[Senate Hearing 113-282]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 113-282
 
  THE LAW OF ARMED CONFLICT, THE USE OF MILITARY FORCE, AND THE 2001 
                AUTHORIZATION FOR USE OF MILITARY FORCE 

=======================================================================

                                HEARING

                               before the

                      COMMITTEE ON ARMED SERVICES
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 16, 2013

                               __________

         Printed for the use of the Committee on Armed Services


        Available via the World Wide Web: http://www.fdsys.gov/

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                      COMMITTEE ON ARMED SERVICES

                     CARL LEVIN, Michigan, Chairman

JACK REED, Rhode Island              JAMES M. INHOFE, Oklahoma
BILL NELSON, Florida                 JOHN McCAIN, Arizona
CLAIRE McCASKILL, Missouri           JEFF SESSIONS, Alabama
MARK UDALL, Colorado                 SAXBY CHAMBLISS, Georgia
KAY R. HAGAN, North Carolina         ROGER F. WICKER, Mississippi
JOE MANCHIN III, West Virginia       KELLY AYOTTE, New Hampshire
JEANNE SHAHEEN, New Hampshire        DEB FISCHER, Nebraska
KIRSTEN E. GILLIBRAND, New York      LINDSEY GRAHAM, South Carolina
RICHARD BLUMENTHAL, Connecticut      DAVID VITTER, Louisiana
JOE DONNELLY, Indiana                ROY BLUNT, Missouri
MAZIE K. HIRONO, Hawaii              MIKE LEE, Utah
TIM KAINE, Virginia                  TED CRUZ, Texas
ANGUS KING, Maine

                    Peter K. Levine, Staff Director

                John A. Bonsell, Minority Staff Director

                                  (ii)



                            C O N T E N T S

                               __________

                    CHRONOLOGICAL LIST OF WITNESSES

  The Law of Armed Conflict, the Use of Military Force, and the 2001 
                Authorization for Use of Military Force

                              may 16, 2013

                                                                   Page

Sheehan, Hon. Michael A., Assistant Secretary of Defense for 
  Special Operations/Low-Intensity Conflict, Department of 
  Defense; Accompanied by MG Michael K. Nagata, USA, Deputy 
  Director for Special Operations/Counterterrorism, J-37, Joint 
  Staff; and BG Richard C. Gross, JAGC, USA, Legal Counsel, 
  Chairman of the Joint Chiefs of Staff..........................     5
Taylor, Mr. Robert S., Acting General Counsel, Department of 
  Defense........................................................     6
Brooks, Ms. Rosa, Professor of Law, Georgetown University Law 
  Center.........................................................    53
Corn, Mr. Geoffrey, Professor of Law, South Texas College of Law.    87
Goldsmith, Mr. Jack, Professor of Law, Harvard Law School........   100
Roth, Mr. Kenneth, Executive Director, Human Rights Watch........   105
Stimson, Mr. Charles, Manager, National Security Law Program, The 
  Heritage Foundation............................................   111

                                 (iii)


  THE LAW OF ARMED CONFLICT, THE USE OF MILITARY FORCE, AND THE 2001 
                AUTHORIZATION FOR USE OF MILITARY FORCE

                              ----------                              


                         THURSDAY, MAY 16, 2013

                                       U.S. Senate,
                               Committee on Armed Services,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:36 a.m. in room 
SD-106, Dirksen Senate Office Building, Senator Carl Levin 
(chairman) presiding.
    Committee members present: Senators Levin, Reed, Udall, 
Gillibrand, Blumenthal, Donnelly, Kaine, King, Inhofe, McCain, 
Wicker, Ayotte, and Graham.
    Committee staff members present: Peter K. Levine, staff 
director; and Leah C. Brewer, nominations and hearings clerk.
    Majority staff members present: Michael J. Kuiken, 
professional staff member; William G.P. Monahan, counsel; 
Michael J. Noblet, professional staff member; and Russell L. 
Shaffer, counsel.
    Minority staff members present: John A. Bonsell, minority 
staff director; William S. Castle, minority general counsel; 
Thomas W. Goffus, professional staff member; and Natalie M. 
Nicolas, minority staff assistant.
    Staff assistants present: Daniel J. Harder and Jennifer R. 
Knowles.
    Committee members' assistants present: Carolyn Chuhta, 
assistant to Senator Reed; Casey Howard, assistant to Senator 
Udall; Moran Banai and Brooke Jamison, assistants to Senator 
Gillibrand; Ethan Saxon, assistant to Senator Blumenthal; Marta 
McLellan Ross, assistant to Senator Donnelly; Karen Courington, 
assistant to Senator Kaine; Steve Smith, assistant to Senator 
King; Joel Starr, assistant to Senator Inhofe; Christian Brose, 
assistant to Senator McCain; Lenwood Landrum, assistant to 
Senator Sessions; Todd Harmer, assistant to Senator Chambliss; 
Joseph Lai, assistant to Senator Wicker; Brad Bowman, assistant 
to Senator Ayotte; Craig Abele, assistant to Senator Graham; 
and Charles Prosch, assistant to Senator Blunt.

       OPENING STATEMENT OF SENATOR CARL LEVIN, CHAIRMAN

    Chairman Levin. Good morning, everybody.
    The committee meets today to receive testimony on the law 
of armed conflict and the use of military force, including the 
status of the 2001 Authorization for the Use of Military Force 
(AUMF).
    I would like to welcome our witnesses and thank them for 
their willingness to participate in a public discussion of a 
particularly complex, contested set of issues.
    We have two panels. First, we are going to hear from the 
Department of Defense (DOD) witnesses, including Michael 
Sheehan, Assistant Secretary of Defense for Special Operations 
and Low-Intensity Conflict; Robert Taylor, the Acting General 
Counsel of DOD; Major General Michael Nagata, the Deputy 
Director of the Joint Staff for Special Operations and 
Counterterrorism; and Brigadier General Richard Gross, the 
Legal Advisor to the Chairman of the Joint Chiefs of Staff.
    We will then hear from a panel of legal experts holding a 
variety of views from outside the Government.
    On September 18, 2001, Congress enacted a joint resolution 
authorizing the President 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, or 
harbored such organizations or persons.'' Again, this authority 
is referred to as the AUMF.
    Almost 12 years later now, the war in Afghanistan is 
winding down as we prepare to hand over security responsibility 
to Afghan forces, and it appears that that country no longer 
serves as a safe haven for al Qaeda attacks against the United 
States. Osama bin Laden is dead. Khalid Sheikh Mohammed is in 
captivity. The ranks of the al Qaeda leaders who planned and 
carried out the September 11 attacks have been severely 
degraded.
    We are planning to keep a force of perhaps 6,000 to 12,000 
after 2014 when all combat forces are to be out of Afghanistan. 
Also, we continue to hold detainees at Guantanamo Bay and at 
Bagram in Afghanistan, and our fight against al Qaeda continues 
not only in Afghanistan, but also in Pakistan, Yemen, and 
Somalia. This fight occasionally takes the form of targeted 
strikes against operational leaders of al Qaeda and associated 
forces, groups like al Qaeda in the Arabian Peninsula (AQAP) 
and al Shabaab in Somalia, many of which strikes are reportedly 
conducted by remotely piloted aircraft, or ``drones''. Also, 
there have been a number of terrorist attacks and attempted 
terrorist attacks against the United States that have not been 
conducted by groups affiliated with al Qaeda and that are 
presumably then not covered by the AUMF.
    Against this background, today's hearing will examine the 
legal basis for the use of military force in accordance with 
the law of armed conflict, including the use of drones. We have 
asked our witnesses to help us consider a number of questions 
including:
    What is the continuing vitality of the 2001 AUMF a dozen 
years after its enactment?
    How will we know when the current conflict is over?
    Does the AUMF extend to organizations which played no 
active role in the September 11 attacks and may not have even 
existed in 2001?
    Should the AUMF be extended or modified by legislation to 
cover groups not associated with al Qaeda?
    What is the legal basis for military action in countries 
like Yemen and Somalia which are far away from Afghanistan 
where the September 1 attacks were planned?
    What is the legal basis for drone strikes and should drone 
strikes be treated any differently than other uses of lethal 
military force?
    To what extent is it appropriate for U.S. Government 
entities, other than the U.S. Armed Forces, to use lethal force 
against al Qaeda and other terrorist organizations?
    Does the Law of Armed Conflict and/or the AUMF apply to any 
such use of force, for instance, by the Central Intelligence 
Agency (CIA)?
    Are the issues different if the individual or individuals 
being targeted are U.S. citizens who have joined an enemy 
force?
    What if that U.S. citizen is part of an armed attack from 
inside the United States, for instance, against a U.S. military 
facility?
    What is the role of Congress in overseeing the use of 
lethal force?
    How can the process be made more transparent without 
compromising sensitive national security information?
    These and related matters raise challenging questions and 
there is a wide range of views on the answers.
    For example, some believe that the AUMF does not authorize 
the use of force against groups like AQAP and al Shabaab which 
may have had little or nothing to do with the September 11, 
2001, attacks, while others believe that these groups are 
properly considered, ``legal targets by virtue of their 
association with al Qaeda.''
    Some believe that the AUMF is no longer valid and should be 
repealed, while others believe that it should be reaffirmed or 
expanded to authorize a worldwide conflict with a broad range 
of terrorist groups.
    Some believe that drone strikes are akin to extrajudicial 
killings, while others believe they are a type of legitimate 
military force governed by the same rules and principles as any 
other military force.
    Some, including this Senator, believe that U.S. citizens 
who join a foreign group to attack the United States can be 
treated as enemy combatants subject to the law of armed 
conflict; others do not.
    A public discussion of difficult legal and policy issues 
like these is important to the functioning of our democracy and 
can help provide a broader understanding of the legal basis for 
ongoing military actions around the world.
    Again, I welcome all of our witnesses today and look 
forward to your testimony on these important issues and call 
now on Senator Inhofe.

              STATEMENT OF SENATOR JAMES M. INHOFE

    Senator Inhofe. Thank you, Mr. Chairman.
    Since the attacks on September 11, the AUMF has provided a 
strong legal basis for our counterterrorism efforts around the 
world. It has been used by the Supreme Court as a primary 
justification for its rulings, permitting the holding of 
detainees at Guantanamo Bay and the military detention of 
American citizens who have joined al Qaeda.
    There is also consensus among the three branches of 
government that the AUMF continues to provide adequate 
authorization for military force against al Qaeda and its 
affiliates. After 10 years, a court battle is in rigorous 
debate. Here in Congress, I believe many would argue that AUMF 
has been and continues to be an effective tool in our efforts 
to keep America safe.
    As former General Counsel of DOD, Jeh Johnson said just a 
year ago, ``10 years later, the AUMF remains on the books and 
is still a viable authorization today.'' I have no reason to 
disagree with him. That is why I am greatly concerned that 
changes to the AUMF could have significant, unintended 
consequences and undermine our counterterrorism efforts.
    As this committee has heard from our most distinguished 
military and civilian leaders in recent months, al Qaeda 
continues to prove resilient. They are expanding their areas of 
operation in places like North Africa and the Middle East where 
they remain intent on attacking Americans.
    I know there are members that feel the way that I do, that 
the AUMF is an important resource and we need to at least 
maintain this baseline authority which underpins our ability to 
keep America safe, and because I know they value this resource, 
I look forward to hearing the arguments regarding this.
    This is my view. This is one of the rare times in my career 
that I come to a hearing where I am not convinced on either 
side, and maybe we are doing the right thing right now.
    I do worry about the unintended consequences. I think once 
you open it up, there may be members that have their own agenda 
that we might not agree with and might not prove best for 
America that would take advantage of the fact that it has 
opened up. We have a saying in Oklahoma that ``if it ain't 
broke, don't fix it.'' I do not think it is broke, but maybe we 
will find out today that it is.
    Thank you, Mr. Chairman.
    Chairman Levin. Thank you very much, Senator Inhofe.
    We will now call on our first panel. I believe the 
administration has a single statement, which is going to be 
presented by two witnesses. So, Secretary Sheehan, do you want 
to begin?
    Mr. Sheehan. Yes, Chairman Levin. We have one statement for 
the record by myself and the acting General Counsel, and we 
will also, both of us, make very short introductory remarks, if 
that is okay with you, sir.
    Chairman Levin. Are you speaking for all four witnesses, or 
are they going to have their own statements?
    Mr. Sheehan. No. We will just have two statements, and then 
we will open it up to questions.
    Chairman Levin. But you are not necessarily in your 
statement then speaking for all four? Just for the two of you?
    Mr. Sheehan. Yes, all four. Yes, sir.
    Chairman Levin. Thank you.
    Mr. Sheehan. Absolutely.
    Chairman Levin. If our other two witnesses later on want to 
differ with any part of it, I hope they will feel free to do 
that.
    Mr. Sheehan. Absolutely.
    Chairman Levin. Thank you, Secretary Sheehan.

 STATEMENT OF HON. MICHAEL A. SHEEHAN, ASSISTANT SECRETARY OF 
    DEFENSE FOR SPECIAL OPERATIONS/LOW-INTENSITY CONFLICT, 
  DEPARTMENT OF DEFENSE; ACCOMPANIED BY MG MICHAEL K. NAGATA, 
 USA, DEPUTY DIRECTOR FOR SPECIAL OPERATIONS/COUNTERTERRORISM, 
 J-37, JOINT STAFF; AND BG RICHARD C. GROSS, JAGC, USA, LEGAL 
         COUNSEL, CHAIRMAN OF THE JOINT CHIEFS OF STAFF

    Mr. Sheehan. Chairman Levin, Ranking Member Inhofe, and 
members of the committee, thank you for the opportunity to 
testify about the legal framework for the U.S. military 
operations to defend our Nation. This hearing is intended to 
focus on the laws of war specifically related to our 
counterterrorism policy.
    With me today are Acting General Counsel of DOD, Mr. Robert 
Taylor; Legal Counsel to the Chairman of the Joint Chiefs of 
Staff, Brigadier General Rich Gross; and J-37, Major General 
Mike Nagata.
    The panel discussed basically three things: first, the 
legal framework governing the use of military force; second, 
the law governing whom the U.S. military may target with 
military force in the current conflict against al Qaeda and 
associated forces; third, a process of review that informs the 
legal, policy, and military decisions regarding targeting and 
the administration's continued commitment to transparency.
    We have provided a longer statement for the record, as I 
mentioned. We will have some brief remarks and we will get to 
your questions. Mr. Taylor will focus primarily on the legal 
framework, and I would like to begin by describing the process 
by which we make decisions regarding targeting in the current 
armed conflict against al Qaeda and associated forces.
    As our statement describes more fully, when determining 
whom we may target in this war, we conduct a careful, fact-
intensive assessment to identify the individuals and groups 
that pose a threat to the United States. Subsequently, we do a 
thorough review to determine whether these individuals and 
groups are appropriately targetable for operations outside of 
Afghanistan. This review continues up the chain of command 
through the four-star combatant commander and all the way to 
the Secretary of Defense.
    Before the Secretary makes a decision, the proposal is 
reviewed by senior military and civilian advisors, including 
the Chairman of the Joint Chiefs and the General Counsel of 
DOD. The Secretary also receives input from senior officials 
and other departments and agencies before approving or 
requesting that the President approve a use of military force 
against al Qaeda, the Taliban, or an associated force outside 
of Afghanistan. Military orders implementing a final decision 
are then transmitted down through the military chain of command 
to the relevant forces that carry out such operations. This 
process includes rigorous safeguards to protect innocent 
civilians.
    In closing, I would like to note that this hearing is open 
and unclassified and, as a result, there will necessarily be 
some questions that we must take for the record to be answered 
in a classified setting. This administration has made 
significant efforts to increase transparency, but the public 
release of certain information such as intelligence-specific 
tactics and deliberate procedures could enable the enemy to 
avoid or manipulate our application of military force. 
Ultimately, we must maintain a delicate balance between 
transparency and protecting information from public disclosure 
for security reasons.
    Mr. Chairman, Ranking Member Inhofe, committee members, 
thank you for the opportunity to appear before you today to 
testify, and I will turn over the microphone to my colleague, 
Acting General Counsel Robert Taylor, for his remarks.
    Chairman Levin. Thank you very much, Secretary Sheehan.
    Mr. Taylor?

