressional authority over when to take the 
     nation to war. Three of these are simply long-overdue good 
     war powers hygiene, repealing old ``zombie'' AUMFs (as Rep. 
     Peter Meijer (R-MI) has coined them) that are not relied on 
     for any current U.S. operations but could be susceptible to 
     abuse. These are Rep. Barbara Lee's (D-CA) 2002 AUMF repeal 
     amendment (with bipartisan co-sponsors), Rep. Abigail 
     Spanberger's (D-VA) repeal of the 1991 AUMF, and Rep. 
     Meijer's repeal of the 1957 AUMF. Another bipartisan 
     amendment, co-sponsored by Reps. Lee and Meijer, takes the 
     small but important step of declaring the ``sense of 
     Congress'' that any new AUMF should include a date on which 
     the authorization is terminated unless reauthorized by 
     Congress, a.k.a. a sunset.
       While settling on the details of any new AUMF will be 
     challenging, the bipartisan sunset amendment should be 
     another easy yes vote for members, and the Biden 
     administration should support it. The full text of the sense 
     of Congress provisions are as follows:
       (1) the inclusion of a sunset provision or reauthorization 
     requirement in authorizations for use of military force is 
     critical to ensuring Congress's exercise of its 
     constitutional duty to declare war; and
       (2) any joint resolution enacted to authorize the 
     introduction of United States forces into hostilities or into 
     situations where there is a serious risk of hostilities 
     should include a sunset provision setting forth a date 
     certain for the termination of the authorization for the use 
     of such forces absent the enactment of a subsequent specific 
     statutory authorization for such use of the United States 
     forces.
       Making good on this sense of Congress in any future AUMF 
     would go a long way toward fixing a pernicious problem that 
     has developed over the past few decades, as old AUMFs have 
     been construed to authorize wars against enemies that did not 
     exist at the time of their enactment and about which Congress 
     never deliberated. A sunset clause guards against that kind 
     of misuse and abuse. It should not be understood as an ``off 
     switch,'' but rather as a vote forcing mechanism. By shifting 
     the default away from forever authorizations, it ensures that 
     the peoples' representatives affirmatively debate and decide 
     whether the United States should be at war, and against whom, 
     as the Constitution intended. And it ensures that our troops 
     doing the fighting are foregrounded in these deliberations.


                         Who supports sunsets?

       First and foremost, Congress itself has supported sunsets 
     by enacting them into law in roughly one-third of past AUMFs 
     and declarations of war. Recent serious proposals for new 
     AUMFs have also included sunsets, including those supported, 
     and authored, by the executive branch: the ISIL-specific 
     draft AUMF President Obama sent to Congress in 2015 included 
     a three-year sunset clause.
       Second, former senior officials serving in administrations 
     of both political parties support sunsets. In May 2017, 
     former CIA and Department of Defense General Counsel Stephen 
     Preston advocated that a sunset clause shows the United 
     States is ``committed to the fight'' and ``committed to our 
     democratic institutions.'' On this score, Heather Brandon-
     Smith's overview of exchanges on the value of a sunset 
     provision in a July 2017 House Foreign Affairs Committee 
     hearing titled ``Authorization for the Use of Force and 
     Current Terrorist Threats'' is worth quoting in full:
       The witnesses were repeatedly asked whether a sunset 
     provision should be included in a new AUMF, with many members 
     of Congress--on both sides of the aisle--agreeing on the 
     merits of including a sunset. Both [former Attorney General 
     Michael] Mukasey and [former National Counterterrorism Center 
     Director Matthew] Olsen advocated in favor of sunsets . . . 
     ``As experts across the political spectrum have explained,'' 
     said Olsen, ``a sunset does not end the war. Rather, a sunset 
     signals to our partners and adversaries that the U.S. is 
     committed to using the force required to combat the current 
     threats we face, even as we sustain the fight for as long as 
     it takes.''
       Mukasey, who noted in his written statement that he does 
     not generally favor sunsets in the intelligence gathering or 
     counterterrorism authorities, advocated for a sunset in a new 
     AUMF. ``I favor a sunset provision,'' he said. ``I've favored 
     reconsidering the [2001] AUMF for years.''
       More recently, in March 2021, former Republican and 
     Democratic administration senior lawyers at a House Rules 
     Committee hearing on war powers (in which I testified), 
     agreed on the need to include sunset provisions in future 
     AUMFs. (Ryan Goodman, Steve Pomper, Steve Vladeck and I also 
     supported including a three-year sunset in our set of 
     principles for any new AUMF in 2021).
       Third, leading experts and former senior officials who have 
     considered how new AUMFs should be structured have long 
     endorsed inclusion of sunsets. A set of principles for a new 
     AUMF from leading legal experts Rosa Brooks, Sarah Cleveland, 
     Jen Daskal, Walter Dellinger, Ryan Goodman, Harold Hongju 
     Koh, Marty Lederman, and Steve Vladeck published in Just 
     Security in November 2014 endorsed a sunset. They explained 
     that sunsets, along with other constraints in the proposal, 
     avoid unnecessary wars and promote democratic accountability. 
     Eight years later, these are even more imperative goals.
       Another set of principles for a new AUMF from Ben Wittes, 
     Bobby Chesney, Jack Goldsmith, and Matt Waxman at Lawfare, 
     coincidentally released on the same day in Nov. 2014, 
     explicitly endorsed a three-year sunset to ``forc[e] Congress 
     to make an affirmative decision as to whether, and how, it 
     wants its blessing to continue.'' Indeed, inclusion of a 
     sunset is seen as a key point of consensus among these 
     leading proposals for any new AUMF.

