As concerns continue to develop over Russia’s attacks against Ukraine, Rep. Adam Kinzinger (IL-16) has responded by introducing a new authorization for use of military force (AUMF), which would give President Biden authority to use force should Russia deploy chemical, biological, or nuclear weapons.
While promoting his new proposal, Rep. Kinzinger himself said “I don’t think we need to be using force in Ukraine right now.” He framed his AUMF as a deterrent which would give President Biden “leverage” and “better flexibility.”
Rep. Kinzinger’s AUMF fails to reflect the lessons learned from the last 20 years.
Introducing an AUMF against Russia at this time, when de-escalation is critical, is a dangerous step in the wrong direction. Rather than debating the escalation of military action, Congress should be working with the Biden administration to pursue diplomatic measures that facilitate a ceasefire and negotiations between Russia and Ukraine to bring an end to the conflict as soon as possible.
Rep. Kinzinger’s proposal is not only premature—it is deeply flawed. The AUMF fails to reflect the lessons learned from the last 20 years, during which four administrations have vastly expanded military operations beyond congressional intent and with minimal congressional oversight using the post-9/11 2001 AUMF and 2002 Iraq AUMF. These lessons are reflected in proposals and principles provided by numerous bipartisan legal experts (for example, here, here, here, here, and here).
Rep. Kinzinger’s AUMF diverges from these experts’ recommendations in several key respects. In particular, it lacks specificity concerning who force may be used against and where, includes inadequate reporting requirements, and does not include an expiration date.
While the target and geography for this conflict might seem implicit and obvious, we have learned from experience with the 2001 and 2002 AUMFs that when an AUMF fails to name who force can be used against and where, it leaves the AUMF vulnerable to executive branch abuse. For example, the 2002 Iraq AUMF was clearly intended to authorize force against Saddam Hussein’s regime in Iraq. However, the executive branch has since claimed it also authorizes force against non-state groups outside Iraq, including ISIS in Syria, and most egregiously, invoked it to justify the targeted killing of Iranian general Qassem Soleimani.
Should Rep. Kinzinger’s AUMF become law, it would provide a permission slip for this or any future president to use force anywhere, against anyone as long as they deemed it “necessary and appropriate” to protect U.S. national security interests with respect to Ukraine and “to restore the territorial integrity of Ukraine.”
The AUMF’s reporting requirements replicate those from the 2002 Iraq AUMF, with the vague obligation for the president to submit reports to Congress every 60 days “on matters relevant to this joint resolution,” including “actions taken” and “the status of planning for efforts that are expected to be required after such actions are completed.” To properly keep Congress and the public informed about the scope and status of U.S. wars, any AUMF should include robust, specific, public reporting requirements, such as those set out by legal experts here.
The United States should be using all its diplomatic leverage to push for a ceasefire and bring an end to this devastating conflict
Finally, Rep. Kinzinger’s AUMF does not include an expiration or sunset date. Section 4 is misleadingly entitled “Sunset,” however, it permits the president to determine when the AUMF would expire, based on when the “President certifies to Congress that the territorial integrity of Ukraine has been restored.” This is not a true, temporal sunset and as such, does not serve the purpose of a sunset, which is to force the president and Congress to come together, evaluate the use of force, and have Congress—in accordance with its constitutional prerogative to “declare war”—make the determination about whether to re-authorize the use of force, refine the AUMF or let it expire. Rather than reasserting congressional war powers, Rep. Kinzinger’s AUMF would further transfer these powers to the president.
At a time when the de-escalation of force is desperately needed for the people of Ukraine, the United States should be using all its diplomatic leverage to push for a ceasefire and bring an end to this devastating conflict. We hope that members of Congress will focus on encouraging and facilitating this course, rather than engaging with this preemptive and flawed AUMF.