  STATEMENT OF MR. ROBERT S. TAYLOR, ACTING GENERAL COUNSEL, 
                     DEPARTMENT OF DEFENSE

    Mr. Taylor. Thank you, Chairman Levin, Ranking Member 
Inhofe, and members of the committee for this opportunity to 
testify about the legal framework for U.S. military operations 
to defend the country.
    As Assistant Secretary of Defense Sheehan stated, first I 
will give an overview of the legal framework governing the use 
of military force. Second, I will discuss the law governing 
whom the U.S. military may target with military force in the 
current conflict against al Qaeda and associated forces.
    The administration has outlined the legal framework for the 
current conflict in numerous public speeches, including 
speeches by Attorney General Holder and former DOD General 
Counsel Jeh Johnson, which should give some sense of the 
extraordinary care with which the U.S. military ensures that 
its efforts to address the threat posed by al Qaeda and its 
associated forces follow all applicable law in its military 
operations. That means that U.S. military operations must 
comply with both U.S. domestic law and international law.
    The United States remains in a state of armed conflict 
against al Qaeda, the Taliban, and associated forces. As the 
September 11, 2001, attack showed, these organizations are 
determined to kill U.S. citizens, and their actions since that 
time show that we continue to use military force to defend our 
Nation against this enemy.
    As a matter of domestic law, all three branches of our 
Government have recognized that the President may use military 
force in order to prosecute the conflict against al Qaeda, the 
Taliban, and associated forces. The AUMF, enacted 1 week after 
the attacks of September 11, explicitly authorizes the 
President to direct the use of military force in defending the 
Nation. In the AUMF, Congress authorized the President, ``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.'' Some have questioned whether we may 
continue to rely on the AUMF nearly 12 years after its 
enactment.
    As a matter of international law, the United States may use 
force in accordance with the Law of Armed Conflict in order to 
prosecute its armed conflict against al Qaeda, the Taliban, and 
associated forces in response to the September 11, 2001, 
attacks, and the United States may also use force consistent 
with our inherent right of national self-defense.
    We believe that there will eventually come a point when our 
enemy in this armed conflict, al Qaeda, the Taliban, and 
associated forces, is defeated and we are no longer in an armed 
conflict. At that point, the law enforcement and intelligence 
professionals will have the lead in our counterterrorism 
efforts against individuals who are the scattered remnants of 
al Qaeda or who are part of groups unaffiliated with al Qaeda 
with military tools available in reserve to defend the Nation 
against imminent terrorist attacks.
    But that is a point we have not yet reached. For now, the 
careful use of military force, alongside other counterterrorism 
tools, remains necessary and appropriate to disrupt, dismantle, 
and ensure a lasting defeat of al Qaeda, the Taliban, and 
associated forces.
    I believe that existing authorities are adequate for this 
armed conflict. Should a new group threaten us, the United 
States can, under both U.S. domestic and international law, 
respond as necessary. At that point, we would consult with 
Congress to determine whether additional tools have become 
necessary or appropriate.
    Some have also questioned the geographic scope of this 
conflict. The enemy in this conflict has not confined itself to 
the geographic boundaries of any one country. U.S. military 
operations on the territory of another state must comply with 
international law rules, including respect for another state's 
sovereignty. This does not prevent us from using force against 
our enemies outside an active battlefield, at least when the 
country involved consents or is unable or unwilling to take 
action against a serious threat.
    Now I would like to discuss whom we may target in this war 
against al Qaeda, the Taliban, an associated forces. We are in 
an armed conflict, and the Law of Armed Conflict applies to our 
operations. In this unconventional war, we apply conventional, 
well-established legal principles reflected in treaties and 
customary international law.
    The United States is not at war with an idea, a religion, 
or a tactic. Instead, we are at war against al Qaeda, the 
Taliban, and associated forces. Former DOD General Counsel Jeh 
Johnson has previously explained publicly the meaning of the 
phrase ``associated force.'' A group is an associated force if, 
first, it is an organized, armed group that has entered the 
fight alongside al Qaeda, and second, it is a co-belligerent 
with al Qaeda in hostilities against the United States or its 
coalition partners. Individuals who are part of this recognized 
enemy may be lawful military targets. Under the law of armed 
conflict, it is well-established that a state may target the 
enemy, including known, individual members of the enemy force.
    Some among the ranks of al Qaeda, the Taliban, and their 
associated forces are U.S. citizens planning attacks against 
their own country from abroad. Longstanding legal principles 
and court decisions confirm that being a U.S. citizen does not 
immunize a member of the enemy from attack. Nonetheless, if we 
know in advance that the object of our attack is a U.S. 
citizen, we assume the constitutional rights, including the 
Fifth Amendment's Due Process Clause, attach to a U.S. citizen 
even while he is abroad and we consider those rights in 
assessing whether that individual may be targeted.
    With respect to such a military operation, the due process 
requirements under the Fifth Amendment are satisfied at least 
when three criteria are met. First, an informed high-level 
official of the U.S. Government determines that the individual 
poses an imminent threat of violent attack against the United 
States. Whether a threat is imminent incorporates consideration 
of the relevant window of opportunity to act and the possible 
harm that missing that window would cause. Second, capture must 
be infeasible, and the United States will continue to monitor 
whether capture becomes feasible prior to any strike. This is a 
fact-specific inquiry that considers the relevant window of 
opportunity, whether the particular country would consent to a 
capture operation, and other factors such as the risk to U.S. 
personnel. Third, the operation must be conducted in a manner 
consistent with applicable law of armed conflict principles. We 
take extraordinary care to ensure that all military operations, 
not just the exceptional cases of those against U.S. citizens, 
are conducted in a manner consistent with well-established law 
of armed conflict principles, including: humanity, which 
forbids the unnecessary infliction of suffering, injury, or 
destruction; distinction, which requires that only lawful 
targets such as combatants and other military objectives, may 
be intentionally targeted; military necessity, which requires 
that the use of military force, including all measures needed 
to defeat the enemy as quickly and efficiently as possible, 
which are not themselves forbidden by the law of war, be 
directed at accomplishing a valid military purpose; and 
proportionality, which requires that the anticipated collateral 
damage of an attack not be excessive in relation to the 
anticipated concrete and direct military advantage from the 
attack.
    These well-established rules that govern the use of force 
in armed conflict apply regardless of the type of weapon system 
used. From a legal standpoint, the use of remotely piloted 
aircraft for lethal operations against identified individuals 
presents the same issues as similar operations using manned 
aircraft. However, advanced precision technology gives us a 
greater ability to observe and wait until the enemy is away 
from innocent civilians before launching a strike, and this 
minimizes the risk to innocent civilians. As Assistant 
Secretary Sheehan mentioned, before military force is used 
against members of al Qaeda, the Taliban, and associated 
forces, there is a robust review process that includes rigorous 
safeguards to protect innocent civilians.
    Thank you, I look forward to answering your questions along 
with my colleagues.
    [The joint prepared statement of Mr. Taylor, Mr. Sheehan, 
General Nagata, and General Gross follows:]
   Joint Prepared Statement by Mr. Robert S. Taylor, Hon. Michael A. 
 Sheehan, MG Michael K. Nagata, USA, and BG Richard C. Gross, JAGC, USA
    Thank you, Chairman Levin, Ranking Member Inhofe, and members of 
the committee, for this opportunity to testify about the legal 
framework for U.S. military operations to defend our Nation.
    First, we will give an overview of the legal framework governing 
the use of military force. Second, we will discuss the law governing 
whom the U.S. military may target with military force in the current 
conflict against al Qaeda and associated forces. Third, we will discuss 
the robust process of review that informs legal, policy, and military 
decisions regarding targeting, and the administration's continued 
commitment to transparency.
i. legal framework for u.s. military operations in the current conflict
    The administration has outlined the legal framework for the current 
conflict in numerous public speeches, including speeches by Attorney 
General Holder and former Department of Defense General Counsel Jeh 
Johnson, which should give you some sense of the extraordinary care 
with which the U.S. military ensures that its efforts to address the 
threat posed by al Qaeda and its associated forces follow all 
applicable law in its military operations. That means that U.S. 
military operations must comply with both U.S. domestic law and 
international law.
    Our legal framework recognizes that the United States remains in a 
state of armed conflict with al Qaeda, the Taliban, and associated 
forces. As the September 11, 2001 attacks showed, these organizations 
are determined to kill U.S. citizens, and we continue to use military 
force to defend our Nation against this enemy.
    As a matter of domestic law, all three branches of our Government 
have recognized that the President may use military force in order to 
prosecute the conflict against al Qaeda, the Taliban, and its 
associated forces. The Authorization for the Use of Military Force 
(AUMF), enacted 1 week after the attacks of September 11, 2001, 
explicitly authorizes the President to direct the use of military force 
in defending the Nation. In ``the AUMF,'' as it is often called, 
Congress authorized the President ``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.'' With this authorization, 
President Obama and President Bush before him, as Commanders in Chief, 
as well as four Secretaries of Defense, have directed military 
operations against al Qaeda, the Taliban, and associated forces.
    The AUMF reflects the recognition that we are in an armed conflict 
with this enemy. The Supreme Court and the Court of Appeals for the 
District of Columbia Circuit have also repeatedly recognized in a long 
string of cases that the United States can use military force in its 
armed conflict with al Qaeda.
    Some have questioned whether we may continue to rely on the AUMF 
nearly 12 years after its enactment. In the National Defense 
Authorization Act for Fiscal Year 2012, Congress reaffirmed the AUMF 
with respect to detention authority. In doing so, it mirrored the 
administration's interpretation of the AUMF as applying to al Qaeda, 
the Taliban, and associated forces and implicitly reaffirmed the 
continued applicability of the armed conflict paradigm that the AUMF 
represents.
    As a matter of international law, the United States may use force 
in accordance with the laws of war in order to prosecute its armed 
conflict with al Qaeda, the Taliban, and associated forces, in response 
to the September 11, 2001 attacks, and the United States may also use 
force consistent with our inherent right of national self-defense.
    Some have also questioned the geographic scope of this conflict. As 
John Brennan stated in a September 2011 speech, the ``United States 
does not view our authority to use military force against al Qaeda as 
being restricted solely to `hot' battlefields like Afghanistan.'' 
Indeed, the enemy in this conflict has not confined itself to the 
geographic boundaries of any one country. To that end, there is nothing 
in the AUMF that restricts the use of military force against al Qaeda 
to Afghanistan. Moreover, because ``we are engaged in an armed conflict 
with al Qaeda, the United States takes the legal position that--in 
accordance with international law--we have the authority to take action 
against al Qaeda and its associated forces without doing a separate 
self-defense analysis each time.''
    Nonetheless, the fact that we are in an armed conflict does not 
mean that the United States is using military force everywhere the 
enemy is found. In many countries, we need not contemplate military 
operations because an al Qaeda presence, once discovered, would be 
neutralized effectively by the Nation's law enforcement apparatus. In 
other countries, where al Qaeda's presence is more formidable, the 
foreign state or the United States might consider military action.
    Additionally, U.S. military operations on the territory of another 
state must comply with international law rules, including respect for 
another state's sovereignty, which do not prevent us from using force 
against our enemies outside an active battlefield, at least when the 
country involved consents or is unable or unwilling to take action 
against the threat.
    We believe that our military operations will ultimately degrade and 
dismantle the enemy's operational capacity and supporting networks. At 
that point, law enforcement and intelligence operations will be the 
primary tools in our counterterrorism efforts--against individuals who 
are the scattered remnants of al Qaeda, or who are part of groups 
unaffiliated with al Qaeda. Military direct action will always be an 
option for the President to defend the Nation against imminent 
terrorist attacks.
    But that is a point we have not yet reached. For now, the careful 
use of both unilateral and partnered military force, alongside other 
counterterrorism tools, remains necessary and appropriate to disrupt, 
dismantle, and ensure a lasting defeat of al Qaeda, the Taliban, and 
associated forces. Existing authorities are adequate for this armed 
conflict.
    Should a new group threaten us, the United States can, under both 
U.S. domestic and international law, respond as necessary. At that 
point, we would consult with Congress to determine whether additional 
tools are necessary or appropriate.
ii. targeting: whom does the u.s. military target and what legal rules 
                                 apply?
    Now, I would like to discuss whom we may target in this war against 
al Qaeda, the Taliban, and associated forces. We are in an armed 
conflict and the law of armed conflict applies to our operations. Al 
Qaeda is an unconventional enemy that, with blatant disregard for the 
law of armed conflict, targets innocent civilians. We nonetheless 
refuse to allow this enemy, with its inhumane tactics, to define the 
legal framework for waging war. Our efforts remain grounded in the law. 
In this unconventional war, we apply conventional legal principles--
well-established legal principles reflected in treaties and customary 
international law. We have held fast to our principles, laws, and 
values, even when facing unconventional threats.
    The United States is not at war with an idea, a religion, or a 
tactic. Instead, we are at war against al Qaeda, the Taliban, and 
associated forces. The former General Counsel of the Department of 
Defense, Jeh Johnson, has previously explained publicly the meaning of 
the phrase ``associated force.'' A group is an associated force, if, 
first, it is an organized, armed group that has entered the fight 
alongside al Qaeda; and, second, it is a co-belligerent with al Qaeda 
in hostilities against the United States or its coalition partners. 
Individuals who are part of this recognized enemy may be lawful 
military targets.
    In applying these principles in this armed conflict, we conduct a 
careful, fact-intensive assessment to distinguish between, on the one 
hand, a terrorist who effectively becomes part of al Qaeda, the 
Taliban, or an associated force by training or co-locating with the 
group, accepting orders from its leaders, and participating in the 
group's terrorist plotting, and, on the other hand, the terrorist, who 
without any direct connection to a member of al Qaeda, embraces 
extremist ideology found on the internet and self-radicalizes. Both are 
very dangerous, but the former is part of the congressionally-declared 
enemy force in a congressionally-authorized armed conflict; the latter, 
although dangerous, is not part of that enemy force.
    Under the law of armed conflict, it is well-established that a 
State may target the enemy, including known, individual members of the 
enemy force. For example, during World War II, U.S. Navy forces 
lawfully shot down the aircraft of Admiral Yamamoto, the commander of 
the Japanese navy. Today, just as in 1943, the use of lethal force 
against a particular leader of the enemy force in an ongoing armed 
conflict is entirely consistent with settled law of armed conflict 
principles governing who may be the object of attack.
    Unfortunately, however, some among the ranks of al Qaeda, the 
Taliban, and their associated forces are U.S. citizens planning attacks 
against their own country from abroad. This, too, has historical 
precedent. In previous conflicts, U.S. citizens have fought in foreign 
armies against the United States--such as with the Axis countries 
during World War II. Longstanding legal principles and court decisions 
confirm that being a U.S. citizen does not immunize a member of the 
enemy from attack. Nonetheless, if we know in advance that the object 
of our attack is a U.S. citizen, we assume that constitutional rights--
including the Fifth Amendment's Due Process Clause--attach to a U.S. 
citizen even while he is abroad, and we consider those rights in 
assessing whether that individual may be targeted.
    With regard to the targeting with lethal force of a U.S. citizen in 
a foreign country who is a senior operational al Qaeda leader actively 
engaged in planning operations to kill Americans, given the realities 
of our conflict with al Qaeda and the weight of the government's 
interest in protecting its citizens from imminent attack, such an 
operation would be lawful at least when three criteria are met. First, 
an informed, high-level official of the U.S. Government determines that 
the individual poses an imminent threat of violent attack against the 
United States. Whether a threat is ``imminent'' incorporates 
consideration of the relevant window of opportunity to act, the 
possible harm that missing the window would cause to civilians, and the 
likelihood of heading off future disastrous attacks against the United 
States. Second, capture is infeasible, and the United States will 
continue to monitor whether capture becomes feasible prior to any 
strike. This is a fact-specific inquiry, but considers the relevant 
window of opportunity, whether the particular country would consent to 
a capture operation, and other factors, such as the risk to U.S. 
personnel. Finally, the operation is conducted in a manner consistent 
with applicable law of armed conflict principles.
    With respect to this last criterion, we take extraordinary care to 
ensure that all military operations--not just the exceptional cases of 
those against U.S. citizens--are conducted in a manner consistent with 
well-established law of armed conflict principles, including: (1) 
military necessity, which requires that the use of military force 
(including all measures needed to defeat the enemy as quickly and 
efficiently as possible, which are not forbidden by the law of war) be 
directed at accomplishing a valid military purpose; (2) humanity, which 
forbids the unnecessary infliction of suffering, injury, or 
destruction; (3) distinction, which requires that only lawful targets--
such as combatants and other military objectives--may be intentionally 
targeted; and (4) proportionality, which requires that the anticipated 
collateral damage of an attack not be excessive in relation to the 
anticipated concrete and direct military advantage from the attack.
    These well-established rules that govern the use of force in armed 
conflict apply regardless of the type of weapon system used. From a 
legal standpoint, the use of remotely piloted aircraft for lethal 
operations against identified individuals presents the same issues as 
similar operations using manned aircraft. However, advanced precision 
technology gives us a greater ability to observe and wait until the 
enemy is away from innocent civilians before launching a strike, and 
thus minimize the risk to innocent civilians.
          iii. management and oversight of military operations
    Before military force is used against members of al Qaeda, the 
Taliban, and associated forces, there is a robust review process, which 
includes rigorous safeguards to protect innocent civilians. Throughout 
the military chain of command, senior commanders, advised by trained 
and experienced staffs--including intelligence officers, operations 
officers, and judge advocates--review operations for compliance with 
applicable U.S. domestic and international law, including the law of 
armed conflict, and for consistency with the policies and orders of 
superiors in the military chain of command.
    For operations outside Afghanistan, this review continues up the 
chain of command, through the 4-star combatant commander, to the 
Secretary of Defense. Before the Secretary makes a decision, the 
proposal is reviewed by senior military and civilian advisors, 
including the Chairman of the Joint Chiefs of Staff and the General 
Counsel of the Department of Defense. Department officials also receive 
input from senior officials in other departments and agencies from 
across our national security team. Military orders implementing a final 
decision are then transmitted down that chain of command to the 
relevant forces that carry out such operations.
    Some have expressed concern that the process for managing military 
operations, no matter how rigorous, is largely confined to the 
executive branch. This fact reflects related practical and legal 
considerations. As a practical matter, officials in the military chain 
of command must often make real-time decisions that balance the need to 
act, the existence of alternative options, the possibility of 
collateral damage, and other factors--all of which depend on expertise 
and immediate access to information that only the executive branch may 
possess in real time.
    As a legal matter, Article II of the Constitution makes the 
President the Commander in Chief of the Armed Forces. The President is 
therefore responsible for directing military operations in the 
prosecution of armed conflict. By U.S. law, the military chain of 
command runs from the President to the Secretary of Defense and then to 
combatant commanders. The current process appropriately reflects the 
President's role in the chain of command; alternatives that some have 
suggested would present significant constitutional issues.
    Congress also plays a critical role in ensuring appropriate 
oversight of this process. The Department and the Joint Staff regularly 
brief members and staff of this committee and the House Armed Services 
Committee on military operations against al Qaeda, the Taliban, and 
associated forces, both on the prosecution of the conflict generally 
and specifically on each significant counterterrorism operation 
conducted outside Afghanistan.
    We have also made significant efforts to increase transparency 
regarding whom the U.S. military targets in the current conflict 
against al Qaeda, the Taliban, and associated forces and the procedures 
by which individual targeting decisions are made. Last year, for 
example, we declassified information about the U.S. military's 
counterterrorism activities in Yemen and Somalia in a June 2012 War 
Powers report to Congress. This type of transparency helps preserve 
public confidence, dispel misconceptions that the U.S. military targets 
low-level terrorists who pose no threat to the United States, and 
address questions raised by our allies and partners abroad. On the 
other hand, the public release of certain information, such as the 
intelligence by which current or past targets were identified, could 
enable the enemy to avoid or manipulate our application of military 
force. Ultimately, we must maintain a delicate balance between 
transparency and protecting information from public disclosure for 
security reasons.
    Thank you. We look forward to answering your questions.

    Chairman Levin. Thank you very much, Mr. Taylor.
    We are going to have a 6-minute first round here and there 
may be the need for a second round. But we have a lot of 
Senators and a lot of witnesses and a second panel. So we are 
going to give it a go at 6 minutes for the first round.
    Let me start with you, Secretary Sheehan. In the view of 
the administration, should the AUMF be expanded or modified to 
cover terrorist groups that are not associated with al Qaeda or 
for any other reason?
    Mr. Sheehan. Thank you, Mr. Chairman.
    At this point, we are comfortable with the AUMF as it is 
currently structured. Right now, it does not inhibit us from 
prosecuting the war against al Qaeda and its affiliates. If we 
were to find a group or organization that was targeting the 
United States, first of all, we would have other authorities to 
deal with that situation. I was in the government prior to 
September 11 when we conducted strikes against groups before we 
had the AUMF specific post-September 11 authority. So, we could 
use other authorities to take on those types of organizations. 
But for right now, for our war against al Qaeda, the Taliban, 
and their affiliates, AUMF serves its purpose.
    Chairman Levin. Now, under the definition of ``enemy,'' do 
you agree that mere sympathy with al Qaeda is not sufficient to 
be an associated force for purposes of the AUMF?
    Mr. Sheehan. Yes, Senator. Sympathy is not enough. As Jeh 
Johnson and others have mentioned in public, it has to be an 
organized group, and that group has to be in co-belligerent 
status with al Qaeda, operating against the United States.
    Chairman Levin. Is there any good reason why both Congress 
and the public should not be informed of which organizations 
and entities the administration has determined to be co-
belligerents of al Qaeda and to promptly be informed of any 
additions or deletions from that list?
    Mr. Sheehan. Senator, I think that the appropriate role for 
Congress is in its oversight regarding the designation of 
groups. A lot of these groups have very murky membership and 
they also have very murky alliances and shifting alliances. 
They change their name and they lie and obfuscate their 
activities. So I think it would be difficult for Congress to 
get involved in trying to track the designation of which are 
the affiliate forces. We know when we evaluate these forces 
what they are up to, and we make that determination based on 
their co-belligerent status with al Qaeda and make our 
targeting decisions based on that criteria rather than on the 
shifting nature of different groups and their affiliations.
    Chairman Levin. Is there a list now? Is there an existing 
list of groups that are affiliated with al Qaeda?
    Mr. Sheehan. Senator, I am not sure there is a list per se. 
I am very familiar with the organizations that we do right now 
consider as affiliated with al Qaeda, and I could provide you 
that list of organizations.
    Chairman Levin. Would you give us that list?
    Mr. Sheehan. Yes, sir. We can do that.
    [The information referred to follows:]

    In response to this request, we provided a classified paper to 
Senator Levin's staff on al Qaeda, the Taliban, and associated forces.

    Chairman Levin. When you add or subtract names from that 
list, would you let us know?
    Mr. Sheehan. We can do that as well, Mr. Chairman.
    Chairman Levin. Thank you.
    The former General Counsel for the DOD, Jeh Johnson, said 
that there will come a tipping point at which we are going to 
be able to determine that the armed conflict with al Qaeda is 
effectively over. I think you are probably familiar with that 
speech.
    Do you agree with Mr. Johnson's description of an eventual 
tipping point when the armed conflict with al Qaeda will be 
essentially over?
    Mr. Sheehan. I do, Mr. Chairman. I believe that al Qaeda, 
although its narrative is very powerful among certain groups, 
ultimately will end up on the ash heap of history, as with 
other previous groups. But that day, unfortunately, is a long 
way off.
    Chairman Levin. So the tipping point that you say would 
come is a long way off in your judgment.
    Mr. Sheehan. Yes, sir. I believe it is at least years in 
advance based on my understanding of the organizational 
resiliency of al Qaeda and its affiliate forces. It is many 
years in advance.
    Chairman Levin. Now, if that point comes and when that 
point comes, what do you do with people like Khalid Sheikh 
Mohammed who have proven with deeds that they would, if they 
are released, attack us again?
    Mr. Sheehan. Senator, I believe that those folks that we 
already have under custody that are tried and jailed, hopefully 
will remain behind bars and not be able to threaten Americans 
in the future.
    Chairman Levin. So they must be tried.
    Mr. Sheehan. Yes, sir. That is our objective.
    Chairman Levin. In order for them to be detained after the 
tipping point comes and the war is over.
    Mr. Sheehan. Yes, sir. That would be the ideal. Yes, sir.
    Chairman Levin. If they are not tried and they are detained 
and the tipping point comes, what is the basis for detaining 
them unless they have been tried and convicted in a military 
court or a civilian court?
    Mr. Sheehan. Let me make sure I understand your question, 
Mr. Chairman. You are talking about after the AUMF is no longer 
in effect?
    Chairman Levin. Right.
    Mr. Sheehan. Again, Mr. Chairman, even prior to the AUMF, 
we were able to arrest people and try them and bring them back 
to the United States with great efficacy prior to September 11.
    Chairman Levin. No. What I am saying is that they need to 
be tried and convicted for them to continue to be detained if 
and when the AUMF is no longer in force.
    Mr. Sheehan. That would be my understanding. Yes, sir. I 
would defer to Bob Taylor if he wants to verify that.
    Chairman Levin. Is that correct, Mr. Taylor?
    Mr. Taylor. There will come a point when our enemy in this 
armed conflict is defeated or so defeated that there is no 
longer an ongoing armed conflict. At that point, we will face 
difficult questions about what to do with those still remaining 
in military detention without a criminal conviction and 
sentence. However, I will point out that following World War 
II, we continued to hold some people for several years as part 
of a general mopping-up authority.
    Chairman Levin. Were they being held for war crimes? Were 
they being held for trial for war crimes?
    Mr. Taylor. No, sir. They were prisoners of war but who 
were assessed that they would so disrupt the delicate situation 
back in Germany and elsewhere that we held them for a few 
years. We are not talking ad infinitum, but as part of a 
general mop-up authority.
    Chairman Levin. Will you, for the record, give us that 
authority?
    Mr. Taylor. We will give you the historical----
    Chairman Levin. No, not just the history, the authority. 
Would you do that, Mr. Taylor?
    Mr. Taylor. Yes.
    [The information referred to follows:]

    The military's authority to detain under the law of war generally 
ends with the cessation of hostilities. See Hamdi v. Rumsfeld, 542 U.S. 
507, 521 (2004) (plurality); National Defense Authorization Act for 
Fiscal Year 2012, Pub. L. No. 112-81, Sec. 1021, 125 Stat. 1297, 1562 
(2011) (affirming ``[d]etention under the law of war without trial 
until the end of the hostilities authorized by the Authorization for 
Use of Military Force''). However, the practice of nations under the 
law of war has reflected, and U.S. courts have accepted, that there is 
at least a limited authority to detain certain individuals for a period 
following the end of hostilities. This authority includes, inter alia, 
the ability to facilitate the safe and orderly transfer or release of 
detainees and to detain certain individuals to prosecute them for 
offenses committed during the hostilities. There clearly exists an 
authority to continue to detain individuals to facilitate their safe 
and orderly transfer or release. See Oscar M. Uhler et al., Int'l Comm. 
of the Red Cross, IV Geneva Convention Relative to the Protection of 
Civilian Persons in Time of War: Commentary 515 (JeanS. Pictet ed., 
Ronald Griffin & C.W. Dumbleton trans., 1958) (Article 133's 
requirement that ``[i]nternment shall cease as soon as possible after 
the close of hostilities'' ``does not mean, in spite of the urgent wish 
thus expressed, that internment can always be brought to an end shortly 
after the end of active hostilities. . . . The disorganization caused 
by war may quite possibly involve some delay before the return to 
normal.''); Jean de Preux et al., Int'l Comm. of the Red Cross, III 
Geneva Convention Relative to the Treatment of Prisoners of War: 
Commentary 550 (JeanS. Pictet ed., A.P. de Heney trans., 1960) 
(explaining that the repatriation requirement of article 118 ``does 
not, of course, affect the practical arrangements which must be made so 
that repatriation may take place in conditions consistent with 
humanitarian rules and the requirements of the convention. . . ''). 
This authority is necessary to meet the fundamental obligation under 
the law of war that detainees be humanely treated. For example, the 
United States continued to detain prisoners of war for a few years 
after the surrender of the Axis powers in World War II. See, e.g., In 
re Territo, 156 F.2d 142, 147-48 (9th Cir. 1946). The delay in the 
repatriation of more than 400,000 enemy prisoners of war held in the 
United States during World War II resulted from ``manpower and 
transportation shortages, because the war was still being fought 
against Japan, and because of the inability on the part of the European 
and Mediterranean theaters to receive prisoners of war from the United 
States in large numbers.'' Martin Tollefson, Enemy Prisoners of War, 32 
Iowa Law Review 51, 74 (1946). This detention authority also includes 
the authority to detain enemy persons after the cessation of 
hostilities when criminal proceedings are pending for offenses 
committed during the hostilities. Geneva Convention Relative to the 
Treatment of Prisoners of War, August 12, 1949, art. 119 (``Prisoners 
of war against whom criminal proceedings for an indictable offence are 
pending may be detained until the end of such proceedings, and, if 
necessary, until the completion of the punishment'' even after the 
cessation of international armed conflict; ``[t]he same shall apply to 
prisoners of war already convicted for an indictable offense.''); 
Geneva Convention Relative to the Protection of Civilian Persons in 
Time of War, August 12, 1949, art. 133 (``Internees . . . against whom 
penal proceedings are pending . . . may be detained until the close of 
such proceedings and, if circumstances require, until the completion of 
the penalty. The same shall apply to internees who have been previously 
sentenced to a punishment depriving them of liberty.''). Indeed, the 
Supreme Court has recognized that some authority to try violations of 
the law of war must continue after the cessation of hostilities in part 
because ``only after their cessation could the greater number of 
offenders and the principal ones be apprehended and subjected to 
trial.'' In re Yamashita, 327 U.S. 1, 12 (1946); see also Johnson v. 
Eisentrager, 339 U.S. 763 (1950) (denying writ of habeas corpus to 
German citizens taken into custody in China and tried by military 
commission after the Japanese surrender for providing intelligence to 
Japanese armed forces after Germany's surrender).