[[Page E730]]

  



  But would a sunset help the enemy or hamstring the executive branch?

       At a House Foreign Affairs Committee hearing last March, an 
     administration witness surprisingly did not support the 
     inclusion of sunsets in AUMFs because ``we do not want to say 
     to our adversaries at some date if they just hold out they 
     can do whatever they please.'' The Biden administration 
     should shift that position--and embrace Reps. Lee and 
     Meijer's amendment--for at least three reasons.
       First, there's simply no reason to believe a congressional 
     reauthorization requirement, or sunset, would send such a 
     signal to an adversary. It is doubtful that adversaries in 
     foreign countries--often primarily engaged against non-U.S. 
     enemies--are at all concerned with U.S. domestic law 
     authorizations. But even if we were to try to glean external 
     signals from a domestic reauthorization requirement, as 
     former State Department Legal Adviser Harold Hongju Koh said 
     in 2015, ``a sunset is not a repeal; it need not even be read 
     as a proposal to repeal in the future. . . . A sunset is 
     simply a shared congressional-executive agreement to reassess 
     the situation together as a nation.''
       If anything, a reauthorization requirement shows that 
     Congress is paying attention to the war it has authorized and 
     will continue to do so. And notwithstanding legitimate 
     concerns of partisan Capitol Hill gridlock, Congress manages 
     to pass NDAAs, budgets, and other high-stakes legislation 
     when needed.
       Second, U.S. political leaders and the national security 
     institutions that support them make decisions about the scale 
     of U.S. involvement within and outside of conflict zones 
     based on a range of factors, including the severity and 
     immediacy of the threat, resource constraints, and the 
     willingness and reliability of partners on the ground to act. 
     A brief look at the past three presidential administrations 
     underscores this point: it was not the expiration of an AUMF 
     that caused President Biden to withdraw U.S. forces from 
     Afghanistan, Trump to announce withdrawal from Syria (before 
     reversing course), or Obama to withdraw from President George 
     W. Bush's war in Iraq.
       It bears emphasizing here that in any true emergency 
     situation, under threat of an imminent armed attack or in a 
     situation where U.S. nationals are in imminent peril abroad, 
     the president may rely on independent authority in Art. II of 
     the Constitution to act quickly (as most presidents in our 
     recent history have done), regardless of the existence of any 
     congressional authorization.
       Third, and arguably far more important than any potential 
     signal that might be sent to a foreign adversary, a 
     reauthorization requirement sends a very real and important 
     signal to our own troops: Congress supports the war effort 
     you are engaged in and has taken a tough vote to authorize 
     it. And if you are brave enough to fight, we are brave enough 
     to vote.
       A reauthorization requirement also signals--both internally 
     and externally--a commitment to our own democratic processes. 
     That commitment is now more important than ever for members 
     of Congress and the executive branch to embrace.

                          ____________________