[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
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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.
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