    Chairman Levin. Thank you.
    Senator Inhofe.
    Senator Inhofe Thank you, Mr. Chairman.
    Mr. Secretary, this committee is consistently briefed by 
the servicemembers about their operations against al Qaeda and 
their affiliates. During these briefings, we routinely ask the 
members of the military what more do they need to carry out 
their mission whether that is equipment or changes in policy. 
Over the past 10 years, I have never been told by those who are 
fighting the war that they lacked the legal authority to 
conduct their missions.
    As Assistant Secretary for Special Operations/Low-Intensity 
Conflict, have you encountered a situation in the fight against 
al Qaeda where you believed the special operations community 
did not have sufficient legal authority to prosecute the war 
against al Qaeda or its affiliates?
    Mr. Sheehan. Senator Inhofe, in the year and a half I have 
been in this job, I have not yet once found that we did not 
have enough legal authority within DOD to prosecute----
    Senator Inhofe. Can you envision a set of circumstances, it 
is something that is kind of hard to do and deal with the 
hypotheticals, that we would not have the authority that we 
need?
    Mr. Sheehan. You are right, Senator. I would not want to 
engage in hypotheticals.
    But I would say that if a terrorist organization outside of 
al Qaeda, the Taliban, and associated forces began to present a 
threat to the United States, did not fit under our current 
AUMF, then we might have to look at different authorities or 
extended authority or adjustment to authority to go after that 
organization. But right now, I do not see that case.
    Senator Inhofe. Yes. The two generals who did not give the 
opening statement, have you ever encountered a situation where 
the Joint Staff believed it did not have sufficient authority 
under AUMF to carry out its operations from your perspective 
against al Qaeda or its affiliates? Both generals.
    General Nagata. Sir, in my position on behalf of the 
chairman, I monitor the implementation of the various 
counterterrorism missions, orders, and direction that the 
combatant commands are given by the Secretary. I have been in 
this position now for about 18 months, and in this monitoring 
role that I conduct, I have not yet encountered a situation 
where there was insufficient legal authority for the combatant 
commander to execute the mission or the direction he has been 
given.
    Senator Inhofe. General Gross?
    General Gross. Senator, I would agree with that. Both in my 
time as the Staff Judge Advocate at Central Command and my time 
as the Legal Counsel to the Chairman, I have not seen a 
situation where there was not some legal authority to be able 
to go after members of al Qaeda or associated forces.
    Senator Inhofe. Do both of you agree with the opening 
statements that were made by the Secretary and Mr. Taylor?
    General Nagata. I do, Senator.
    General Gross. Sir, I do as well.
    Senator Inhofe. I have been distressed for a long period of 
time. I know it is not a popular position to take, but the fact 
that we have a great resource in Guantanamo Bay that has not 
been utilized properly. I know the arguments on both sides of 
this thing, but when something like this comes up or we talk 
about detention, that is what is in the back of my mind. I do 
not have a question about that, but I may be asking you some 
things in writing concerning that.
    The chairman quoted Jeh Johnson. Let me quote Jeh Johnson 
again as I did in my opening statement and ask the four of you 
if you agree with Jeh Johnson's statement when he said--and 
this is a quote, he said, ``10 years later the AUMF remains on 
the books and is still a viable authorization today.'' Do all 
four of you, one at a time, agree with that statement?
    Mr. Taylor. Yes, sir.
    Mr. Sheehan. Yes, sir.
    General Nagata. I do, sir.
    General Gross. I do as well, Senator.
    Senator Inhofe. Thank you, Mr. Chairman.
    Chairman Levin. Thank you very much, Senator Inhofe.
    Senator Reed.
    Senator Reed. Thank you very much.
    Secretary Sheehan or Mr. Taylor, I think this echoes one of 
the questions that the chairman raised. I presume that it is 
ultimately the President who designates who or what is an 
associated force of al Qaeda. Is that correct?
    Mr. Sheehan. Within the AUMF, I believe we do that. Within 
the Pentagon we designate that, sir.
    Senator Reed. So within the Pentagon you will designate 
that group or individual?
    Mr. Taylor. It might begin at the Pentagon, but it would be 
considered through the interagency.
    Senator Reed. But going back, the decision will ultimately 
be made by the President or made by the interagency?
    Mr. Taylor. The decision to take military action would be 
subject to the President.
    Senator Reed. Obviously.
    Mr. Taylor. But the legal conclusion that this is an 
associated force is something that would be a lawyer's 
judgment. Whether there is any policy consequence of that would 
be up to the policymakers.
    Senator Reed. But the reality would be the Secretary of 
Defense then up to the President would be presented with 
operational plans, but the decision would already have been 
made that this group or this individual is in an associated 
force of al Qaeda. Is that the way it works?
    Mr. Sheehan. The issue of affiliated force has not gone to 
the presidential level, Senator. That issue is managed at a 
much lower level.
    Senator Reed. Should that issue be shared with Congress, 
obviously in a classified setting? Should Congress have the 
ability to confirm or reject?
    Mr. Sheehan. Yes, sir. The chairman specifically asked me 
about that, which groups we now consider part of the affiliated 
force, and I committed to him that I would provide that to him, 
as well as any changes that we had.
    Senator Reed. My question is: would it be appropriate for 
Congress to have a role in not just reviewing, but deciding?
    Mr. Sheehan. Right, sir. I would think that is a decision 
better for the executive branch. As I mentioned to the 
chairman, these organizations right now are quite savvy in 
regards to how they are perceived overseas, and so they are 
always shifting their rhetoric, names, and affiliations. I 
think that is better left to the executive branch.
    Senator Reed. Thank you.
    Let me ask a question. There are operationally military 
personnel under title 10. There are intelligence personnel 
under title 50. I presume, at least hypothetically, there could 
be occasions where both are being used in terms of operations. 
Does the AUMF give you more flexibility to operate with these 
different legislative requirements, slightly different for 
title 10, slightly different in title 50? If AUMF was pulled 
back, would you have operational problems in terms of what 
could be done under title 10 versus what could be done under 
title 50 or what could be done jointly?
    Mr. Sheehan. That is a good question, Senator.
    Go ahead, Bob.
    Mr. Taylor. The AUMF is our domestic law authority for 
considering ourselves to be in armed conflict with al Qaeda, 
the Taliban, and associated forces. So if the AUMF were to be 
repealed, we would not be in an armed conflict, and it would 
absolutely affect our title 10 authorities.
    Senator Reed. It would be significantly affecting title 10.
    Some people, for example, have suggested that unmanned 
aerial strikes be shifted totally to title 10 authority. If 
AUMF did not exist and you did something like that, 
operationally that would have an effect on where you could 
strike and who you could strike. Is that a fair conclusion?
    Mr. Taylor. Yes, it would.
    Senator Reed. Thank you.
    Let me also raise another question, Mr. Taylor, which I 
think came up in your testimony. I think you focused your 
discussion on high-value individual attacks, but there is 
another type of attack which is described, at least in the 
press, as a signature attack. As I understand it, there are 
indications that there is a very high concentration of either 
al Qaeda or associated forces. Is there a legal distinction 
between those two attacks right now, and would there be a legal 
distinction if the AUMF was altered?
    Mr. Taylor. Attack against an enemy force is something that 
is consistent with the law of armed conflict. The law of armed 
conflict in this is tied to the AUMF. So if the AUMF were 
repealed, it would absolutely affect our ability to engage in 
those sorts of attacks. The law of armed conflict provides 
authority that we have not fully utilized. Our approach is more 
focused for many policy reasons, but as a legal matter, under 
the law of armed conflict, it is not necessary to identify 
particular leaders and we can go after the enemy, the military 
forces of the enemy, without being focused on the leadership. 
But we are, indeed, focused on the leadership.
    Senator Reed. Thank you very much.
    Thank you, Mr. Chairman.
    Chairman Levin. Thank you, Senator Reed.
    Senator McCain.
    Senator McCain. Just to follow up, Mr. Taylor, we are not 
talking about the law of armed conflict. We are talking about 
the role of Congress in authorizing the use of military force 
by the executive branch. So I appreciate your comments about 
the law of armed conflict, but that is not what this hearing is 
about.
    This hearing is about a resolution that was passed coming 
up on 12 years ago, and I think it is important for all of my 
colleagues to read that again, which says ``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, or harbored such organizations 
or persons in order to prevent any future acts of international 
terrorism against the United States by such nations, 
organizations.'' This authorization was about those who planned 
and orchestrated the attacks of 2001.
    Here we are 12 years later and you and the Secretary come 
before us and tell us that you do not think it needs to be 
updated. Well, clearly it does, and I would refer you to this 
morning's Washington Post editorial revising the terms of war, 
the authorization to use force against al Qaeda should be 
updated, not discarded. Because it has been so long and General 
Nagata, you would agree the nature of this conflict has changed 
dramatically, spread throughout northern Africa and the 
Maghreb, and penetrated into other nations all throughout the 
Middle East. The situation has dramatically changed. So for you 
to come here and say we do not need to change it or revise or 
update it I think is disturbing.
    That is why we have people like Senator Dick Durbin, one of 
the highly respected individuals, I quote Senator Durbin: 
``None of us, not one who voted for the AUMF, could have 
envisioned we were about to give future Presidents the 
authority to fight terrorism as far flung as Yemen and 
Somalia.''
    Mr. Taylor, in your legal opinion, could the 2001 AUMF be 
read to authorize lethal force against al Qaeda's associated 
forces in additional countries where they are now present, such 
as Somalia, Libya, and Syria?
    Mr. Taylor. As I indicated, we must comply with domestic 
law----
    Senator McCain. I think it is a pretty straightforward 
question, Mr. Taylor.
    Mr. Taylor. On the domestic law side, yes, sir.
    Senator McCain. You believe that the 2001 AUMF authorizes 
lethal force against al Qaeda associated forces in Mali, Libya, 
and Syria. So we can expect drone strikes into Syria if we find 
al Qaeda there?
    Mr. Taylor. On the domestic law side, sir. I hate to 
speculate on a hypothetical, but----
    Senator McCain. In your view, the President has the 
authority to do that.
    Mr. Taylor. In my view, the AUMF authorizes us to be at war 
with al Qaeda, the organization behind the September 11, 2001, 
attacks, and that organization continues and it has associated 
forces, forces that have joined with that organization. Yes, 
sir, we are authorized to attack those who have chosen to 
associate with that organization.
    Senator McCain. You rightly say in your statement that the 
2012 NDAA reaffirmed the AUMF with respect to the authority to 
detain al Qaeda, Taliban, and associated forces. Is the 
authority to detain the same as the authority to kill? Because 
that was not in the defense bill.
    Mr. Taylor. It is related. It is not the same.
    Senator McCain. Would it not be helpful to DOD and the 
American people if we updated the AUMF to make it more 
explicitly consistent with the realities today which are 
dramatically different from what they were on that fateful day 
in New York and Washington?
    Mr. Sheehan. Senator, I think there is a good case to be 
made that we should review this as the war goes on, and we have 
reviewed it. As of right now, I believe it suits us very well, 
and if there comes an opportunity where we need other 
authorities, we should come forward for those.
    I would like to add, though, that the al Qaeda that 
attacked us on September 11, 2001, was an al Qaeda that 
previously attacked us from East Africa, from Yemen.
    Senator McCain. Yes, but that is not what the authorization 
states, Mr. Secretary. I know of all those things. So I 
appreciate that. I have only got 52 seconds left.
    We are now killing people in the Haqqani Network, right? Is 
that correct, Mr. Secretary? The reason why I bring that up, we 
did not even designate the Haqqani Network as a terrorist 
organization until 2012. There are published reports, which are 
not as a result of classified briefings that I have had, that 
we killed people where their direct association with al Qaeda 
is tenuous. In fact, there is one story that we killed somebody 
in return for the Pakistanis to kill somebody.
    As you stated, Congress is briefed from time to time, and I 
appreciate that. But the fact is that this authority, which I 
just read to you, has grown way out of proportion and is no 
longer applicable to the conditions that motivated the U.S. 
Congress to pass the AUMF in 2001.
    So I must say I do not blame you because basically you have 
carte blanche as to what you are doing throughout the world, 
and we believe it does not need to be repealed. But it is hard 
for me to understand why you would oppose a revision of the 
AUMF in light of the dramatically changed landscape that we 
have in this war on Islamic extremism, al Qaeda, and others. It 
needs to be done, and I hope that this committee will address 
it either in a separate fashion or as part of the annual 
National Defense Authorization Act (NDAA).
    I thank you, Mr. Chairman.
    Chairman Levin. Thank you, Senator McCain.
    Senator Udall.
    Senator Udall. Thank you, Mr. Chairman.
    Good morning, gentlemen. I want to start with a question 
for each of you in turn. It is a yes or no question. Let me 
lead into it.
    In 2011, the House Armed Services Committee included a new 
AUMF in the NDAA that would have codified the authority to use 
force against al Qaeda, the Taliban, and associated forces.
    The administration, in a Statement of Administration 
Policy, strongly opposed that proposed new AUMF because it 
determined that the 2001 AUMF, ``enabled us to confront the 
full range of threats this country faces from those 
organizations and individuals,'' and concluded that the new 
AUMF, ``in purporting to affirm the conflict would effectively 
recharacterize its scope and would risk creating confusion 
regarding applicable standards.''
    Do you agree with that Statement of Administrative Policy? 
I will start with General Nagata.
    General Nagata. Sir, I am unfamiliar with the document you 
just described. I can only say that as I track the orders and 
direction the Secretary has given his combatant commanders, I 
have never encountered a moment where they did not have 
sufficient legal authority to implement those orders.
    Senator Udall. Mr. Taylor?
    Mr. Taylor. I agree with the statement in the Statement of 
Administration Policy.
    Senator Udall. Secretary Sheehan?
    Mr. Sheehan. Yes, sir, I agree.
    General Gross. Sir, I would agree with General Nagata. From 
what I have seen in my military practice, the current AUMF has 
been adequate to meet the enemy we have seen to date so far.
    Senator Udall. Thank you for that.
    Let me direct a question to all of you again.
    The national counterterrorism strategy states that, ``the 
United States alone cannot eliminate every terrorist or 
terrorist organization that threatens our safety, security, or 
interests. Therefore, we must join with key partners and allies 
to share the burdens of common security.''
    Do you agree that increased cooperation with security 
partners versus unilateral action and expanded conflict should 
be a strategic goal of the United States? I will start with 
General Nagata again.
    General Nagata. Sir, I do agree. Working with partner 
nations and allies is crucial.
    Senator Udall. Mr. Taylor?
    Mr. Taylor. Yes.
    Mr. Sheehan. Yes, sir. It is specifically part of the 2012 
Defense Strategic Guidance.
    General Gross. Yes, sir, I agree as well.
    Senator Udall. Thank you for that.
    Secretary Sheehan, let me turn to you. If a negotiated 
settlement between the Government of Afghanistan and the 
Taliban were to be signed, would the AUMF still apply to the 
Taliban? In other words, could we be in a situation in which 
Afghanistan is no longer at war against Mullah Omar's Taliban, 
but we still are? Or if we also accept such a negotiated 
settlement, could we be in a situation in which we are at war 
with al Qaeda but not the Taliban?
    Mr. Sheehan. Senator, again, a hypothetical, but if the 
question you asked, could that be the case, then the answer 
would be yes, it could be the case.
    Senator Udall. We are certainly dealing with some 
hypotheticals here.
    Mr. Sheehan. It could be the case, yes, sir.
    Senator Udall. Mr. Taylor, if I could turn to you. If the 
United States faces an imminent threat to which Congress could 
not respond in a timely fashion, does the President of the 
United States have Article II authority to use military force 
to repel an imminent threat to the safety of Americans?
    Mr. Taylor. Yes, sir, he does.
    Senator Udall. Secretary Sheehan, let me turn back to you. 
In your judgment, what are the potential risks and consequences 
associated with passing a new AUMF?
    Mr. Sheehan. Senator, I think the AUMF as currently 
structured works very well for us. So I guess we would be 
concerned that any change might restrict our combatant 
commanders from conducting their operations as they have in the 
past. So right now, we are comfortable. I think Senator Inhofe 
said if it ain't broke, don't fix it. I would subscribe to that 
policy.
    Senator Udall. General Nagata, could I turn back to you and 
ask you? Do you believe that there are strategic risks 
associated with passing a new AUMF?
    General Nagata. Sir, I do not know. I do know that the 
combatant commanders' great familiarity and great confidence in 
the existing AUMF is also an important part of our assessment, 
that we have sufficient authority for the current orders and 
direction from the Secretary.
    Senator Udall. Mr. Taylor, if I could come back to you. To 
your knowledge, has an AUMF ever been passed by Congress 
without a specific request from the President?
    Mr. Taylor. I am not aware of any such history, sir. I 
believe the answer is no.
    Senator Udall. Gentlemen, thank you for being here today. 
This is a very important topic, as we all acknowledge. Thank 
you for your service.
    Mr. Chairman, I finished my questions.
    Chairman Levin. Thank you very much, Senator Udall.
    Senator Graham.
    Senator Graham. Thank you, Mr. Chairman.
    From the President's point of view, does the AUMF in any 
way restrict his ability to go after terrorist organizations 
that represent a national security threat to this country in 
places outside of Afghanistan that are not within the hierarchy 
of al Qaeda that existed on September 11, 2001?
    Mr. Sheehan. Senator, it would not.
    Senator Graham. So is there anything the President would 
like us to do differently than exists today?
    Mr. Sheehan. Senator, I think the AUMF provides very clear 
guidance for al Qaeda, the Taliban, and associated forces. He 
has many other authorities that you are aware of that he could 
use that he used prior to the enactment of the AUMF to deal 
with any other threats to our national security.
    Senator Graham. Do you agree with me the war against 
radical Islam or terror, whatever description you would like to 
provide, will go on after the second term of President Obama?
    Mr. Sheehan. Senator, in my judgment, this is going to go 
on for quite a while and, yes, beyond the second term of the 
President.
    Senator Graham. Beyond this term of Congress.
    Mr. Sheehan. Yes, sir. I think it is at least 10 to 20 
years.
    Senator Graham. I think you are absolutely right. I think 
we are involved in a generational struggle. So the lessons of 
September 11 are always learned the hard way.
    So your advice to the committee is to do nothing?
    Mr. Sheehan. Senator, I think it is appropriate to review a 
law that was written 12 years ago.
    Senator Graham. Doing nothing--Congress could be at the 
right answer more often than not.
    Mr. Sheehan. Yes, sir. I think it is an appropriate time to 
review this, and we are taking this very seriously to review 
it. But at this time, we do not find that it would improve our 
ability to conduct our global campaign against these 
organizations.
    Senator Graham. General, do you agree with that?
    General Gross. Senator, I agree that the current AUMF is 
adequate for us. In the time I have had in Central Command, 
down at International Security Assistance Force in Afghanistan, 
and also here on the Joint Staff, we have been able to go after 
the enemy that fits within the AUMF.
    Senator Graham. Do you agree with me, Mr. Secretary, that 
the inherent authority of the President as commander in chief 
would give him or her great latitude in terms of pursuing 
terrorist organizations that represent a threat against the 
United States apart from Congress?
    Mr. Sheehan. Yes, sir, I do agree.
    Senator Graham. But you also would agree that when 
Congress, the President, and our courts are all aligned, we are 
stronger as a nation, when we are all on the same sheet of 
music?
    Mr. Sheehan. Yes, sir.
    Senator Graham. So the one thing I do believe would be 
helpful is if Congress does more than just criticize, that we 
find ways to empower the commander in chief and also in some 
ways control the power of the executive branch. But I tend to 
agree that what we have today is working. But we all agree that 
the enemy of today is different than it was on September 11. Do 
you agree with that?
    Mr. Sheehan. Sir, they have changed a bit, but in many ways 
they have not changed very much at all. They are operating in a 
very similar way that they were in 1998, out of traditional 
strongholds in Yemen and East Africa. They have expanded in 
North Africa and some other areas, but quite frankly, this has 
been a global organization since day one.
    Senator Graham. But would you agree with me because of the 
pressure we have placed on the enemy in Afghanistan and Iraq, 
they are moving?
    Mr. Sheehan. Yes, sir. They have always moved. Even in 
2002, they were very active in North Africa and in parts of the 
Levant.
    Senator Graham. I could not agree with you more. So from 
your point of view, you have all the authorization and legal 
authorities necessary to conduct a drone strike against 
terrorist organizations in Yemen without changing the AUMF.
    Mr. Sheehan. Yes, sir, I do believe that.
    Senator Graham. Do you agree with that, General?
    General Gross. I do, sir.
    Senator Graham. General, do you agree with that?
    General Nagata. I do, sir.
    Senator Graham. Could we send military members into Yemen 
to strike against one of these organizations? Does the 
President have that authority to put boots-on-the-ground in 
Yemen?
    Mr. Taylor. As I mentioned before, there is domestic 
authority and international law authority. At the moment, the 
basis for putting boots-on-the-ground in Yemen, we respect the 
sovereignty of Yemen and it would----
    Senator Graham. I am not talking about that. I am asking: 
does he have the legal authority under our law to do that?
    Mr. Taylor. Under domestic authority, he would have that 
authority.
    Senator Graham. I hope Congress is okay with that. I am 
okay with that.
    Does he have authority to put boots-on-the-ground in the 
Congo?
    Mr. Sheehan. Yes, sir, he does.
    Senator Graham. Do you agree with me that when it comes to 
international terrorism, we are talking about a worldwide 
struggle?
    Mr. Sheehan. Absolutely, sir.
    Senator Graham. Would you agree with me the battlefield is 
wherever the enemy chooses to make it?
    Mr. Sheehan. Yes, sir. From Boston to the Federally 
Administered Tribal Areas in Pakistan.
    Senator Graham. I could not agree with you more.
    Do you agree with that, General?
    General Gross. Yes, sir. I agree that the enemy decides 
where the battlefield is.
    Senator Graham. It could be any place on the planet and we 
have to be aware and able to act. Do you have the ability to 
act and you are aware of the threats?
    Mr. Sheehan. Yes, sir. We do have the ability to react and 
we are tracking the threats globally.
    Senator Graham. From my point of view, I think your 
analysis is correct. I appreciate all of your service to our 
country.
    Chairman Levin. Thank you, Senator Graham.
    Senator Donnelly?
    Senator Donnelly. Thank you, Mr. Chairman.
    Would you call the al Nusra Front in Syria an al Qaeda-
affiliated terrorist group?
    Mr. Sheehan. Yes, sir, I would.
    Senator Donnelly. Would you say that the AUMF applies to 
the al Nusra Front?
    Mr. Sheehan. That is a legal question.
    Mr. Taylor. As with many things with Syria, we are looking 
very hard and very carefully, and I do not have a definitive 
answer for you at the moment.
    Senator Donnelly. Following up on Senator Graham's 
question, would we have the ability to act against al Nusra 
today under the AUMF?
    Mr. Sheehan. Yes, sir. We would have the ability to act 
against al Nusra if we felt they were threatening our security. 
We would have the authority to do that today.
    Senator Donnelly. Do we feel today that al Nusra is 
threatening our security?
    Mr. Sheehan. Senator, in this setting, I do not want to get 
in the decisionmaking we have for how we target different 
groups and organizations around the world.
    Senator Donnelly. Okay.
    If a terrorist group is al Qaeda-affiliated, does that 
inherently mean that they are threatening the United States?
    Mr. Sheehan. Yes, sir, although it is a bit murky, I hate 
to say, because there are groups that have openly professed 
their affiliations with al Qaeda, yet in fact, as a Government, 
we have not completely grappled with that as of now. But 
generally speaking, for AUMF, as we mentioned, it has to be an 
organized force first, and second that organized force has to 
be joined to al Qaeda as a co-belligerent to threaten us. So 
when both of those factors are in place, then we can move 
forward on AUMF.
    Senator Donnelly. If that al Qaeda-affiliated terrorist 
group is operating wholly within another country, and their 
actions to date have involved only that country, does the AUMF 
still apply to them?
    Mr. Taylor. Senator, as we indicated, we would do a fact-
intensive, careful consideration, and as Secretary Sheehan 
mentioned, one of the conditions is that they become co-
belligerent with al Qaeda in its hostilities against the United 
States or its coalition partners.
    Senator Donnelly. Is that a call that you make as you see 
it?
    Mr. Taylor. Yes, sir, after a very intensive, careful 
review, careful consideration of the intelligence and threat 
assessments.
    Mr. Sheehan. Senator, you ask a good question because when 
a group aligns itself with al Qaeda and al Qaeda has an express 
intent to attack Americans at home and abroad, but then does 
not take the next step to be involved in that co-belligerency, 
then we have a judgment to make.
    Senator Donnelly. Okay. That is what I am trying to----
    Mr. Sheehan. Right, I know.
    Senator Donnelly.--where the line is----
    Mr. Sheehan. Right, I got it. Yes, sir.
    Senator Donnelly. In regards to drone activities, are we 
reviewing the AUMF in regards to those activities, or do you 
feel, as we look at it right now, that it is sufficient to 
cover all of those various permutations that may occur?
    Mr. Sheehan. Right now, sir, we believe it is sufficient.
    Senator Donnelly. Okay.
    Mr. Chairman, thank you.
    Chairman Levin. Thank you very much, Senator Donnelly.
    Senator Kaine.
    Senator Kaine. Thank you, Mr. Chairman.
    To the witnesses, I associate myself with comments made by 
the ranking member about this being a helpful hearing to 
wrestle through some questions that I have not fully thought 
through.
    I want to start with the President's State of the Union. 
There were two paragraphs in the State of the Union this year, 
I will focus on each of them.
    ``Today the organization that attacked us on September 11 
is a shadow of its former self. Different al Qaeda affiliates 
and extremist groups have emerged from the Arabian Peninsula to 
Africa. The threat these groups pose is evolving. . . We will 
need to help countries like Yemen, Libya, and Somalia provide 
for their own security and help allies who take the fight to 
terrorists, as we have in Mali. Where necessary, through a 
range of capabilities, we will continue to take direct action 
against those terrorists who pose the gravest threat to 
Americans.''
    I want to focus on the notion of groups that have emerged 
after September 11. Is it the administration's position that 
groups that emerged after September 11 who had no connection 
with the attacks on September 11 are, nevertheless, covered by 
the AUMF?
    Mr. Taylor. Let me take that. If an armed group becomes an 
associated force with al Qaeda, that means that it has entered 
the fight alongside the organization that was responsible for 
those September 11 attacks and thus we believe they are fully 
covered by the AUMF. If they have not become an associated 
force of al Qaeda, then even though they may wish us harm, they 
are not within the scope of the AUMF. But, as in response to 
other questions, the President retains authority to utilize the 
tools that are necessary and appropriate to defend the Nation.
    Senator Kaine. So just back to the language of the AUMF 
that Senator McCain read, authorizing the President, ``to use 
all necessary and appropriate force against all those nations, 
organizations, or persons he determines planned, authorized, 
committed, or aided the terrorist attacks that occurred on 
September 11, 2001,'' it is the legal position of the 
administration that even groups or individuals that had nothing 
to do with the attacks, once they become associated with al 
Qaeda 25 years from now, are nevertheless covered by the 
current language of the AUMF.
    Mr. Taylor. I do not want to say 25 years from now, but 
today, yes.
    Senator Kaine. I am just using the earlier testimony about 
the likely length of this. As long as the AUMF is in place, I 
gather it to be your legal position that individuals who were 
not born by September 11, 2001, if they become associated with 
a group that associates with al Qaeda, it is your position that 
the AUMF would cover them and those organizations. Those, as 
the President said, different affiliates and extremist groups 
have emerged.
    Mr. Taylor. As long as they become an associated force 
under the legal standard that was set out----
    Senator Kaine. Let me ask about that, and I should know the 
answer to this question and I do not. Has that particular legal 
rationale, that individual groups who had nothing to do with 
September 11, are nevertheless covered by the AUMF, has that 
legal rationale been subject to litigation and decisions by 
American courts?
    Mr. Taylor. In the context of detention, I believe the 
answer is yes.
    Senator Kaine. The determination is that even those not 
associated with the attacks on September 11 are, nevertheless, 
covered by the scope of the AUMF.
    Mr. Taylor. That is right. If they are an associated force 
with al Qaeda, they have become associated with that 
organization which was responsible and is the target of the 
AUMF, they have brought themselves within the scope of the 
AUMF.
    Senator Kaine. Does the AUMF expire by presidential 
declaration, congressional action, or the occurrence of an 
actual event in the world?
    Mr. Taylor. It is a statute. We have not determined that 
the conflict has come to an end. Precisely how that would be 
written and established is unclear.
    Senator Kaine. It is clear that if Congress retracted the 
AUMF, at that point the authority would come to an end, 
correct?
    Mr. Taylor. That is correct.
    Senator Kaine. There would still be the international Law 
of War and other doctrine that the President and Congress could 
operate under. But aside from Congress retracting the AUMF, 
whether there is an actual event or could the President take 
some action that would end the AUMF, that has not yet been 
determined.
    Mr. Taylor. That is correct, but if, for example, the 
President were to issue a declaration stating that the conflict 
against al Qaeda has been concluded, I would think that that 
would constitute an end.
    Senator Kaine. The second paragraph, just very quickly, in 
the President's remarks, ``As we do so,'' fight terrorism, ``we 
must enlist our values in the fight . . . In the months ahead, 
I will continue to engage with Congress to ensure not only that 
our targeting, detention, and prosecution of terrorists remains 
consistent with our laws and system of checks and balances, but 
that our efforts are even more transparent to the American 
people and to the world.''
    This, obviously, is part of that. Does the administration 
have a current plan for engaging in a public discussion with 
the American people and the world, or a public discussion with 
Congress, about these sort of policy and legal architectures 
surrounding these decisionmaking processes?
    Mr. Sheehan. Senator, the President has made clear that he 
wants to move forward in terms of transparency with these 
programs, and the administration is committed to expanding that 
dialogue and we will hope to continue to do that in the months 
ahead.
    Senator Kaine. Thank you, Mr. Chairman.
    Chairman Levin. Thank you very much, Senator Kaine.
    Senator King.
    Senator King. Gentlemen, I have only been here 5 months, 
but this is the most astounding and the most astoundingly 
disturbing hearing that I have been to since I have been here. 
You guys have essentially rewritten the Constitution here 
today. The Constitution, Article I, Section 8, Clause 11 
clearly says that Congress has the power to declare war.
    This authorization, the AUMF, is very limited, and you keep 
using the term ``associated forces.'' You used it 13 times in 
your statement. That is not in the AUMF. You said at one point 
it suits us very well. I assume it does suit you very well 
because you are reading it to cover everything and anything.
    Then you said at another point, even if the AUMF does not 
apply, the general law of war applies, and we can take these 
actions.
    So my question is: how do you possibly square this with the 
requirement of the Constitution that the Congress has the power 
to declare war? This is one of the most fundamental divisions 
in our constitutional scheme that Congress has the power to 
declare war. The President is the Commander in Chief and 
prosecutes the war. But you are reading this AUMF in such a way 
as to apply clearly outside of what it says.
    Senator McCain was absolutely right. It refers to the 
people who planned, authorized, committed, or aided the 
terrorist attacks on September 11. That is a date. It does not 
go into the future. Then it says, ``or harbored such 
organizations,'' past tense, ``or persons in order to prevent 
any future acts by such nations, organizations, or persons.'' 
It established a date.
    I do not disagree that we need to fight terrorism, but we 
need to do it in a constitutionally sound way. Now, I am just a 
little old lawyer from Brunswick, ME, but I do not see how you 
can possibly read this to comport with the Constitution and 
authorize any acts by the President. You had testified to 
Senator Graham that you believe that you could put boots-on-
the-ground in Yemen under this document. That makes the war 
powers a nullity. I am sorry to ask such a long question, but 
what is your response to this? Anybody?
    Mr. Sheehan. Senator, let me take the first response. I am 
not a constitutional lawyer or a lawyer of any kind, but let me 
make a brief statement about al Qaeda and the organization that 
attacked us on September 11, 2001.
    In the 2 years prior to that, Senator King, that 
organization attacked us in East Africa and killed 17 Americans 
at our embassy in Nairobi with loosely affiliated groups of 
people in East Africa. A year prior to September 11, that same 
organization with its affiliates in Yemen almost sunk a U.S. 
ship, the USS Cole, a billion-dollar warship, killed 17 sailors 
in the Port of Aden. The organization that attacked us on 
September 11 already had its tentacles around the world with 
associated groups. That was the nature of the organization 
then; it is the nature of the organization now. In order to 
attack that organization, we have to attack those affiliates 
that are its operational arm, that have previously attacked and 
killed Americans and continue to try to do that.
    Senator King. That is fine, but that is not what the AUMF 
says. What I am saying is we may need new authority, but if you 
expand this to the extent that you have, it is meaningless. The 
limitation in the war power is meaningless.
    I am not disagreeing that we need to attack terrorism 
wherever it comes from and whoever is doing it, but what I am 
saying is let us do it in a constitutional way, not by putting 
a gloss on a document that clearly will not support it. It just 
does not work. I am just reading the words. It is all focused 
on September 11 and who was involved.
    You guys have invented this term ``associated forces'' that 
is nowhere in this document. As I mentioned, in your written 
statement, you use that. That is the key term. You use it 13 
times. It is the justification for everything, and it renders 
the war powers of Congress null and void. I do not understand. 
I do understand why you are saying we do not need any change. 
Because of the way you read it, you could do anything.
    But why not come back to us and say this is an overbroad 
reading that renders the war powers of Congress a nullity? 
Therefore, we need new authorization to respond to the new 
situation. I do not understand why. I mean, I do understand it 
because the way you read it, there is no limit, but that is not 
what the Constitution contemplates.
    Mr. Taylor, what do you respond?
    Mr. Taylor. Well, sir, the organization, al Qaeda, operates 
as a central organization with very closely related groups that 
join with it. They become, in a sense, the operating arms of al 
Qaeda, and the operating arms such as AQAP did not exist on 
September 11, 2001, but they have joined in with al Qaeda as 
part of the same belligerency that al Qaeda is conducting 
against us. We believe that a group like AQAP is certainly 
within the scope of the AUMF enacted by Congress and that it 
provides the authority to take the fight to AQAP just as it 
provides the authority to take the fight to al Qaeda senior 
leadership.
    Senator King. I guess the definition proves too much 
because it basically is unlimited. It basically says anybody 
that is hostile to us is, therefore, aligned with al Qaeda and, 
therefore, falls under the AUMF and, therefore, does not 
require any further congressional oversight. According to your 
reading, we have granted unbelievable powers to the President, 
and I think it is a very dangerous precedent.
    Mr. Chairman, thank you.
    Chairman Levin. Let me pick up that issue because I think 
under the law of war, Senator King is wrong, but I am going to 
have to ask you that question. Let me ask you, Mr. Taylor, 
whether or not it is true that if the United States is 
authorized to use force against a foreign country or an 
organization under domestic and international law, if that 
authority exists, does that authority automatically extend 
under the law of armed conflict to co-belligerents.
    Mr. Taylor. Yes, sir.
    Chairman Levin. In other words, does it automatically 
extend without having to be explicit? Does it automatically 
extend to those who have aligned themselves with the entity and 
joined the fight against us aligned with them?
    Mr. Taylor. Yes, sir, it does.
    Chairman Levin. Now, that is the authority I believe that 
does exist under the AUMF, Senator King. Now, that is my 
opinion. I do not claim to be an expert on the subject, but I 
do believe that that is an accurate statement. Where you are 
authorized to use force under domestic law, AUMF, and under 
international law against a foreign country or organization, 
that the authority automatically extends under the law of armed 
conflict to a co-belligerent, to some entity that has aligned 
themselves with the specified entity against us, in the fight 
against us.
    Is that your understanding, Mr. Taylor?
    Mr. Taylor. That is my understanding. You have expressed it 
very well.
    Chairman Levin. Okay. I think we will have to get some 
further clarification of that because I do not want to claim to 
be an expert on that subject. But my staff has handed me----
    Senator King. Nor do I, Mr. Chairman. I am just concerned 
that reading essentially vitiates the congressional power to 
declare war.
    Chairman Levin. No, I do not think it does. If Mr. Taylor's 
answer is correct, and I think it is, then by authorizing an 
attack against al Qaeda, I believe it automatically includes 
any co-belligerent with al Qaeda under law of war.
    Now, we will find out whether that is true. We have already 
got one answer from Mr. Taylor who is the counsel for the DOD. 
We will ask the Attorney General as well as to whether or not 
that is correct.
    Mr. Taylor, you have also indicated a couple times both 
under domestic law and international law, that one would need 
to be authorized to move into a country and attack some entity 
in that country. For instance, I think the countries Senator 
King used were Syria and Yemen. There is a sovereignty issue 
under international law. Is that correct?
    Mr. Taylor. Yes, sir.
    Chairman Levin. So the AUMF may authorize the President to 
use force against a co-belligerent of al Qaeda in Yemen under 
the AUMF, if your reading is correct and my understanding is 
correct, but it would also have to be legal under international 
law as well. Is that correct?
    Mr. Taylor. That is correct.
    Chairman Levin. That then involves sovereignty issues.
    Mr. Taylor. Yes, sir.
    Chairman Levin. Do you want to explain that?
    Mr. Taylor. We are a sovereign state in a system of 
sovereign states. We benefit greatly by respect for each 
nations' sovereignty. We are bound by treaty--that is, the U.N. 
Charter--to respect the sovereignty of other states. As 
recognized in the U.N. treaty, there is the inherent right of 
self-defense. But that is one basis for overcoming a state's 
sovereignty if it is necessary for us to exercise our inherent 
right of self-defense.
    Another basis is the consent of the host country, and that 
is a very important basis for our operations outside of 
Afghanistan.
    Chairman Levin. The issue has been raised about other 
entities than the DOD using remotely piloted aircraft strikes. 
My question is, should the use of these drones be limited to 
DOD or should other Government agencies be allowed to use such 
force as well, for instance, the CIA? Either one of you, 
Secretary or Mr. Taylor.
    Mr. Sheehan. Mr. Chairman, the President has indicated that 
he has a preference for those activities to be conducted under 
title 10. We are reviewing that right now. But I think we also 
recognize that type of transition may take quite a while 
depending on the theater of operation.
    Chairman Levin. Would you give us your answer to that 
question after your review? You are saying that is under 
review.
    Mr. Sheehan. Yes, sir, absolutely.
    [The information referred to follows:]

    While the review of responsibilities for the conduct of direct 
action against terrorist targets continues, we have provided the 
committee classified briefings and will continue to brief the committee 
as the review progresses.

    Chairman Levin. Finally, let me say that I believe every 
President has exercised authority and claimed authority as 
commander in chief even without the AUMF by Congress. Is that 
true?
    Mr. Sheehan. Yes, sir, absolutely.
    Chairman Levin. So I presume that this President, like 
other Presidents, would even, if there were no AUMF, claim 
certain power under the commander in chief authority of Article 
II.
    Mr. Sheehan. Yes, Mr. Chairman.
    Chairman Levin. Senator Inhofe?
    Senator Inhofe. Just a couple of brief things here. I am 
looking at it, Senator King, as a non-lawyer because I am not a 
lawyer. But I was here back when it was passed, and I look at 
the language now. It says, those nations, organizations, or 
persons he determines planned, authorized, committed or aided 
terrorist attacks. It is very broad. Maybe at that time, we 
should have worded it maybe another way.
    But on the other hand as we look and observe, if there is 
an abuse of this, I will be the first one to go and change it, 
and we can do that. We are a legislative body and we can make 
sure that authority is not there if that authority, in my 
estimation, is abused.
    It is the most egregious attack on our Homeland in history. 
At that time, I thought we needed something broad. We had to go 
after these guys. This is not just an observation because I was 
around even during World War II. There is not an identifiable 
enemy out there. There is not a flag that we are against. This 
is something that is different than anything else, so it 
required the authority, in my opinion at the time, to do what 
we had to do to get these guys.
    If it should be abused, I am sure I would not be the only 
one on this panel that would want to make the changes necessary 
to preclude that abuse from taking place.
    That is the only observation I would make, Mr. Chairman.
    Chairman Levin. Thank you.
    I am just going to make part of the record a statement for 
the record which has been provided to us that says that in 
World War II, the United States was not just at war with 
Germany, Italy, and Japan, who we declared war against and was 
authorized by Congress, but the United States was also at war 
with their co-belligerents, Bulgaria, Hungary, and Romania, 
among others. So I will make that part of the record.
    [The information referred to follows:]
      
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
        
    Chairman Levin. Senator Kaine.
    Senator Kaine. Just briefly, Mr. Chairman. This is more of 
a comment.
    Based on Mr. Donnelly's question, where this becomes very 
important, and I was not going to use any examples in mine 
because I think hypotheticals can get you into trouble. But Mr. 
Donnelly asked the question about al Nusra, and Secretary 
Sheehan's answer was, yes, that would be an affiliated group. I 
think it is highly important that we stress to the 
administration that commencing hostilities that puts American 
troops or materiel in harm's way in Syria without fresh 
congressional discussion and approval, utilizing the 2001 
document would be enormously controversial. The testimony that 
I hear today suggests that the administration believes that 
they would have the authority to do that. But I do not want us 
to walk out of the room with leaving an impression that Members 
of Congress also share the understanding that would be 
acceptable.
    There may come a time when we would need to have that 
discussion, but I fully believe, in looking at this AUMF, that 
discussion would have to take place between the executive and 
Congress and could not rely on an expanded interpretation of 
the AUMF language.
    So since Senator Donnelly raised that question about Syria 
and Secretary Sheehan said that al Nusra would be included in 
the affiliated groups as currently interpreted by the 
administration, I just do not want to walk out of this room 
with any doubt that at least this Senator would expect under 
the Constitution that an administration would come back to 
Congress and have that discussion and not use this AUMF to 
justify commencement of hostilities in that theater or others.
    Chairman Levin. If I can use your time just to comment, I 
happen to agree with you that this administration or any other 
administration would be very wise to come back to Congress 
before they did what you said in your hypothetical, which was 
to put boots-on-the-ground in Syria based on this authority. 
They would be wise to do it.
    However, I think we all have to face the question as to 
whether or not if they decided to use a drone against al Nusra, 
if they decided al Nusra was affiliated with al Qaeda, whether 
they would have the authority to use a drone, for instance, 
against al Nusra. I am not sure that would be the same question 
that you raised in terms of boots-on-the-ground in terms of the 
wisdom of a President coming to Congress to discuss that.
    I think Senator King has raised an extremely important 
question. It needs to be answered, I believe, in a much more 
definitive way for the record by the Attorney General as to 
whether or not the affiliated language applies to subsequent 
affiliations, for instance, I think that is an important one, 
of somebody that was not even an entity in existence at the 
time of 2011.
    So, Senator King, it is your turn.
    Senator King. Senator Kaine made my point somewhat less 
passionately than I did, but I think he made the point.
    I want to be clear. I believe that fighting terrorism is an 
absolute paramount responsibility of this Government and this 
President or any President. I think we have to be able to 
respond. I am uncomfortable doing it through gloss on a legal 
document that, to my view, does not support it and would much 
rather do it in a straightforward way. Senator Inhofe said if 
there was an abuse, he would be the first to act on it. My 
concern is that when there is an abuse, it may be too late to 
act on it. The whole idea of the Constitution is that Congress 
makes that initial decision.
    I actually worked here in the 1970s when the War Powers Act 
was negotiated. I am well aware that this is not an easy 
question. It is not a clear, bright question about declaring 
war. But I do think this is an erosion of legislative authority 
that was expressly granted to Congress, and I think we need to 
take care that it does not happen through an overly broad 
reading of a 12-year-old legal document that I think 
absolutely, clearly does not apply to many of these new threats 
that we are dealing with. It does not mean we do not have to 
deal with them, but I just do not like the idea of reading a 
12-year-old document so broadly that it renders the 
congressional authority and the importance of congressional 
authority for using military force abroad of no force and 
effect. That is my only concern.
    Thank you, Mr. Chairman.
    Chairman Levin. We will ask the Attorney General this 
question that you have raised as to whether or not the 
authority exists under the AUMF to go after affiliated groups 
that are not named and which subsequently become affiliated 
with al Qaeda.
    The questions which my colleagues have raised I think are 
important questions, including the one on al Nusra. It struck 
me as well. In that situation, is there authority? Because if 
we find that they are affiliated, apparently they are, with al 
Qaeda, is there authority to go after them and using what 
mechanism? I think it is a little easier in your assumption, 
Senator Kaine, your hypothetical, to say you should come back 
to Congress if we are talking about boots-on-the-ground against 
al Nusra. On the other hand, if it is a drone attack on them, 
how is that different from drone attacks which have been used 
against affiliates of al Qaeda in other places.
    Senator King. Mr. Chairman, I would point in response to a 
question from Senator Graham, the panel responded 
affirmatively, and I wrote down the quote. ``The President has 
authority to put boots-on-the-ground in Yemen or the Congo 
under this Act.'' I believe that was the testimony, and that is 
where I am getting very concerned.
    Chairman Levin. It has to not only be affiliated, I want to 
make clear, under my question to the panel, but they must join 
the fight against us as well.
    Now, one other point that you just made, Senator King. I 
believe it was Mr. Taylor who was trying to answer Senator 
Graham saying there is not only authority domestically, there 
is a question under international law as well. That also 
becomes involved in, I believe, Senator Graham's hypothetical.
    I must say that if this power were abused, I would be 
joining Senator Inhofe as to who would be first in line to 
object to an abuse of this authority. We would have to fight 
for who is first in line to take on any abuse of this 
authority. But it is a very important question which has been 
raised here.
    We are very grateful. If there are no additional questions 
by our colleagues, we are grateful to this panel. We will have 
a lot of additional questions for the record in addition to the 
ones that have been raised here. The staff will prepare the 
letter to the Attorney General setting out the question which 
has been raised by Senator King. We thank you all. Yes, 
Secretary Sheehan?
    Mr. Sheehan. Senator, just one clarification. When I was 
asked whether the President had authority to put boots-on-the-
ground which, by the way, is not legal term and that he did 
have the authority to put boots-on-the-ground in Yemen or in 
the Congo, I was not necessarily referring to that under the 
AUMF. Certainly the President has military personnel deployed 
all over the world today in probably over 70 or 80 countries, 
and that authority is not always under AUMF. So I just want to 
clarify for the record that we were not talking about all of 
that authority subject to AUMF.
    Chairman Levin. Okay. I am satisfied with that. Thank you 
for that clarification.
    We will call the second panel now with thanks to our first 
panel. Our second panel today is a number of legal experts on 
the topics under discussion. We have Ms. Rosa Brooks, Professor 
of Law, Georgetown University Law Center; Mr. Geoffrey Corn, 
Professor of Law, South Texas College of Law; Mr. Jack 
Goldsmith, Professor of Law, Harvard Law School; Mr. Kenneth 
Roth, Executive Director of Human Rights Watch; Mr. Charles 
Stimson, who is Manager of the National Security Law Program at 
The Heritage Foundation.
    We very much appreciate your willingness to appear at this 
hearing today. We look forward to your testimony. Your full 
testimony, your written testimony, will be made part of the 
record. We, of course, want you to make opening statements. If 
you can, restrict your opening statements to 6 minutes. We 
arranged our witnesses alphabetically. So we are going to start 
with you, Ms. Brooks.

  STATEMENT OF MS. ROSA BROOKS, PROFESSOR OF LAW, GEORGETOWN 
                     UNIVERSITY LAW CENTER

    Ms. Brooks. Thank you, Chairman Levin and Senator Inhofe. 
It is great to be here. I really appreciate your holding these 
hearings because these issues are incredibly important.
    I spent 2\1/2\ years working at DOD as Counselor to the 
Under Secretary of Defense for Policy, so I also want to say 
how much respect I have for the accomplishments and talents of 
the members of the first panel. I also want to extend my 
sympathies to them because I think they were put in a position 
where I have, frankly, never seen such an accomplished, 
talented group of people give such muddled and incoherent 
answers to some fairly straightforward questions. I think they 
have created what my military colleagues call a target-rich 
environment for those of us on panel two. It is a little tough 
to know where to start here.
    So let me try to start by talking a little bit about the 
context in which the AUMF was passed, and this is something 
you, obviously, know much more about than I do. Right after 
September 11, while the World Trade Center was still smoking, 
the Pentagon was still smoking, is when the first discussions 
of passing an AUMF occurred. At that time, as you recall, the 
Bush administration initially came to this body and asked for a 
more open-ended authorization to use military force than was 
ultimately passed. I believe that the language that the Bush 
administration had proposed at that time was that the AUMF 
authorized the President to use force to, ``deter and preempt 
any future acts of terrorism or aggression against the United 
States.''
    Now, even a few short days after the September 11 attacks, 
Congress was reluctant to give the administration such an open-
ended authorization to use force because I think they saw, very 
rightly, that would have the potential to be an open-ended 
declaration of war against an undefined enemy which could 
routinize the use of force in a way that would be totally 
unconstrained. I think Senator King quite rightly commented 
that Congress is given not only the power to declare war but a 
wide range of associated powers. I think Congress quite rightly 
felt at that time that such a broad authorization, what would 
amount to a declaration of war legally speaking, which would 
then trigger the applicability of armed conflict, was too broad 
and Congress would cede too many of its powers to the executive 
branch. As you all know, frankly, once you cede power to the 
executive branch, it is awfully hard to get it back again.
    Instead, as has already been stated, the AUMF that was 
passed was fairly clearly restricted in terms of manifesting 
congressional intent: (A) to those responsible in some way or 
another for the September 11 attacks; and (B) for the purpose 
of preventing attacks against the United States; not for the 
purpose of preventing terrorist attacks of all sorts everywhere 
against anyone, but for the purpose of preventing such attacks 
by such specified groups responsible for September 11 against 
the United States itself.
    My sense is that even at that very frightening moment when 
emotions ran very high and the threat was far greater, I think, 
than it is today, Congress was very careful to try to not send 
a signal to the executive branch that Congress was effectively 
delegating its war powers permanently.
    Nevertheless, I think we have seen, and I think this came 
through in the previous panel, the existing AUMF has 
effectively been interpreted as creating exactly the open-ended 
grant of authority for an ongoing armed conflict with no 
limitations that Congress sought to avoid initially. That is 
primarily through this concept of associated forces.
    Now, the representatives of the administration are quite 
correct to say that under law of armed conflict, the 
authorization to use force does extend to co-belligerents. The 
difficulty is that today, unlike in World War II, it is a lot 
harder to know how to apply that rule, particularly outside of 
so-called hot battlefields. I do not quite know what it means 
or what the criteria are for entering the fight, for instance, 
what that means outside of hot battlefields. I do not know what 
happens if the al Qaeda core is decimated and ceases to exist. 
Can we still have associates of al Qaeda, in that case forever, 
as long as they indicate their sympathy, and if so, what kind 
of constraint does that pose?
    I also do not quite know what it means if we simultaneously 
say, as members of the first panel quoted Jeh Johnson saying, 
that to be an associated force you have to be an organized 
force, but then say we cannot give Congress list of such forces 
because they are too disorganized. Their membership is too 
shifting. Their alliances are too murky. It has to be one or 
the other, it seems to me, and I think that is a pretty 
incoherent standard.
    What has happened, as a result, is that we now appear, and 
obviously, I am going only on publicly available information, 
to be using armed force against such entities as Somalia's al 
Shabaab, which not only appears to have no connection to the 
September 11 attacks, but does not appear, according to our own 
Director of National Intelligence, to pose any particular 
threat to the United States insofar as its ambitions are 
primarily local.
    What has happened, essentially, is that this idea of 
associated forces has been used as a back door to shoehorn into 
the AUMF everything with virtually no limits, and I think we 
have heard that here.
    So what do we do? You have three options. One is, I think, 
to do nothing. You do nothing and you let the administration 
continue to make something of a mockery of Congress' intent as 
I take it to have been. Two, you can expand the AUMF to 
effectively explicitly authorize what is going on right now, 
which would have the virtue of clarity and honesty. Or three, 
if what is being done at the moment exceeds what, from a policy 
perspective, you consider wise, you should, in fact, amend or 
revise the AUMF to place limits on what the executive branch 
can do without additional authorizations from you.
    In my own view, an expanded AUMF would be neither wise nor 
necessary.
    I think that this is as much a policy question as it is a 
legal question. We, frankly, have a choice of legal regimes 
here, and I will talk more about that in a minute.
    My own view is that expanding beyond those who actually 
pose a sustained, intense threat to the United States is not a 
very good idea. I, frankly, think it is counterproductive. I 
think we run the risk of doing what Donald Rumsfeld asked 
during the Iraq War which is creating new terrorists faster 
than we can kill them.
    I also think at the moment we risk alienating some of our 
key European allies whose view of the applicable international 
law is very different from ours and who may become somewhat 
reluctant to share intelligence information with us because 
they are also operating in a different domestic legal regime 
and face potential liability in their own courts if they are 
complicit in what their courts choose to see as extrajudicial 
killings.
    I also think it is unwise for separation of powers reasons. 
As I said, once you cede power open-endedly to the executive 
branch, it is hard to get it back. Just from an institutional 
perspective, I would urge you to be quite careful, measured, 
and detailed in precisely what you mean when you authorize the 
executive branch to use force on the theory that it is always 
easier to give more if it becomes necessary than to take back 
what has been improvidently given.
    I also think that it is unnecessary to expand the AUMF. 
Here I think maybe this will get to the root of the earlier 
discussion between Senator King and Senator Levin on what 
exactly does the administration have the authority to do.
    The authority to use force is not the same as the authority 
to enter an armed conflict. It is not an all-or-nothing matter. 
It is not as though either we have an armed conflict and you 
can use force against threats or you do not have an armed 
conflict and you cannot. Both from a constitutional 
perspective, the President clearly has the inherent authority 
to use force if necessary to protect the United States against 
a specific imminent threat, and equally under international law 
even if there is no armed conflict, the President clearly has 
the authority to use military force to protect the United 
States against an imminent threat.
    So the President either way, AUMF or no AUMF, if there is a 
threat to the United States of the nature that al Qaeda 
presented on September 11 or even, frankly, a good deal less, 
if the threat is imminent and specific against the United 
States, there is no question that whatever this body does, I 
think, the U.S. public, Congress, and international community 
would be fully supportive of the President's legal right and 
indeed responsibility to use force to protect the Nation.
    That is because we have two different legal constructs 
here. One is the law of armed conflict. One is the 
international law of self-defense and they roughly track what 
Congress could give in the AUMF and what the President has even 
in the absence of an AUMF.
    With the law of armed conflict, it is the most permissive 
legal regime with regard to executive authority to use force in 
an ongoing way. It has the fewest constraints on executive 
discretion. Once the law of armed conflict has been triggered 
and authorized by this Congress, the President can use force 
against threats that are not imminent. He can use force against 
people based on their status, e.g., their membership and 
affiliations rather than their actual activities. You can 
target a sleeping enemy under the law of armed conflict, and 
the authorization to use force is continuous until such time as 
the conflict actually comes to an end.
    In the international law of self-defense, in contrast, 
which the President, I believe, has the right to use under his 
inherent constitutional authorities, there are more legal 
constraints. There are more legal constraints because it does 
not require congressional approval, the President is presumed 
to be limited to using force to the extent necessary to respond 
to an imminent, specific threat and the authorization under 
that inherent regime essentially could be seen as expiring 
either when the threat has been addressed or at such time that 
Congress has been able to act to replace it with some other 
kind of legal regime.
    So in my view, I think that it would be more appropriate if 
Congress wants to do something to limit the President's ability 
to continue to use force under the existing AUMF with a sunset 
clause or something similar. You do not need to fear that 
leaves the United States vulnerable at all. I think, in 
whatever muddled way, the first panel was trying to say this. 
There is already enough authority to respond to imminent 
threats. The question for you as a body is, do you want to make 
that authority where the President has to come back to you and 
ask for more if he needs it as a default or where the President 
gets to go on at his own discretion without ever having to 
return as the default, as I think the first panel suggested 
they thought was legally the case.
    Thank you.
    [The prepared statement of Ms. Brooks follows:]
                 Prepared Statement by Ms. Rosa Brooks
    Chairman Levin, Ranking Member Inhofe, and members and staff of the 
Committee on Armed Services, thank you for giving me the opportunity to 
testify today on the law of armed conflict, the use of military force, 
and the 2001 Authorization for Use of Military Force (AUMF). These are 
extraordinarily important issues, and I appreciate your commitment to 
taking a fresh look at them.
    I am a law professor at Georgetown University, where I teach 
courses on international law, constitutional law, and national security 
issues. I am also a Bernard L. Schwartz Senior Fellow at the New 
America Foundation, and I write a weekly column for Foreign Policy 
magazine. From April 2009 to July 2011, during a public service leave 
of absence from Georgetown, I had the privilege of serving as Counselor 
to the Under Secretary of Defense for Policy at the Department of 
Defense. This testimony reflects my personal views only, however.
    Mr. Chairman, almost 12 years have gone by since the passage of the 
AUMF on September 14, 2001. The war in Afghanistan--the longest war in 
U.S. history--has begun to wind down. But at the same time, a far more 
shadowy war has quietly accelerated.
    I am referring to what many have called the ``drone war'': the 
increased use of military force by the United States outside of 
traditional, territorially bounded battlefields,\1\ carried out 
primarily, though not exclusively,\2\ by missile strikes from remotely 
piloted aerial vehicles.\3\ In recent years this shadowy war has spread 
ever further from ``hot'' battlefields, migrating from Afghanistan and 
Iraq to Yemen, Pakistan, and Somalia, and perhaps to Mali and the 
Philippines as well.\4\
---------------------------------------------------------------------------
    \1\ I will use the term ``hot battlefields'' interchangeably with 
``traditional battlefields,'' ``traditional territorially bounded 
battlefields'' or ``active theaters of combat.'' The intent is not to 
assert that there is a clear legal distinction between these concepts 
(that, after all, is part of what is at issue today), but rather to 
distinguish descriptively between bounded geographical locations in 
which the existence of an armed conflict is legally uncontroversial and 
universally acknowledged--such as Afghanistan, or Iraq prior the the 
withdrawal of U.S. troops--and situations in which the existence of an 
armed conflict and/or the applicability of the law of armed conflict is 
precisely what is controversial.
    \2\ While drone strikes have garnered the most media attention, 
most of the analysis in this testimony applies equally to strikes 
carried out by manned aircraft and to strikes or raids that involve 
``boots-on-the-ground,'' such as those carried out by Special 
Operations Forces.
    \3\ These have variously been termed ``drones,'' ``unmanned aerial 
vehicles,'' and ``remotely piloted vehicles.'' I will generally use the 
term ``drone'' as shorthand.
    \4\ See http://www.longwarjournal.org/threat-matrix/archives/2012/
06/did--the--us--launch--a--drone--stri.php and http://
www.brookings.edu/research/opinions/2012/03/05-drones-philippines-ahmed
---------------------------------------------------------------------------
    Most information about U.S. drone strikes and other U.S. uses of 
military force outside ``hot battlefields'' remains classified. As a 
result, virtually all of what is publicly known has had to be pieced 
together from leaked U.S. Government documents, court filings, 
nongovernmental organizations, media investigations, and occasional 
statements from government officials of foreign states. Everything in 
this testimony is therefore subject to the caveat that I can only 
comment on publicly available information, which is inevitably partial 
and (in some cases potentially misleading).
    Subject to that caveat, however, it appears that U.S. drones 
strikes, which began as a tool used in extremely limited circumstances 
to target specifically identified high-ranking al Qaeda officials, have 
become a tool relied on to go after an ever-lengthening list of bad 
actors, many of whom appear to have only tenuous links to al Qaeda and 
the September 11 attacks, and many of whom arguably pose no imminent 
threat to the United States. Some of these suspected terrorists have 
been identified by name and specifically targeted, while others have 
reportedly been targeted solely on the basis of behavior patterns 
deemed suspect by U.S. officials.\5\
---------------------------------------------------------------------------
    \5\ So called ``signature strikes.''
---------------------------------------------------------------------------
    We also appear increasingly to be targeting militants who are lower 
and lower down the terrorist food chain,\6\ rather than high-ranking 
terrorist planners and operatives.\7\ Although drone strikes are 
thought to have killed well over 3,000 people since 2004,\8\ analysis 
by the New America Foundation and more recently by the McClatchy 
newspapers suggests that only a small fraction of the dead appear to 
have been so-called ``high-value targets.''\9\
---------------------------------------------------------------------------
    \6\ See http://articles.cnn.com/2012-09-05/opinion/opinion--bergen-
obama-drone--1--drone-strikes-drone-attacks-drone-program
    \7\ See http://www.washingtonpost.com/wp-dyn/content/article/2011/
02/20/AR2011022002975.html
    \8\ See http://counterterrorism.newamerica.net/drones
    \9\ See http://counterterrorism.newamerica.net/drones; http://
www.mcclatchydc.com/2013/04/09/188062/obamas-drone-war-kills-
others.htmlUZF-Xncq9QI; and http://www.washingtonpost.com/wp-dyn/
content/article/2011/02/20/AR2011022002975.html
---------------------------------------------------------------------------
    The increasing use of weaponized drones to target individuals who 
only tenuous links to al Qaeda and the September 11 attacks raises 
critical legal and policy questions, particularly when such drone 
strikes occur outside of traditional battlefields. Most pertinent for 
today's hearing, such strikes raise significant domestic legal 
questions about whether current U.S. targeted killing policy is fully 
in conformity with Congress' 2001 AUMF.
    In my view, current U.S. targeted killing policy has grown 
increasingly difficult to justify under the 2001 AUMF. As I will 
discuss, however, I believe it is neither necessary nor wise to expand 
the AUMF to give the President broad additional authorities to use 
force. Expanding the AUMF would effectively cede to the executive 
branch powers our Constitution entrusts to Congress. This would 
undermine the separation of powers scheme so vital to sustaining our 
constitutional democracy, and could easily lead to an irresponsible and 
unconstrained executive branch expansion of what has already been 
termed ``the forever war.''\10\
---------------------------------------------------------------------------
    \10\ http://opiniojuris.org/wp-content/uploads/2013-5-7-corrected-
koh-oxford-union-speech-as-delivered.pdf
---------------------------------------------------------------------------
    Expanding the AUMF is also wholly unnecessary. Even without any 
AUMF, the President already has both the constitutional power and the 
right under international law to use military force to defend the 
United States from an imminent attack, regardless of whether the threat 
emanates from al Qaeda or from some new and unrelated terrorist 
organization.
    If Congress chooses to revise the AUMF, it would be far more 
appropriate to add geographic and temporal limitations--or clarify 
Congress' assumptions about the nature of the force authorized--than to 
expand it. The 2001 AUMF created a domestic legal framework that 
assumes an indefinitely continuing state of armed conflict and gives 
the President advance authorization to use force more or less as he 
chooses, without regard to geography and without regard to the gravity 
or imminence of any threats posed to the United States. But as the 
threat posed by al Qaeda dissipates and U.S. troops begin to withdraw 
from Afghanistan, it is appropriate for the United States to transition 
to a domestic legal framework in which there is a heightened threshold 
for the use of military force.
    Congressional authorization for the President to use military force 
should be reserved for situations in which there is a sustained and 
intense threat to the United States. If this President or any future 
President identifies a specific new threat of that nature, he can and 
should provide Congress with detailed information about the threat, and 
request that Congress authorize the use of military force in a manner 
tailored to address the specific threat posed by a specific state or 
organization.
    In the event that the President becomes aware of a threat so 
imminent and grave that it is not feasible for him to seek 
congressional authorization prior to using military force, he can rely 
on his inherent constitutional powers to take appropriate action--by 
force if needed--until the threat has been dissipated or until Congress 
can act. There is simply no need for Congress to preemptively authorize 
the President to use military force indefinitely against inchoate 
threats that have not yet emerged.
    Mr. Chairman, the United States is usually credited with the first 
modern codification of the rules of armed conflict. In 1863, President 
Abraham Lincoln signed General Order 100, ``Instructions for the 
Government of Armies of the United States in the Field''--better known 
as the Lieber Code--outlining the core rules of armed conflict with 
which he expected the Union Army to comply. In Article 29, the Lieber 
Code makes a bold declaration: ``Peace is [the] normal condition; war 
is the exception. The ultimate object of all modern war is a renewed 
state of peace.''\11\
---------------------------------------------------------------------------
    \11\ http://avalon.law.yale.edu/19th--century/lieber.asp
---------------------------------------------------------------------------
    This rings as true today as in 1863, when the United States faced a 
truly existential threat. It invites us to ask a broad policy question 
in addition to a legal question: do we want to live in a world of 
perpetual, open-ended war? If not, how do we begin to turn the page on 
the September 11 era? What congressional action will ensure that we 
retain the ability to protect ourselves when necessary, while at the 
same time ensuring that peace, rather than war, once again becomes our 
norm?
    Difficult as this question is, I am certain of one thing: an 
expanded AUMF will do nothing to prevent a ``forever war.'' On the 
contrary, it would likely lead only to thoughtless further expansion of 
our current shadowy drone war--and this, I believe, would both 
undermine the rule of law and represent an act of supreme strategic 
folly.
    Moving well beyond the issue of the AUMF, U.S. drone strikes 
outside traditional battlefields also raise significant questions about 
U.S. compliance with international law principles, and even about what 
international legal framework is the appropriate framework for 
evaluating current U.S. targeted killing policy. Is it the 
international law of armed conflict? The international law concerning 
the right of states to use force in self-defense? International human 
rights law? Some combination of all these, or a different framework 
depending on the factual circumstances unique to each situation? Even 
more broadly, current U.S. policy raises grave questions about what it 
means to respect the rule of law when the law itself appears to be 
ambiguous or indeterminate.
    I recently testified at a hearing on ``The Constitutional and 
Counterterrorism Implications of Targeted Killing'' held by the Senate 
Judiciary Committee's Subcommittee on the Constitution, Civil Rights, 
and Human Rights. In my written statement submitted for the record for 
that April 23 hearing (see Appendix), I addressed a number of broader 
issues that I believe are also of interest to the Committee on Armed 
Services.
    Specifically, my April 23 testimony discussed what I view as some 
of the most common but unfounded criticisms of U.S. drone strikes, and 
identified some advantages of using drones as weapons delivery systems. 
I argued that drones present no new legal issues as such, but drone 
technologies lower the perceived costs of using lethal force across 
borders. As a result, they have facilitated a steady expansion of the 
use of force beyond traditional battlefields, which will likely have 
long-term strategic costs for the United States.
    My April 23 testimony also addressed the significant rule of law 
challenges posed by current U.S. targeted killing policy. I discussed 
the international legal framework in which U.S. drone strikes occur, 
focusing specifically on the law of armed conflict and the 
international law of self-defense, and arguing that existing 
international law frameworks offer only ambiguous guidance with regard 
to the legality of U.S. targeted killings. This creates a grave rule of 
law problem: when the legal framework for assessing U.S. targeted 
killings is uncertain and contested, the ``legality'' of such killings 
becomes effectively indeterminate. My April 23 testimony also addressed 
the question of what precedent U.S. targeted killing policy risks 
setting for other less scrupulous nations, and concluded by 
highlighting a number of possible ways for Congress to ensure that U.S. 
targeted killing policy does not continue to undermine vital rule of 
law norms.
    Rather than restate these arguments in this testimony prepared for 
the Committee on Armed Services, I will focus today solely on questions 
relating to the 2001 AUMF. However, I am including as an appendix to 
today's written testimony the statement I submitted on April 23 to the 
Judiciary Committee's Subcommittee on the Constitution, Civil Rights, 
and Human Rights, and I respectfully request that you consider it part 
of the record for today's hearing as well.
            the 2001 authorization for use of military force
    Mr. Chairman, our Constitution gives Congress vital powers relating 
to the use of military force. Congress is given the power to declare 
war and the power to raise, support, and make rules regulating the 
armed forces and to make rules concerning ``captures on land and 
water.'' Congress is also given the constitutional power to call forth 
``the militia to execute the laws of the Union, suppress insurrections 
and repel invasions,'' as well as the power to ``define and punish . . 
. offenses against the law of nations.'' The constitutional grant of 
these powers to Congress is essential to our scheme of separation of 
powers, and Congress has rightly been vigilant against executive 
usurpation of its constitutional prerogatives.
    The original AUMF was passed on September 14, 2001. It gives the 
President congressional blessing to:

          ``[U]se 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, or harbored such organizations 
        or persons, in order to prevent any future acts of 
        international terrorism against the United States by such 
        nations, organizations, or persons.''\12\
---------------------------------------------------------------------------
    \12\ Pub. L. No. 107-40, Sec. 2(a), 115 Stat. 224, 224 (codified at 
50 U.S.C. Sec. 1541 note).

    Mr. Chairman and Senator Inhofe, as you and your colleagues on this 
committee undoubtedly recall, the Bush administration initially 
proposed a broader, more open-ended AUMF, one that would authorize the 
use of force to ``deter and pre-empt any future acts of terrorism or 
aggression against the United States.''\13\ But even in those 
frightening days right after the September 11 attacks--even as bodies 
continued to be pulled from the rubble of the Pentagon and the Twin 
Towers--Congress refused to give the executive branch what would have 
amounted to an unnecessary and open-ended declaration of permanent war 
against an inchoate, undefined enemy.
---------------------------------------------------------------------------
    \13\ See 147 Cong. Rec. S9950-51 (daily ed., Oct. 1, 2001) 
(statement of Senator Byrd) (providing the text of the administration's 
initial proposal); see also id. at S9949 (``[T]he use of force 
authority granted to the President extends only to the perpetrators of 
the September 11 attack. It was not the intent of Congress to give the 
President unbridled authority . . . to wage war against terrorism writ 
large without the advice and consent of Congress. That intent was made 
clear when Senators modified the text of the resolution proposed by the 
White House to limit the grant of authority to the September 11 
attack'').
---------------------------------------------------------------------------
    Congressional power once ceded to the executive branch tends never 
to be regained, and in 2001, Congress rightly wished to ensure that its 
authorization to use force would not end up eviscerating its vital role 
in the constitutional scheme. As a result, the language of the 2001 
AUMF was drafted with great care. The 2001 AUMF is forward looking, 
insofar as its language is focused on prevention rather than 
retaliation; but it is also backward looking, insofar as force is 
explicitly authorized only against those with responsibility for the 
September 11 attacks.
    The 2001 AUMF does not authorize the United States of military 
force against every terrorist or anti-U.S. extremist the world 
contains. Instead, it focuses squarely on those ``nations, 
organizations, or persons who specifically ``planned, authorized, 
committed, or aided'' the September 11 attacks, as well as those who 
``harbored'' such organizations or persons.
    The AUMF also does not authorize force for the open-ended purpose 
of preventing any and all future acts of terrorism. Instead, it 
authorizes force for a limited and defined purpose: ``to prevent any 
future acts of international terrorism against the United States by 
such nations, organizations, or persons.'' (emphasis added). This 
language, on its face, does not authorize the use of force for the 
purpose of preventing terrorist acts not directed against U.S. 
territory or U.S. persons, and it also does not authorize the use of 
force for the purpose of preventing terrorist attacks by nations, 
organizations, or persons who with no culpability for September 11. 
Furthermore, as the U.S. Supreme Court has several times emphasized, 
the AUMF must be construed as authorizing force only to the degree that 
it is also consistent with the international laws of war. This in turn 
means that any use of force under the AUMF must be consistent with 
longstanding law of war principles relating to necessity, 
proportionality, humanity, and distinction.\14\
---------------------------------------------------------------------------
    \14\ See Hamdan v. Rumsfeld, 548 U.S. 557, 594-95 (2006); Hamdi v. 
Rumsfeld, 542 U.S. 507, 519-21 (2004) (plurality opinion).
---------------------------------------------------------------------------
    For much of the last dozen years, the AUMF provided adequate 
domestic legal authority both for the conflict in Afghanistan and for 
most U.S. drone strikes outside hot battlefields, since most of the 
individuals targeted in early U.S. strikes were reportedly senior 
Taliban or al Qaeda operatives. Early U.S. drone strikes could of 
course still be criticized on other grounds--as strategically foolish, 
or as lacking in transparency and protections against abuse \15\--but 
strictly from the perspective of domestic authorizing legislation, most 
of the early U.S. drones strikes appeared comfortably within the scope 
of the congressionally-granted authority to use force. I believe that 
this has changed in the last few years.
---------------------------------------------------------------------------
    \15\ See, e.g., Rosa Brooks, Take Two Drones and Call me in the 
Morning, Foreign Policy, Sept. 12, 2012. Available at http://
www.foreignpolicy.com/articles/2012/09/12/take--two--drones--and--
call--me--in--the--morning
---------------------------------------------------------------------------
    The September 11 attacks have receded into the past, the war in 
Iraq--which had its own independent AUMF \16\--is over, the war in 
Afghanistan is winding down, and al Qaeda no longer poses the urgent, 
intense, and sustained threat it posed in September 2001. As former 
Secretary of Defense Leon Panetta said in November 2012, the ``core'' 
of al Qaeda has been ``decimated.''\17\ In his March 2013 testimony 
before the Senate Select Committee on Intelligence, Director of 
National intelligence James Clapper similarly observed that ``core'' al 
Qaeda has been ``degraded . . . to a point that the group is probably 
unable to carry out complex, large-scale attacks in the west.''
---------------------------------------------------------------------------
    \16\ http://en.wikipedia.org/wiki/Iraq--Resolution
    \17\ Hon. Leon Panetta, Sec'y of Def., ``The Fight Against al 
Qaeda: Today and Tomorrow,'' Speech Before the Center for a New 
American Security (Nov. 20, 2012), available at http://www.cfr.org/
defense-strategy/panettas-speech-al-qaeda-november-2012/p29547.
---------------------------------------------------------------------------
    This does not, of course, mean that the world no longer contains 
any terrorists or anti-U.S. extremists. The world is unfortunately 
replete with people who resent the United States or oppose U.S. 
policies. Some subset of those people self-identify with the distorted 
brand of Islam favored by al Qaeda and the Taliban, and a further 
subset may be willing to use violence to further their ends.\18\
---------------------------------------------------------------------------
    \18\ Arguably, post-September 11 U.S. counterterrorism policy has 
increased, rather than decreased, the number of people in this 
category.
---------------------------------------------------------------------------
    Not all these people and organizations pose serious or urgent 
threats to the United States, however. I am not privy to classified 
military or intelligence evaluations of the capabilities of foreign 
terrorist organizations, but publicly available information suggests 
that while extremists and terrorists abound, few have both the intent 
and the ability to plan and implement actual attacks against the United 
States.
    Indeed, in his March 2013 testimony SSCI testimony, DNI James 
Clapper did not highlight any organization known to have both the 
current intent and the current capacity to carry out attacks against 
the United States. He noted, for instance, that al Qaeda in the Arabian 
Peninsula (AQAP) continues to view attacks on U.S. soil as ``part of 
[its] transnational strategy,'' but he also suggested that AQAP has 
regional and internal priorities that its leaders may view as taking 
precedence over U.S. operations, given its limited number of 
``individuals who can manage, train, and deploy operatives for U.S. 
operations.''\19\ DNI Clapper suggested that other known international 
terrorist organizations are primarily local or regional in their 
interests and reach. Al Qaeda in Iraq's ``goals inside Iraq will almost 
certainly take precedence over U.S. plotting,'' while ``Somalia-based 
al Shabaab will remain focused on local and regional challenges.'' 
Clapper offered similar assessments of Syria's al Nusra Front, al Qaeda 
in the Islamic Maghreb (AQIM), Nigeria's Boko Haram, and Pakistan's 
Lashkar-e-Tayibba.
---------------------------------------------------------------------------
    \19\ http://www.intelligence.senate.gov/130312/clapper.pdf
---------------------------------------------------------------------------
    Nevertheless, the publicly available evidence suggests that the 
United States continues to use military force outside hot battlefields 
not only against the remnants of ``core'' al Qaeda and the Taliban, but 
also against known or suspected members of other organizations--
including Somalia's al Shabaab--as well as against individuals 
identified by U.S. intelligence only as ``militants'', ``foreign 
fighters'', and ``unknown extremists.''\20\
---------------------------------------------------------------------------
    \20\ http://www.mcclatchydc.com/2013/04/09/188062/obamas-drone-war-
kills-others.html.UZF-Xncq9QI
---------------------------------------------------------------------------
    Insofar as such groups and individuals were unconnected to the 
September 11 attacks and are not planning or carrying out terrorist 
attacks against the United States, the use of force against these 
groups and individuals--at least outside of traditional battlefields--
does not appear to be authorized by the 2001 AUMF.
    The Obama administration has countered this argument by asserting 
that insofar as Congress intended the AUMF to be the functional 
equaivalent of a declaration of war, the AUMF must be read to include 
the implied law of war-based authority to target groups that are 
``associates'' of al Qaeda or the Taliban.
    However, it is not clear that Congress intended to authorize the 
use of force outside of traditional territorial battlefields against 
mere ``associates'' of those responsible for the September 11 attacks. 
It is also not clear how the executive branch defines ``associates'' of 
al Qaeda, and the Obama administration has not offered any public 
explanation of which groups it considers to be ``associates'' of al 
Qaeda or the Taliban.
    The international law of war unquestionably permits parties to a 
conflict to target ``co-belligerents'' of the enemy. On a traditional 
battlefield--such as within the territorial confines of Afghanistan--it 
would clearly be permissible for the United States to target 
individuals and groups that are fighting alongside the Taliban or al 
Qaeda.\21\ It is less clear that this is the case outside ``hot 
battlefields.'' In this murkier context, it is far harder to determine 
what would constitute ``co-belligerency'' with al Qaeda, and executive 
branch officials have provided no clear criteria, nor even a simple 
list of those it regards as ``associates'' under a co-belligerency 
theory.
---------------------------------------------------------------------------
    \21\ Indeed, the AUMF notwithstanding, the United States would be 
justified under international self-defense principles in using force 
against persons or organizations posing an imminent threat to U.S. 
personnel, subject to the principles of necessity and proportionality.
---------------------------------------------------------------------------
    As a result, there is a real danger that the administration's 
assertion that the AUMF authorizes the use of force against AQ 
``associates'' even outside of traditional battlefields could become a 
backdoor way of expanding the AUMF far beyond Congress' intent.
    As noted earlier, in 2001 Congress refused to acquiesce in Bush 
administration proposals to that the AUMF authorize force to ``deter 
and pre-empt any future acts of terrorism or aggression,'' and instead 
opted for language that was far more specific and limiting. If Congress 
now accepts Obama administration claims that force can be used against 
a broad category of persons and organizations determined (based on 
unknown criteria) to be al Qaeda ``associates,'' this would effectively 
turn the AUMF into precisely the open-ended authorization to use force 
that Congress chose to avoid in 2001.
    Congress bears some responsibility for enabling the executive 
branch to assert such virtually unlimited authority to use force, 
however. In the 2006 and 2009 Military Commissions Acts, for instance, 
Congress gave military commissions jurisdiction over individuals who 
are ``part of forces associated with al Qaeda or the Taliban,'' along 
with ``those who purposefully and materially support such forces in 
hostilities against U.S. coalition partners.''\22\
---------------------------------------------------------------------------
    \22\ See, e.g, Military Commissions Act of 2006 (2006 MCA), Pub. L. 
No. 109-366, 120 Stat. 2600 (codified in part at 28 U.S.C. Sec. 2241)
---------------------------------------------------------------------------
    This allowed the Bush administration and later the Obama 
administration to argue that if Congress considers it appropriate for 
U.S. military commissions to have jurisdiction over al Qaeda and 
Taliban associates--including over those ``associates'' who were 
detained in geographical locations far from traditional battlefields--
Congress must believe the executive branch has the authority to detain 
such associates found far from traditional battlefields, and the 
authority to detain must stem from the authority to use force. Indeed, 
by 2009 the Obama administration was arguing in court that at least 
when it comes to detention, the AUMF implicitly authorizes the 
President ``to detain persons who were part of, or substantially 
supported, Taliban or al Qaeda forces or associated forces that are 
engaged in hostilities against the United States or its coalition 
partners.''\23\ (My emphasis).
---------------------------------------------------------------------------
    \23\ http://www.justice.gov/opa/documents/memo-re-det-auth.pdf
---------------------------------------------------------------------------
    But note how far this has shifted from the original language of the 
AUMF: at least with regard to detention, the administration's focus is 
no longer merely on those who were directly complicit in the September 
11 attacks, but on a far broader category of individuals. This 
broadened understanding of executive detention authority was later 
given the congressional nod in the National Defense Authorization Act 
(NDAA) 2012, which used virtually identical language.\24\
---------------------------------------------------------------------------
    \24\ See NDAA for Fiscal Year 2012 Sec. 1021(b)(2), 125 Stat. at 
1562 (authorizing detention of ``A person who was a part of or 
substantially supported al Qaeda, the Taliban, or associated forces 
that are engaged in hostilities against the United States or its 
coalition partners, including any person who has committed a 
belligerent act or has directly supported such hostilities in aid of 
such enemy forces'').
---------------------------------------------------------------------------
    The key subsequent move in the executive branch's gradual expansion 
of the scope of the 2001 AUMF was the conflation of detention authority 
with the authority to target using lethal force. Logically, as the 
Supreme Court noted in 2004,\25\ a party to a conflict must have the 
power to lawfully detain all persons it has the lawful power to kill. 
The greater power must include the lesser: if it would be lawful to 
shoot an enemy combatant, it must be lawful to capture and hold him 
instead. Working backward from this principle, the Obama administration 
appears to have reasoned that if it is lawful to detain an individual, 
it is equally lawful to use force against him.
---------------------------------------------------------------------------
    \25\ Hamdi v. Rumsfeld, http://www.law.cornell.edu/supct/html/03-
6696.ZS.html
---------------------------------------------------------------------------
    This does not follow: while the existence of the greater power 
implies the existence of the lesser power, congressional authorization 
of the lesser power (detention) should not be construed--in the absence 
of express, unambiguous manifestations of congressional intent--to 
include congressional authorization of the greater power (the use of 
military force to target and kill ``associates'' of al Qaeda). However, 
Congress' failure to clarify its intent with regard to the AUMF has 
enabled the executive to read congressional silence as approval.
    Notwithstanding executive branch efforts to shoehorn the vague 
category of ``associates'' into the AUMF, few would dispute that as the 
``drone war'' expands, it has become more and more difficult to view 
all current Obama administration uses of force as congruent with the 
limited authorities granted by Congress on September 14, 2011. In 
February 2012, then-Pentagon General Counsel Jeh Johnson insisted that 
the 2001 AUMF remains the domestic legal ``bedrock'' of the military's 
drone strikes,\26\ and administration representatives have repeatedly 
affirmed this view. But as a recent Hoover Institution white paper 
authored by former Obama official Bobby Chesney, former Bush officials 
Jack Goldsmith and Matt Waxman, and the Brookings Institution's Ben 
Wittes concludes, ``in a growing number of circumstances, drawing the 
requisite connection to the AUMF requires an increasingly complex daisy 
chain of associations--a task that is likely to be very difficult . . . 
in some cases, and downright impossible in others.''\27\
---------------------------------------------------------------------------
    \26\ http://www.cfr.org/counterterrorism/targeted-killings/p9627
    \27\ Robert Chesney et al., Hoover Inst., A Statutory Framework for 
Next-Generation Terrorist Threats (2013), http://media.hoover.org/
sites/default/files/documents/Statutory-Framework-for-Next-Generation-
Terrorist-Threats.pdf.
---------------------------------------------------------------------------
    John Bellinger, former State Department Legal Advisor under 
President Bush, is equally blunt: the AUMF is ``getting a little long 
in the tooth.'' Like it or not, the language of the AUMF is still 
clearly ``tied to the use of force against the people who planned, 
committed, and/or aided those involved in September 11,'' says 
Bellinger. ``The farther we get from [targeting] al Qaeda, the harder 
it is to squeeze [those operations] into the AUMF.'' those involved in 
September 11,'' says Bellinger. ``The farther we get from [targeting] 
al Qaeda, the harder it is to squeeze [those operations] into the 
AUMF.'' \28\
---------------------------------------------------------------------------
    \28\ http://www.washingtonpost.com/world/national-security/
administration-debates-stretching-911-law-to-go-after-new-al-qaeda-
offshoots/2013/03/06/fd2574a0-85e5-11e2-9d71-f0feafdd1394--print.html
---------------------------------------------------------------------------
    If the administration's use of force outside traditional 
battlefields is increasingly hard to justify under the AUMF, what 
should Congress do in response?
    Congress could, of course, choose to do in 2013 what it refused to 
do in 2001, and broaden the existing AUMF to expressly permit the 
executive branch to use force to deter or preempt any future attacks or 
aggression towards the United States or U.S. interests. But such an 
expansion of the AUMF would give this and all future administrations 
virtual carte blanche to wage perpetual war against an undefined and 
infinitely malleable list of enemies, without any time limits or 
geographical restrictions.
    In my view, this would amount to an unprecedented abdication of 
Congress' constitutional responsibilities. In effect, Congress would be 
delegating its warpowers almost wholesale to the executive branch. 
While such a broad authorization to use military force could in theory 
be narrowed or withdrawn by a subsequent Congress, history suggests 
that the expansion of executive power tends to be a one-way ratchet: 
power, once ceded, is rarely regained.
    Mr. Chairman, my guess is that few members of this committee would 
wish to contemplate such a broadened AUMF. What is more, it is worth 
emphasizing once again that while the Bush administration requested 
such open-ended authority to use force immediately after September 11, 
Congress refused to provide it--even at a moment when the terrorist 
threat to the United States was manifestly more severe than it is now.
    Today, the Obama administration has not requested or suggested that 
it sees any need for an expanded AUMF. It would be utterly 
unprecedented for Congress to give the executive branch a statutory 
authorization to use force when the President has not requested it.
    Similar flaws characterize proposals to revise the AUMF to permit 
the President to use force against any organizations he may, in the 
future, specifically identify as posing a threat to the United States, 
based on criteria established by Congress. This is the proposal made by 
the Hoover Institute White Paper co-authored by my colleague Jack 
Goldsmith. He and his co-authors argue that Congress could pass a 
revised AUMF containing ``general statutory criteria for presidential 
uses of force against new terrorist threats but requir[ing] the 
executive branch, through a robust administrative process, to identify 
particular groups that are covered by that authorization of force.''
    While it would surely be useful for Congress to provide greater 
clarity on what, in its view, constitutes a threat sufficient to 
justify the open-ended use of military force--amounting to a 
declaration of armed conflict--such a revised AUMF would still 
effectively delegate to the President constitutional powers properly 
entrusted to Congress. Once delegated, these powers would be difficult 
for Congress to meaningfully oversee or dial back--and, once again, it 
is notable that the President has not requested such a power.
    Mr. Chairman, Senator Inhofe, if what we're concerned about is 
protecting the Nation, there is no need for an expanded AUMF. With or 
without the 2001 AUMF, no one disputes that the President has the 
constitutional authority (and the international law authority) to use 
military force if necessary to defend the United States from an 
imminent attack, regardless of whether the threat emanates from al 
Qaeda or from some as yet unimagined terrorist organization.
    If Congress chooses to revise the AUMF, it would be far more 
appropriate to limit it than to expand it. The 2001 AUMF established--
at least as a matter of domestic U.S. statutory law--an indefinitely 
continuing state of armed conflict between the United States, on the 
one hand, and those responsible for the September 11 attacks, on the 
other hand. This has enabled the executive branch to argue (both as a 
matter of U.S. law and international law) that it is the principles of 
the law of armed conflict that should govern the U.S. use of armed 
force for counterterrorism purposes. But if the law of armed conflict 
is the applicable legal framework through which to understand the AUMF 
and through which to evaluate U.S. drone strikes outside of traditional 
battlefields, there are very few constraints on the U.S. use of armed 
force, and no obvious means to end the conflict.
    Compared to other legal regimes, including both domestic law 
enforcement rules and the international law on self defense, the law of 
armed conflict is extremely permissive with regard to the use of armed 
force. The law of armed conflict permits the targeting both of enemy 
combatants and their co-belligerents. It also allows enemy combatants 
to be targeted by virtue of their status, rather than their activities: 
it is permissible to target enemy combatants while they are sleeping, 
for instance, even though they pose no ``imminent' threat while asleep, 
and the lowest-ranking enemy soldier can be targeted just as lawfully 
as the enemy's senior-most military leaders. Indeed, uniformed cooks 
and clerks with no combat responsibilities can be targeted along with 
combat troops.
    It is this highly permissive law of armed conflict framework that 
has enabled the executive branch to assert that ``associates'' of al 
Qaeda and the Taliban may be targeted beyond traditional battlefields, 
even though this expansion of the use of force beyond those responsible 
for September 11 was not contemplated by Congress in the 2001 AUMF. 
Similarly, it is the law of armed conflict framework that has permitted 
the executive branch to assert the authority to target ever lower-level 
terrorists and suspected ``militants,'' rather than restricting drone 
strikes to those targeting the most dangerous ``senior'' operatives. It 
is also the law of armed conflict framework that permits the executive 
branch to assert that it may target even those individuals and 
organizations that pose no imminent threat to the United States, in the 
normal sense of the word ``imminent.''
    But as the threat posed by al Qaeda dissipates and U.S. troops 
withdraw from Afghanistan, it is appropriate for the United States to 
transition to a domestic (and international) legal framework in which 
there are tighter constraints on the use of military force. Congress 
can help this transition along by clarifying that the existing AUMF is 
not an open-ended mandate to wage a ``forever war,'' and requiring the 
President to satisfy more exacting legal standards before military 
force is authorized or used.
    In the event that the President becomes aware of a threat so 
imminent and grave he cannot wait for congressional authorization prior 
to using military force, there is no dispute that he can rely on his 
inherent constitutional powers to take appropriate action until the 
threat has been eliminated or until Congress can act. However, by 
expressly granting the power to declare war and associated powers to 
Congress, our Constitution presumes that the President will only in 
rare circumstances rely solely on his inherent executive powers to use 
military force. Historically, non-congressionally authorized uses of 
force by the President have generally been reserved for rare and 
unusual circumstances, and this is as it should be.
    Beyond these rare situations of extreme urgency, if the President 
believes that there is a sustained and intense threat to the United 
States, he can and should provide Congress with detailed information 
about the threat, and request that Congress authorize the use of 
military force to address the specific threat posed by a specific state 
or organization.
    Congress should authorize the use of military force in these 
circumstances only--there is no need for Congress to preemptively 
authorize the President to use military force indefinitely against 
unspecified threats that the President has not yet identified. If 
Congress does authorize the use of military force at the President's 
request, the force authorized should be carefully tailored to the 
specific threat. Furthermore, Congress should be explicit about whether 
an AUMF is acknowledging or authorizing an ongoing armed conflict, on 
the one hand, or whether it is simply authorizing the limited use of 
force for self-defense, on the other hand.
    International law imposes criteria for the use of force in national 
self-defense that are far more stringent than the criteria for using 
force in the course of an armed conflict that is ongoing. Unlike the 
international law of armed conflict, the international law of self-
defense permits states to use force only to respond to an armed attack 
or to prevent an imminent armed attack, and the use of force in self 
defense is subject to the principles of necessity and proportionality. 
Under self defense rules (unlike law of armed conflict rules) 
individuals who pose no imminent threat cannot be targeted, and 
inquiries into imminence, necessity and proportionality tend to 
restrict the use of force in self defense to strikes against those 
who--by virtue of their operational seniority or hostile activities--
pose threats that are urgent and grave, rather than speculative, 
distant, or minor.
    For this reason, I believe that if Congress wishes to refine or 
clarify the AUMF, it should consider limiting the AUMF's geographic 
scope, limiting its temporal duration, limiting the authorized use of 
force to that which would be considered permissible self defense under 
international law, or all three.
    Expressly limiting the AUMF's geographic scope to Afghanistan and/
or other areas in which U.S. troops on the ground are actively engaged 
in combat, for instance, would clarify that the ongoing armed conflict 
(and the applicability of the law of armed conflict) is limited to 
these more traditional battlefield situations. As noted above, such a 
geographical limitation would by no means undermine the President's 
ability to use force to protect the United States from threats 
emanating from outside of the specified region. Such a geographical 
limitation would merely make it clear that any presidential desire to 
use force elsewhere would require him either to request an additional 
narrowly drawn congressional authorization to use force, or would 
require that any non-congressionally authorized use of force be 
justified--constitutionally and internationally--on self defense 
grounds, by virtue of the gravity and imminence of a specific threat.
    Limiting the AUMF's temporal scope could be accomplished by adding 
a ``sunset'' provision to the AUMF. The current AUMF could be set to 
expire when U.S. troops cease combat operations in Afghanistan, for 
instance, or in 2015, whichever date comes first. Here again, such a 
limitation would not preclude the President from requesting an 
extension or a new authorization to use force, if clearly justified by 
specific circumstances, nor would it preclude the President from 
relying on his inherent constitutional powers if force becomes 
necessary to prevent an imminent attack.
    Finally, the AUMF could be revised to clarify Congress' view of the 
applicable legal framework. Congress could state explicitly that it 
authorizes the President to engage in an ongoing armed conflict within 
the borders of Afghanistan between the United States and al Qaeda, the 
Taliban, and their co-belligerents, but that it does not currently 
authorize the initiation or continuation of an armed conflict in any 
other place, and expects therefore that any U.S. military action 
elsewhere or against other actors shall be governed by principles of 
self-defense rather than by the law of armed conflict.
    There are many possible ways for Congress to signal its commitment 
to preventing the AUMF from being used to justify a ``forever war.'' 
Each of these approaches has both benefits and drawbacks, and each 
would require significant further discussion. But I believe that 
Congress' focus should be on ensuring that war remains an exceptional 
state of affairs, not the norm. At a minimum, this should preclude any 
Congressional expansion of existing AUMF authorities.
    Mr. Chairman, let me close with a plea for perspective. We live in 
a dangerous world: adversarial states such as North Korea and Iran 
remain bellicose; the changing role of near-peer powers such as China 
and Russia poses challenges to U.S. interests and global stability; the 
Middle East remains awash in violence, and technological advances could 
place lethal tools in the hands of irresponsible actors. We also face 
unprecedented challenges from our increased global interdependence: 
climate change, the interdependence of global financial systems and our 
ever-increasing reliance on the internet all create new 
vulnerabilities. Against the backdrop of these many dangers, old and 
new, the fear of terrorist attack should not be the primary driver of 
U.S. national security policy.
    Terrorism is a very real problem, and we cannot ignore it, any more 
than we should ignore violent organized crime or large-scale public 
health threats. Like everyone else, I worry about terrorists getting 
ahold of weapons of mass destruction. At the same time, we should 
recognize that terrorism is neither the only threat nor the most 
serious threat the United States faces.\29\ With the sole exception of 
2001, terrorist groups worldwide have never succeeded in killing more 
than a handful of Americans citizens in any given year. According to 
the State Department, 17 American citizens were killed by terrorists in 
2011, for instance. The terrorist death toll was 15 in 2010 and 9 in 
2009.\30\
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    \29\ http://www.foreignpolicy.com/articles/2013/03/04/fp--survey--
future--of--war
    \30\ http://www.state.gov/j/ct/rls/crt/2011/index.htm
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    These deaths are tragedies, and we should continue to strive to 
prevent such deaths-but we should also keep the numbers in perspective. 
On average, about 55 Americans are killed by lightning strikes each 
year,\31\ and ordinary criminal homicide claims about 16,000 U.S. 
victims each year.\32\ No one, however, believes we need to give the 
executive branch extraordinary legal authorities to keep Americans from 
venturing out in electrical storms, or use armed drones to preemptively 
kill homicide suspects.
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    \31\ http://usatoday30.usatoday.com/weather/news/story/2012-01-09/
lightning-deaths-storms-weather/52504754/1
    \32\ http://www.cdc.gov/nchs/data/nvsr/nvsr61/nvsr61--06.pdf
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    What's more, we should keep in mind that military force is not the 
only tool in the U.S. arsenal against terrorism.\33\ Since September 
11, we've gotten far more effective at tracking terrorist activity, 
disrupting terroristpara.mmunications and financing, catching 
terrorists and convicting them in civilian courts,\34\ and a wide range 
of other counterterrorism measures. Much of the time, these non-lethal 
approaches to counterterrorism are as effective as targeted killings. 
In fact, there's growing reason to fear that the expansion of U.S. 
drone strikes is strategically counterproductive.
---------------------------------------------------------------------------
    \33\ http://www.whitehouse.gov/sites/default/files/
counterterrorism--strategy.pdf
    \34\ http://www.justice.gov/cjs/
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    Former Vice Chair of the Joint Chiefs of Staff General James 
Cartwright recently expressed concern that as a result of U.S. drone 
strikes, the United States may have ``ceded some of our moral high 
ground.'' \35\ Retired General Stanley McChrystal has expressed similar 
concerns: ``The resentment created by American use of unmanned strikes 
. . . is much greater than the average American appreciates. They are 
hated on a visceral level, even by people who've never seen one or seen 
the effects of one,'' and fuel ``a perception of American arrogance.'' 
\36\ Former Director of National Intelligence Dennis Blair agrees: the 
United States needs to ``pull back on unilateral actions . . . except 
in extraordinary circumstances,'' Blair told CBS news in January. U.S. 
drone strikes are ``alienating the countries concerned [and] . . . 
threatening the prospects for long-term reform raised by the Arab 
Spring . . . [U.S. drone strategy has us] walking out on a thinner and 
thinner ledge and if even we get to the far extent of it, we are not 
going to lower the fundamental threat to the United States any lower 
than we have it now.'' \37\
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    \35\ http://m.npr.org/news/Politics/178753575?textSize=small
    \36\ http://www.telegraph.co.uk/news/worldnews/asia/pakistan/
9787912/Stanley-McChrystal-criticises-reliance-on-drones-as-strikes-
hit-Pakistan.html
    \37\ http://www.politico.com/news/stories/0711/
60199.htmlixzz2NUC4UwYa
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    Mr. Chairman, Senator Inhofe, I believe it is past time for a 
serious overhaul of U.S. counterterrorism strategy. This needs to 
include a rigorous cost-benefit analysis of U.S. drone strikes, one 
that takes into account issues both of domestic legality and 
international legitimacy, and evaluates the impact of targeted killings 
on regional stability, terrorist recruiting, extremist sentiment, and 
the future behavior or powerful states such as Russia and China. If we 
undertake such a rigorous cost-benefit analysis, I suspect we may come 
to see scaling back on kinetic counterterrorism activities less as an 
inconvenience than as a strategic necessity--and we may come to a new 
appreciation of counterterrorism measures that don't involve missiles 
raining from the sky.
    This doesn't mean we should never use military force against 
terrorists. In some circumstances, military force will be justifiable 
and useful. But it does mean we should rediscover a longstanding 
American tradition: reserving the use of exceptional legal authorities 
for rare and exceptional circumstances.
    Thank you for the opportunity to testify today.
      
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
        
    Chairman Levin. Thank you very much.
    Mr. Corn?

 STATEMENT OF MR. GEOFFREY CORN, PROFESSOR OF LAW, SOUTH TEXAS 
                         COLLEGE OF LAW

    Mr. Corn. Mr. Chairman and members of the committee, thank 
you for the opportunity to share my views on these important 
questions. I should note at the outset that these views are 
informed significantly by my own personal background, having 
spent 22 years in the Army both as an intelligence officer and 
as a judge advocate, including my last year as the Army's 
senior advisor on the law of war.
    The authority for, the scope of, and the means used to 
prosecute the armed conflict with al Qaeda, the Taliban, and 
associated forces are clearly impacted by complex 
considerations of law, policy, strategy, intelligence, and 
diplomacy. The AUMF reflects the combined will of our Nation's 
political branches to include the full might of the U.S. Armed 
Forces within the range of available options for addressing 
this threat.
    Although the AUMF provides a very general grant of 
authority, this authority is not unlimited or a blank check to 
wage war anywhere in the world against any group or perhaps 
individual who is hostile against the United States. Instead, I 
believe the scope, methods, and means are all rationally framed 
by both the authorization's language and its implicit 
incorporation of the law of armed conflict.
    Because I do not believe there is inconsistency between the 
nature of U.S. operations to date and these inherent 
limitations, I do not believe it is necessary at this point in 
time to modify the AUMF. Instead, I believe that Congress 
should continue to engage in oversight to remain fully apprised 
of the strategic, operational, and at times tactical 
decisionmaking processes that result in the employment of U.S. 
combat power pursuant to the statute, enabling Congress to 
ensure that such use falls within the scope of an authorization 
targeted at al Qaeda, intended to protect the Nation from 
future terrorist attacks, and that these operations reflect 
unquestioned commitment to the principles of international law 
that regulate the use of military force during any armed 
conflict.
    I believe the AUMF effectively addresses the belligerent 
threat against the United States posed by terrorist groups. I 
emphasize the term ``belligerent'' for an important reason. It 
is obvious that the AUMF has granted authority to use the 
Nation's military power against threats falling within its 
scope. Therefore, only those organizations that pose a risk of 
sufficient magnitude to justify invoking the authority 
associated with armed conflict should be included within that 
scope as a result of their affiliation with al Qaeda. 
Determining what groups properly fall within this scope is, 
therefore, both critical and challenging.
    The AUMF provides the President with the necessary 
flexibility to tailor U.S. operations to the evolving nature of 
this unconventional enemy, maximizing the efficacy of U.S. 
efforts to deny al Qaeda the freedom of action they possessed 
in Afghanistan prior to Operation Enduring Freedom.
    In reaction to this evolution, the United States has 
employed combat power against what the prior panel referred to 
as associated forces or co-belligerents of al Qaeda, 
belligerent groups assessed to adhere to the overall terrorist 
objectives of the organization and engage in hostilities 
alongside al Qaeda directed against the United States or its 
interests.
    The focus on shared ideology, tactics, and indicia of 
connection between high-level group leaders seems both logical 
and legitimate for including these offshoots of al Qaeda within 
the scope of the AUMF as co-belligerents, a determination that, 
based on publicly available information, has to date been 
limited to groups seeking the sanctuary of the Afghanistan-
Pakistan border areas, Yemen, or Somalia.
    If Congress does, however, choose to revise the AUMF, I do 
not believe that the revision should incorporate an exclusive 
list of defined co-belligerent groups, a geographic scope 
limitation, or some external oversight of targeting decisions, 
all of which would undermine the efficacy of U.S. operations by 
signaling to the enemy limits on U.S. operational and tactical 
reach.
    It is an operational and tactical axiom that insurgent and 
non-state threats rarely seek the proverbial toe-to-toe 
confrontation with clearly superior military forces. Al Qaeda 
is no different. Indeed, their attempts to engage in such 
tactics in the initial phases of Operation Enduring Freedom 
proved disastrous. Incorporating such limitations into the AUMF 
would, therefore, be inconsistent with the operational 
objective of seizing and retaining the initiative against this 
unconventional enemy and the strategic objective of preventing 
future terrorist attacks against the United States.
    Finally, I believe to target decisionmaking during armed 
conflict is a quintessential command function and that the 
President, acting in his own capacity or through subordinate 
officers, should make these decisions. He and his subordinates 
bear an obligation to ensure compliance with the law of armed 
conflict and other principles of international law when 
employing U.S. combat power. Every subordinate officer in the 
chain of command is sworn to uphold and defend the Constitution 
which, by implication, also requires compliance with this law.
    I believe the level of commitment to ensuring such 
compliance in structure, process, education, training, and 
internal oversight is more significant today than at any time 
in our Nation's history. As one familiar with all these aspects 
of the compliance process, I am discouraged by the common 
assertion that there is insufficient oversight for targeting 
decisions.
    Furthermore, I believe few people better understand the 
immense moral burden associated with a decision to order lethal 
attack than experienced military leaders who never take these 
decisions lightly. If our confidence in these leaders to make 
sound military decisions is sufficient to entrust to them the 
lives of our sons and daughters--and on this point, again I 
must admit my self-interest as my son is a second-year cadet in 
the U.S. Air Force Academy and my brother is a serving colonel 
in the United States Army--I believe it must be sufficient to 
judge when and how to employ lethal combat power against an 
enemy. These leaders spend their entire professional careers 
immersed in the operational, moral, ethical, and legal aspects 
of employing combat power. I just do not believe some external 
oversight mechanism or a Federal judge is more competent to 
make these extremely difficult and weighty judgments as the 
people that this Nation entrusts for that responsibility.
    Finally, I would like to make one comment on the very hotly 
discussed issue of associated forces and the scope of the AUMF. 
In my view, when the administration refers to an associated or 
affiliated force, it is referring to a process of mutation that 
this organization undergoes. Obviously, we are dealing with an 
enemy that is going to seek every asymmetric tactic to avoid 
the capability of the United States to disrupt or disable its 
operations. Part of that tactic, I think, is to recruit and 
grow affiliated organizations.
    I certainly understand the logic of wanting to include 
those organizations within the scope of a revised AUMF. My 
concern echoes that of Senator Inhofe, where the risk is if you 
open that Pandora's box, what other changes to this authority 
might be included in the statute which, I believe, could 
denigrate or limit the effectiveness of U.S. military 
operations. So while I believe Congress absolutely has an 
important function to ensure that the use of force under the 
statute is consistent with the underlying principles that frame 
the enactment of the AUMF, which is to defeat al Qaeda as an 
entity in the corporate sense and protect the United States 
from future terrorist attacks, I do not believe at this point 
in time it is necessary to modify the statute.
    Thank you.
    [The prepared statement of Mr. Corn follows:]
               Prepared Statement by Mr. Geoffrey S. Corn
    The authority for, scope of, and means used to prosecute the armed 
conflict with al Qaeda are all critically important questions for our 
Nation, our Armed Forces, and elected officials responsible for 
establishing U.S. national security policy. As in the prosecution of 
any armed conflict, each of these issues is impacted by complex 
considerations of law, policy, strategy, intelligence, and diplomacy. 
The Authorization for the Use of Military Force (AUMF) enacted by 
Congress in response to the attacks on September 11, 2001, has served 
and continues to serve as the key source of constitutional authority 
for the conduct of military operations directed against these 
belligerent opponents. This Joint Resolution expressly manifests the 
combined will of our Nation's political branches to include the full 
might of the U.S. Armed Forces within the range of available options 
for addressing this threat. It does not, however, explicitly define the 
scope of such military operations, nor limitations on the methods or 
means of warfare utilized during the course of such operations. This is 
consistent with past practice of providing similar authorizations for 
the conduct of armed hostilities, and is therefore unsurprising.
    The undefined scope does not, however, suggest an unlimited grant 
of authority, or what some have characterized as a ``blank check'' to 
wage war anywhere in the world against any group (or perhaps 
individual) deemed by the President to present a threat of future 
terrorist attacks. Instead, as I will explain in more detail below, the 
scope, methods, and means are all rationally framed by both the 
authorization's language and its implicit incorporation of the law of 
armed conflict. Because I do not believe there is sufficient indication 
of any inconsistency between the nature of U.S. military operations 
conducted pursuant to the AUMF and these inherent limitations, I 
respectfully oppose any effort to modify the Joint Resolution. Instead, 
I believe that Congress should work with both the executive and the 
Department of Defense to remain fully appraised of the strategic, 
operational, and at times tactical decisionmaking process that results 
in the employment of U.S. combat power pursuant to the AUMF. This will 
enable Congress to ensure that these operations continue to fall within 
the scope of an authorization targeted at al Qaeda, the specific 
terrorist belligerent group assessed as responsible for the September 
11 terrorist attacks, and that these operations reflect unquestioned 
commitment to the principles of international law that regulate the use 
of military force, namely the law of armed conflict.
    In support of this opinion, I will address the questions provided 
by the committee, although I note that in some cases I have paraphrased 
these questions.

    1.  What persons and organizations are covered by the existing AUMF 
and does it cover al Qaeda and associated forces that may have had 
nothing to do with the terrorist attacks of September 11th, 2001?

    I believe the AUMF, properly interpreted, covers al Qaeda as a 
belligerent organization, including offshoots of what is generally 
understood to be the ``original'' al Qaeda. Determining enemy ``order 
of battle'' (identifying the enemy organization) is a complex endeavor 
in any armed conflict, but is an essential foundation for effective 
threat identification. In the current conflict, this process has 
apparently resulted in the determination that al Qaeda, as an 
organization, has evolved since the enactment of the AUMF. In reaction 
to this evolution, the United States has employed combat power against 
new iterations of al Qaeda, and also against ``associated forces,'' or 
cobelligerents, of al Qaeda--belligerent groups that adhere to the 
overall terrorist objectives of the organization and engage in 
hostilities ``alongside'' al Qaeda [quoting Jeh Johnson] intended to 
further these objectives (including threats directed against the United 
States, its Armed Forces, and its interests abroad)--in Pakistan, the 
Arabian peninsula, and the Horn of Africa. I believe this is both 
operationally logical and consistent with the AUMF. By providing 
authority to use all ``necessary and appropriate'' force against those 
groups responsible for the September 11 attacks in order to prevent 
future attacks, the AUMF provided the President with the necessary 
flexibility to tailor U.S. operations to the evolving nature of this 
unconventional threat. In this asymmetric struggle, the authority in 
the AUMF provided a logical method to ensure that the efforts of al 
Qaeda both to morph in response to the overwhelming U.S. combat 
capability and to seek sanctuary in locations that they believe provide 
the freedom of action they possessed in Afghanistan prior to Operation 
Enduring Freedom would not hinder the efficacy of the U.S. response. In 
short, just as the nature of the threat has evolved, the scope of 
military operations conducted pursuant to the AUMF must also evolve.
    Identifying a group as a ``co-belligerent'' with al Qaeda is 
therefore the critical intelligence determination that justifies 
subjecting that group (and its belligerent operative members) to 
operations pursuant to the AUMF. In my opinion, the executive has acted 
rationally and in good faith in making these assessments. While I am 
not privy to this decisionmaking process, open source information 
indicates that the al Qaeda co-belligerent determination has been 
limited to groups seeking sanctuary in Afghanistan/Pakistan border 
areas, Yemen, and Somalia. It should be obvious that this co-
belligerent determination cannot be based on traditional indicia of co-
belligerency applicable in inter-state hostilities, such as mutual 
defense treaties or involvement in hostilities of regular armed forces. 
The focus on shared ideology, tactics, and indicia of connection 
between high-level group leaders therefore seems to emphasizes both 
logical and legitimate intelligence indicators of which offshoots of al 
Qaeda fall into the category of co-belligerent, and therefore within 
the scope of the AUMF. For example, in prosecuting Somali terrorist 
Ahmed Warsame, Federal prosecutors stated in court papers that leaders 
of the Shabaab group in Somali had sent Warsame to Yemen for training 
with the ``core'' al Qaeda offshoot, al Qaeda in the Arabian Peninsula. 
This is an example of reliance on indicia of collaboration in training 
and operational tactics as factors that would demonstrate co-
belligerent status.
    Finally, I do not believe the AUMF should be amended to incorporate 
either a list of defined co-belligerent groups or the co-belligerent 
assessment criteria. This would undermine the efficacy of U.S. threat 
identification efforts by signaling to this unconventional enemy 
exactly where to seek sanctuary and how to avoid the consequence of 
falling within the scope of the AUMF. In so doing, it would 
unnecessarily provide a windfall to al Qaeda and enhance enemy freedom 
of action, a consequence that would be fundamentally inconsistent with 
the strategic and operational military objective of keeping this enemy 
constantly off balance and retaining initiative for U.S. forces.

    2.  Does the AUMF appropriately cover current threats against the 
United States, and should it be expanded to cover terrorist groups that 
are not associated with al Qaeda?

    Based on publically available information, and the fact that 
President Obama has not publically asserted a need to expand the scope 
of the AUMF, I believe the AUMF does currently address the belligerent 
threat against the United States posed by terrorist groups. I emphasize 
the term belligerent for an important reason. It is obvious that the 
AUMF is a grant of authority to use the Nation's combat power against 
threats falling within its scope. As such, it should be limited to only 
those organizations that, as the result of both the organization and 
intensity of their threat capabilities, justify crossing the threshold 
from law enforcement response to armed hostilities. I do not believe 
that the existence of a terrorist threat to the United States alone 
justifies crossing this threshold. The United States has for decades 
confronted terrorist threats that fall below this threshold, and will 
certainly continue to confront such threats in the future. Expanding 
the AUMF to include such threats would be inconsistent with the 
fundamental structure of the law of armed conflict, which seeks to 
limit situations of armed conflict to those that indicate a level of 
intensity that indicates a de facto departure from peacetime law 
enforcement response authorities. I emphasize, however, that this 
opinion is based on publically available information. If classified 
information were to indicate that other terrorist groups represent a 
threat of analogous magnitude to that of al Qaeda, including them 
within the scope of the AUMF would be legitimate.
    From the inception of the military response against al Qaeda, even 
the inclusion of this group within the scope of the AUMF created 
substantial legal controversy, controversy that continues to this day. 
Many legal scholars, and some of our closest allies, reject the U.S. 
position that a nation may properly claim to be engaged in an armed 
conflict against a transnational terrorist group like al Qaeda. While I 
disagree with this interpretation of international law, and believe 
that for the United States this is no longer subject to debate, I do 
not believe that there is a legitimate justification to characterize 
the response to all terrorist threats--existing or emerging--as armed 
conflicts.
    Accordingly, while it is almost certain that there are indeed some 
terrorist threats that do not fall within the scope of the AUMF 
(because they are not properly characterized as members of the Taliban, 
al Qaeda, or co-belligerents), this does not mean the AUMF is either 
under-inclusive or that it should be amended to include all such groups 
within its scope. If these groups are not considered by the commander 
in chief to be co-belligerents, they are properly excluded from the 
scope of the authorization. Nor should the AUMF be amended to include 
within its scope any jihadist motivated terrorist group. First, no 
terrorist group should be considered for incorporation into the 
authority provided by the AUMF unless and until it poses a threat of 
analogous magnitude as that associated with al Qaeda--considerations 
that, as noted above, would justify incorporating them within the scope 
of the AUMF (assuming also that such groups posed a threat of 
sufficient magnitude and imminence to trigger the inherent right of 
self-defense pursuant to the jus ad bellum). Second, if at some point 
either the President and/or Congress believes that although not 
affiliated with al Qaeda, a terrorist group manifests a level of 
organization and risk that justifies subjecting it to this authority, 
then at that point they can addressed through a distinct authorization 
for the use of force, assuming the use of such force would satisfy 
international law requirements. Such a response would be equally 
applicable if and when the threat to an ally posed by such a group was 
considered of such significance as to necessitate a U.S. military 
response.
    Finally, responses to this question must also incorporate the 
President's authority to always act to defend the Nation from an actual 
or imminent threat of armed attack against the Nation or its Armed 
Forces overseas (and to rescue Americans threatened overseas). This 
authority extends to threats posed by non-state groups, including 
terrorist organizations that are not considered al Qaeda co-
belligerents. The conclusion that ``other'' terrorist threats do not 
fall within the scope of the AUMF therefore does not subject the Nation 
to any type of risk that has not existed for decades. On the contrary, 
the consensus government view that a terrorist threat may trigger this 
inherent defensive authority (an interpretation that while not 
unprecedented, was not nearly as clear before the terrorist attacks of 
September 11) suggests that this risk is less substantial today than 
before enactment of the AUMF.

    3.  What is the geographic scope of the AUMF and under what 
circumstances may the United States attack belligerent targets in the 
territory of another country?

    In my opinion, there is no need to amend the AUMF to define the 
geographic scope of military operations it authorizes. On the contrary, 
I believe doing so would fundamentally undermine the efficacy of U.S. 
counterterrorism military operations by overtly signaling to the enemy 
exactly where to pursue safe-haven and de facto immunity from the reach 
of U.S. power. This concern is similar to that associated with 
explicitly defining co-belligerents subject to the AUMF, although I 
believe it is substantially more significant. It is an operational and 
tactical axiom that insurgent and non-state threats rarely seek the 
proverbial ``toe to toe'' confrontation with clearly superior military 
forces. Al Qaeda is no different. Indeed, their attempts to engage in 
such tactics in the initial phases of Operation Enduring Freedom proved 
disastrous, and ostensibly caused the dispersion of operational 
capabilities that then necessitated the co-belligerent assessment. 
Imposing an arbitrary geographic limitation of the scope of military 
operations against this threat would therefore be inconsistent with the 
strategic objective of preventing future terrorist attacks against the 
United States.
    I believe much of the momentum for asserting some arbitrary 
geographic limitation on the scope of operations conducted to disrupt 
or disable al Qaeda belligerent capabilities is the result of the 
commonly used term ``hot battlefield.'' This notion of a ``hot'' 
battlefield is, in my opinion, an operational and legal fiction. 
Nothing in the law of armed conflict (LOAC) or military doctrine 
defines the meaning of ``battlefield.'' Contrary to the erroneous 
assertions that the use of combat power is restricted to defined 
geographic locations such as Afghanistan (and previously Iraq), the 
geographic scope of armed conflict must be dictated by a totality 
assessment of a variety of factors, ultimately driven by the strategic 
end state the Nation seeks to achieve. The nature and dynamics of the 
threat--including key vulnerabilities--is a vital factor in this 
analysis. These threat dynamics properly influence the assessment of 
enemy capabilities and vulnerabilities, which in turn drive the 
formulation of national strategy, which includes determining when, 
where, and how to leverage national power (including military power) to 
achieve desired operational effects. Thus, threat dynamics, and not 
some geographic ``box'', have historically driven and must continue to 
drive the scope of armed hostilities. The logic of this premise is 
validated by (in my opinion) the inability to identify an armed 
conflict in modern history where the scope of operations was legally 
restricted by a conception of a ``hot'' battlefield. Instead, threat 
dynamics coupled with policy, diplomatic considerations and, in certain 
armed conflicts the international law of neutrality, dictate such 
scope. Ultimately, battlefields become ``hot'' when persons, places, or 
things assessed as lawful military objectives pursuant to the LOAC are 
subjected to attack.
    I do not, however, intend to suggest that it is proper to view the 
entire globe as a battlefield in the military component of our struggle 
against al Qaeda, or that threat dynamics are the only considerations 
in assessing the scope of military operations. Instead, complex 
considerations of policy and diplomacy have and must continue to 
influence this assessment. However, suggesting that the proper scope of 
combat operations is dictated by a legal conception of ``hot'' 
battlefield is operationally irrational and legally unsound. 
Accordingly, placing policy limits on the scope of combat operations 
conducted pursuant to the legal authority provided by the AUMF is both 
logical and appropriate, and in my view has been a cornerstone of U.S. 
use of force policy since the enactment of the AUMF. In contrast, 
interpreting the LOAC to place legal limits on the scope of such 
operations to ``hot'' battlefields, or imposing such a legal limitation 
in the terms of the AUMF, creates a perverse incentive for the 
belligerent enemy by allowing him to dictate when and where he will be 
subject to lawful attack.
    I believe this balance between legal authority and policy and 
diplomatic considerations is reflected in what is commonly termed the 
``unable or unwilling'' test for assessing when attacking an enemy 
belligerent capability in the territory of another country is 
permissible. First, it should be noted that the legality of an attack 
against an enemy belligerent is determined exclusively by the LOAC when 
the country where he is located provides consent for such action (is 
the target lawful within the meaning of the law and will attack of the 
target comply with the targeting principles of distinction, 
proportionality, and precautions in the attack). In the unusual 
circumstance where a lawful object of attack associated with al Qaeda 
and therefore falling within the scope of the AUMF is identified in the 
territory of another country not providing consent for U.S. military 
action, policy, and diplomacy play a decisive role in the attack 
decisionmaking process. Only when the United States concludes that the 
country is unable or unwilling to address the threat will attack be 
authorized, which presupposes that the nature of the target is 
determined to be sufficiently significant to warrant a non-consensual 
military action in that territory. I believe the executive is best 
positioned to make these judgments, and that to date they have been 
made judiciously. I also believe that imposing a statutory scope 
limitation would vest terrorist belligerent operatives with the 
benefits of the sovereignty of the state they exploit for sanctuary. It 
strikes me as far more logical to continue to allow the President to 
address these sovereignty concerns through diplomacy, focused on the 
strategic interests of the Nation.

    4.  What role should Congress play in the designation of 
organizations against which--and countries in which--lethal force may 
be used? Should there be a formal requirement to notify Congress of new 
designations and should such designations be subject to congressional 
approval of disapproval?

    I believe Congress plays an essential constitutional role in 
authorizing the use of U.S. military force. When confronting a 
conventional state threat, it is obvious that in exercising this role, 
Congress will designate the object of such an authorization. However, 
even in this situation, Congress has not designated the ``groups'' 
falling within the scope of the authorization. Instead, that 
determination is left to the President in his capacity as commander in 
chief. Nor would Congress ordinarily dictate the scope of such 
operations, but rather, as noted above, allows the President to respond 
appropriately to threat dynamics. This authorization modality is 
obviously more complicated when the object is a non-state transnational 
organization. However, I believe that the nature of such a threat in no 
way justifies deviation from this modality. The AUMF did not identify 
any single group or location as the object of the U.S. military 
response to the terror attacks of September 11, 2001, instead leaving 
to the executive the responsibility to ``take care that the law be 
faithfully executed'' by assessing the intelligence related to those 
attacks and rendering judgments as to what type of response was 
``necessary and appropriate.'' I believe that process continues in full 
force to this day, and has provided the necessary strategic and 
operational flexibility to meet the threat effectively and efficiently.
    I do believe Congress, in exercising its authorization function, 
does have both a right and a responsibility to remain seized of the 
nature of operations conducted pursuant to the AUMF. In so doing, 
Congress will be better able to continually assess whether the link 
between the objectives of the authorization and the nature of U.S. 
operations conducted pursuant thereto remains sufficient. In this 
regard, Congress always retains an ``approval/disapproval'' process 
through its ability to amend or even repeal the AUMF. Thus, while I 
encourage continued efforts to inform Congress of such operations, I 
believe that altering the current statutory framework should only be 
considered if and when Congress believes this link has become 
unjustifiably attenuated.

    5.  What is the duration of the AUMF and how will we know when this 
conflict is over?

    As long as the AUMF is in force, and the executive determines that 
al Qaeda and/or al Qaeda co-belligerents continue to represent viable 
threats to the Nation, the AUMF will provide legal authority for 
military operations executed to disable and/or disrupt such threats. 
When this conflict will be over is a far more complex question. 
Ultimately, I believe the answer must be dictated by the assessment--
ideally made cooperatively between the President and Congress--that the 
nature of the threat falling within the scope of the AUMF has been 
degraded to such an extent that there is no longer a legitimate 
necessity to utilize U.S. combat power as a responsive measure. Lacking 
the insight into the threat dynamics that I believe are essential to 
make this assessment, I cannot opine as to the appropriate indicia to 
justify this conclusion.

    6.  Has the AUMF lost its legal force, is it still relevant to the 
current conflict, or would it be better to modify or repeal it?

    It is evident from my prior answers that I believe the AUMF has not 
lost its legal force and that it is indeed still relevant to the 
current conflict. The use of U.S. military capability in a manner that 
implicitly relies on the LOAC to justify the methods and means of 
operations can be justified only pursuant to such an authorization or 
in the exercise of self-defense against an actual or imminent attack 
against the Nation or its Armed Forces. Accordingly, the AUMF continues 
to provide the principal source of authority to attack enemy 
belligerent operatives and their capabilities, to detain them upon 
capture, and to subject them to trial by military commission for 
violations of the laws and customs of war.
    It is equally evident from my answers above that I do not believe 
that it is necessary or logical to repeal or amend the AUMF.

    7.  Detention authority and the AUMF.

    I believe that the enactment of section 1021 of the National 
Defense Authorization Act for Fiscal Year 2012 is relevant to the 
limited extent that it reaffirmed congressional support for both the 
AUMF and the need to utilize authority derived from the LOAC to address 
the al Qaeda threat. Would military detention authority be affected if 
Congress were to enact a new AUMF? The answer must be yes, but the 
nature of the authorization would dictate how. First, should such an 
authorization expand the scope of groups subject to the use of force, 
then captured members of these groups would arguably fall within the 
scope of military detention authority, as this expansion would 
presumably indicate a U.S. determination that armed conflict exists 
with these additional groups (unless Congress chose to restrict 
detention, which seems illogical and improbable). Second, such 
authorization might also explicitly authorize detention of captured 
members of groups within its scope. While I do not believe such express 
authority would be necessary to justify such detention, it would 
certainly strengthen the requisite legal basis. Finally, such 
authorization might include actual detention criteria, which could 
either expand or constrict existing military detention authority 
separately from an express authorization or limitation on that 
authority.
    Assuming that Congress chooses not to modify the existing AUMF, the 
question of enhanced process for individuals subjected to long-term 
preventive detention seems especially significant. Although this 
detention is based on in large measure on the unquestioned authority of 
belligerents to prevent captive enemy operatives from returning to 
hostilities, the unconventional nature of this conflict does raise 
troubling questions about the legitimacy of extending this authority to 
a functionally indefinite conflict. It should, however, be recognized 
that the existing detention authorization and review process has 
incorporated a level of procedural protection against arbitrary 
detention that is truly unprecedented in any prior armed conflict in 
U.S. history. Should more process be incorporated? If doing so would 
facilitate a more effective assessment of continued detention 
necessity, and enhance the perception of legitimacy, I believe the 
answer is yes. What that additional process should be is a much more 
difficult question. One idea might be to adopt a presumptive detention 
termination point, requiring the government to rebut a presumption of 
termination in an adversary proceeding by an appropriately weighty 
burden of proof. In my view, if such a process were adopted, the 
tribunal should be composed primarily of military officers, presided 
over by a judicial officer--although inclusion of several civilian 
legal or judicial experts might also be logical--and should provide 
detainees with a right to appellate review.

    8.  Remotely piloted vehicles (RPV) and controlling legal 
authority.

    Despite the substantial controversy surrounding the increased use 
of RPVs to attack belligerent operatives, I believe that this weapon 
system need not be analyzed or critiqued differently from any other 
weapon system. Simply stated, RPVs are just weapons, and good ones. The 
way they are employed must be dictated by the type of careful targeting 
analysis that is required for any deliberate attack against a lawful 
object of attack during an armed conflict. To that end, all the 
principles of the LOAC are applicable to their use: they must only be 
used to attack lawful military objectives; such attacks must be 
cancelled when the commander anticipates that the collateral damage or 
incidental injury (to non-combatants) will be excessive in relation to 
the concrete and direct military advantage anticipated (the so called 
proportionality principle); they must not be otherwise indiscriminate 
(an unlikely risk considering the precision of such weapons) or cause 
unnecessary suffering; and commanders must take all feasible 
precautions to mitigate the risk to civilians and civilian property 
(including making best efforts to confirm the nature of the nominated 
target).
    In my opinion, these principles do in fact guide our targeting 
process, irrespective of the weapon systems employed. It is no 
exaggeration to state that at no time in history have legal advisors 
been more integrated into this process than today. If anything, use of 
RPVs, because they are normally utilized in a deliberate (as opposed to 
time sensitive) targeting process, will almost inevitably involve 
multiple layers of operational and legal review. Commanders ultimately 
make targeting judgments, but these judgments are guided consistently 
by the legal principles summarized above in order to ensure, as best as 
possible under the conditions prevailing at the time of decision, that 
employing deadly combat power is operationally and legally justified.
    This process should not be modified if the target is not in an area 
of active combat operations involving U.S. ground forces. As noted 
above, I reject the idea that the notion of a ``hot'' battlefield 
limits belligerent targeting authority against lawful objects of attack 
during armed conflict. Once the strategic decision is made to address a 
target in that armed conflict with combat power outside of such an 
area, these principles provide the appropriate and logical measure of 
attack authority. The location of the nominated target is irrelevant in 
this process, however. Certainly, relative proximity to ongoing combat 
operations is a relevant factor in the target analysis process. 
Accordingly, while I am not privy to the target decisionmaking process 
currently utilized by the United States, I believe it is fair to assume 
that when a potential target is located outside an area of ongoing 
active combat operations, compliance with these principles almost 
certainly demands a greater degree of certitude that the individual in 
fact qualifies as a lawful target. Ultimately, however, once an 
individual is assessed as an enemy belligerent operative, his location 
may influence the decision to utilize the full scope of armed conflict 
targeting authority, but that authority is in no way altered as a 
result. Rather, targeting authority is dictated by this status 
determination, and not by location.

    9.  How should we decide who is an appropriate military target 
outside an area of active combat operations, and should ``imminence'' 
be an aspect of this determination?

    As evidenced by my answer to the prior question, I believe the 
answer is clear: the decision that an individual qualifies as ``an 
appropriate military target'' should be re-characterized: does the 
individual qualify as a lawful object of attack pursuant to the law of 
armed conflict? If the answer is yes, that individual's proximity to an 
area of ``active combat operations'' in no way alters the legal 
authority to attack (although as noted above it may result in self-
imposed limitations based on policy and/or diplomatic considerations). 
Proximity to such an area of operations is better understood as just 
one of a range of threat identification criteria that impact a totality 
analysis of lawful target.
    Imminence is simply not an element of this target decisionmaking 
legal equation. Instead, when attacking an individual, the key 
analytical focal point is whether that individual is properly 
identified as a member of an enemy belligerent group. If so, that 
status alone triggers lawful attack authority. This is perhaps the most 
fundamental difference between peacetime and armed conflict use of 
force authority. In peacetime, the use of deadly force is limited to a 
measure of last resort, and justified only when the individual's 
conduct manifests an actual threat that necessitates that use of force. 
Thus, employing deadly force is justified only when the individual 
poses an ``imminent'' threat of death or grievous bodily harm. In 
contrast, once an individual is identified as a member of an enemy 
belligerent group in armed conflict, that individual is presumed to 
represent a threat justifying attack by virtue of that status alone. 
Thus, unless and until that individual is removed from the control of 
enemy belligerent leadership (either by capture or physical 
incapacitation), attack with combat power creating a high probability 
of causing death is legally justified.
    This target validation process obviously involves a complex and at 
times challenging analysis of a variety of factors that indicate an 
individual is in fact a belligerent operative of al Qaeda or other 
enemy forces. Because of the unconventional and dispersed nature of al 
Qaeda operations, this threat identification process must, by 
necessity, focus on indicia that are less obvious than those relied on 
to positively identify enemy belligerent operatives in the context of 
more conventional inter-state hostilities. It is, however, erroneous to 
suggest that threat identification, even in the conventional conflict 
context, is ``easy.'' On the contrary, the intensity and pace of modern 
warfare make threat identification challenging in any type of armed 
conflict. It is, however, obvious that the complexity of threat 
identification is magnified in an armed conflict with an unconventional 
and highly dispersed enemy belligerent group. It is therefore logical 
and appropriate to rely on multiple factors to guide threat 
identification of this enemy. These factors will almost certainly 
include patterns of activity, association, location, signals and human 
intelligence indicating activities and intentions, and the nature of 
the individual's contribution to the belligerent objectives of al 
Qaeda.
    While reliance on such factors may appear to be a significant 
departure from ``traditional'' threat identification methodology, this 
is not the case. Similar methodologies and indicia have been used in 
prior conflicts involving unconventional enemy opponents. Indeed, 
having begun my military career as a tactical intelligence officer in 
Panama in the mid-1980s, I can personally attest to the reliance on 
such indicia in other contexts. Assigned to one of the few Army 
commands focused almost exclusively on what is today called 
counterinsurgency operations (at that time called low intensity 
conflict), our forces routinely trained to engage unconventional 
enemies in low- to mid-intensity hostilities. Unable to rely on 
traditional threat identification criteria such as uniforms or obvious 
military equipment, threat identification instead focused on similar 
indicia as those ostensibly used today. Ultimately, whether engaged in 
armed conflict with a conventional or unconventional belligerent 
opponent, the process for and legal authority resulting from positive 
threat identification is identical: a determination of enemy 
belligerent status triggering the authority derived from the LOAC to 
attack such individuals based solely on this belligerent status. Even 
when the threat identification criteria rely heavily, by necessity, on 
an individual's conduct, the ultimate question was and remains a 
determination of status.
    The nature of this question seems to reflect what has been an 
increasingly vocal aversion to exercising belligerent attack authority 
outside of the so-called ``hot'' battlefield. Indeed, I believe this 
aversion has been a driving force behind the creation of the 
``geography of war'' fiction discussed above. This aversion is 
fundamentally flawed as a matter of law. Although, as noted above, the 
threat identification process may be more complex due to the 
individual's attenuation from an area of active combat operations, that 
attenuation in no way modifies or restricts the attack authority 
resulting from this determination.
    I believe it is important to bear in mind that U.S. forces involved 
in hostilities against an unconventional enemy engage in this complex 
threat identification process on a daily basis in Afghanistan, a 
process that is not constrained by a requirement to assess the 
imminence of the threat. It seems somewhat ironic that proponents of an 
``imminence'' requirement outside the so-called ``hot'' battlefield 
seem untroubled by reliance on the same threat identification criteria 
they consider insufficient to justify attack when it is utilized to 
make difficult targeting decisions in the ``hot'' battlefield. This 
irony is magnified because the extent of deliberation and layers of 
review associated with attacks outside the ``hot'' battlefield might 
actually produce increased certainty as to the nature of the target. If 
we trust our commanders to make complex targeting judgments in the 
context of a ``hot'' battlefield, I find it perplexing that we would 
impose an additional attack criteria--one drawn from the peacetime use 
of force legal framework and never intended to limit belligerent attack 
authority--on analogous decisions simply because the nominated target 
is geographically attenuated from that battle space.

    10.  What is our obligation to ensure lethal military force is 
directed only at appropriate military targets, and do we need to 
legislate or codify the principles that guide these decisions?

    My prior answers clearly indicate that I believe it is the law of 
armed conflict, brought into force as the result of the armed conflict 
between the United States and al Qaeda, that provides the authority to 
attack persons, places, or things as a measure of first resort. 
Accordingly, as noted above, this attack authority is triggered by 
determinations that a proposed target qualifies as a lawful military 
objective pursuant to that law. The LOAC mandates compliance with the 
obligations of distinction, proportionality and precautions, as 
explained above.
    I see no value in attempting to codify the principles of the LOAC 
in an amended or new AUMF. The President is obligated to ensure respect 
for this law once the United States is engaged in an armed conflict, as 
are all subordinate officers of the Department of Defense, each 
military department, and all other government agencies. Department of 
Defense Directive, incorporated into the Chairman of the Joint Chiefs 
of Staff Standing Rules of Engagement, mandates compliance with these 
principles during all military operations, which is reinforced by 
military doctrinal manuals related to the targeting process, and 
professional military education. Legal advisors at every echelon of 
command are educated in this law and fully integrated into the 
targeting process. Even during the initial phase of U.S. belligerent 
detention operations, when the executive took the position that the 
detainees did not fall within the scope of the humane treatment 
obligation of Common Article 3 to the Geneva Conventions of 1949, there 
was never any assertion that targeting operations were exempt from 
compliance with these LOAC principles.
    Finally, in my view the obligation to comply with the LOAC is 
already inherent in the AUMF authorization to use ``appropriate'' 
force. This, coupled with the fact that the U.S. considers itself 
engaged in an armed conflict not of an international character (a 
situation that triggers customary LOAC principles as a matter of law), 
leads me to reject the question's assertion that these principles have 
heretofore been applied only as a matter of policy. To the contrary, 
from the inception of this armed conflict, I believe they have applied 
(and have been understood to apply) as a matter of law.

    11.  Who should sign off on such targeting decisions? What degree 
of confidence should be required? Should judicial or some other 
independent review be required for these decisions?

    I believe that once the United States is engaged in an armed 
conflict, target decisionmaking is a quintessential commander in chief 
function. This function is applicable in an armed conflict authorized 
by Congress, or when responding to an attack thrust upon the Nation 
pursuant to the President's inherent constitutional authority to defend 
the Nation. Accordingly, I believe that it is the President, acting in 
his own capacity or through subordinate officers, who is responsible 
for making decisions to attack a nominated target during armed 
conflict.
    Accordingly, I believe any attempt to subject this decisionmaking 
process to judicial or some other type of external review would 
represent a genuine and unjustified intrusion into the President's 
express Article II powers. Nor do I believe there is any legitimate 
justification for such review. The obligation to ``take care that the 
law be faithfully executed'' includes, by implication, ensuring 
compliance with the LOAC when engaged in hostilities. Every subordinate 
officer in the chain of command is sworn to uphold and defend the 
Constitution, which by implication also requires compliance with the 
LOAC during hostilities. As noted in several prior questions, the level 
of commitment to ensuring such compliance--in structure, process, 
education, training, and internal oversight--is more significant today 
than at any time in our history. As one intimately familiar with all of 
these aspects of the compliance process, I am perplexed at the common 
assertion that there is insufficient oversight for targeting decisions.
    Even a cursory review of the deliberate target decisionmaking 
process indicated multiple levels of review. Furthermore, Department of 
Defense Directives mandate investigation into any credible indication 
of a violation of the law of armed conflict, and the Uniform Code of 
Military Justice provides a highly credible mechanism for holding 
individuals accountable for such violations. This mosaic of process, 
training, and accountability is more than sufficient to mitigate any 
risk of abuse of power. Furthermore, the obligation imposed by the LOAC 
both to attack only military objectives (which includes enemy 
belligerents) and to make all feasible efforts to mitigate the risk to 
civilians by implication imposes an obligation to limit attack to only 
individuals reasonably assessed to qualify as enemy belligerents. While 
the law does not include an express articulation of a ``burden of 
proof'' that must be satisfied to justify attack, it is relatively 
clear that to qualify as reasonable, the decision must be made on the 
best available information and must at least render it more likely than 
not that the individual is not a civilian.
    I certainly understand why there may be those who question the 
efficacy of this process, and who call for some external review and/or 
authorization mechanism. There are no more momentous decisions than 
those resulting in the taking of human life, and those who worry about 
abuse of authority understandably demand greater transparency and 
oversight. However, our division of constitutional authority entrusts 
the executive branch with these decisions, and transparency will always 
present increased risk of disclosing sensitive information. It strikes 
me that vesting trust to leverage the Nation's combat power wisely and 
lawfully in those trained and devoted to the process of leading 
military forces represents a logical balance of interests.
    I also recognize how the undisputed evidence that innocent 
civilians are killed during attacks on belligerent targets may seem to 
many to be inconsistent with the law. This, however, is not the case. 
The LOAC regulates armed hostilities, an endeavor that involves the use 
of highly destructive combat power and the inevitable suffering 
associated with such use. While the law obligates parties to a conflict 
to take all feasible measures to mitigate this suffering, especially 
when civilians are the potential victims, it also includes a necessary 
recognition that when unavoidable and justified pursuant to 
proportionality analysis, such suffering may occur. Likewise, the 
consternation that it is too ``easy'' to decide who is a lawful target 
is, in my view, fundamentally flawed. I would suggest that few people 
who have not experienced the human cost of armed conflict better 
understand the immense moral burden associated with a decision to order 
a lethal attack than experienced military leaders. These are the 
individuals who must live with these difficult decisions, and to 
suggest that they take this responsibility lightly is unfortunately ill 
informed.
    In this regard, I find it particularly ironic that our Nation 
entrusts these same leaders with the judgment to make decisions to 
place our own sons and daughters into harm's way. Yet there is no 
suggestion that these decisions must be subject to some external review 
process. If our trust in their judgment to make sound military 
decisions is sufficient enough to entrust our sons and daughters to 
them, how is it insufficient when the potential consequence is an 
attack on an enemy belligerent? These leaders spend their entire 
professional careers immersed in the operational, moral, ethical, and 
legal aspects of employing combat power to ``fight and win'' the 
Nation's wars. They also rise through the ranks, demonstrating the 
expertise and judgment necessary to achieve selection for the highest 
levels of authority, including Senate confirmation. How a Federal 
judge, or some external oversight mechanism, could be more competent to 
make these difficult decisions than these leaders is perplexing.
    I do not question the ability of those tasked with such external 
oversight to master the complexities of the law of armed conflict. 
However, I believe that these individuals could rarely (if ever) match 
the type of contextual understanding--namely expertise in the planning 
and execution of military operations for the purpose of achieving 
strategic, operational, and tactical objectives--essential for truly 
understanding the proper application of this law. Ultimately, it should 
be those whom our Nation trains and prepares to command the execution 
of military operations that are entrusted with the awesome 
responsibility of target selection and engagement.

    12.  What is the legal authority for targeting a U.S. person and 
should a different legal standard or process apply to such targeting?

    I do not believe that citizenship is a relevant factor in assessing 
the legality of attacking a nominated target in the context of an armed 
conflict. Instead, like any other individual, the LOAC dictates when a 
U.S. citizen is the lawful object of attack. It is certainly not 
unprecedented for U.S. citizens to join the ranks of enemy belligerent 
forces, and when they do so they become subject to lawful attack 
pursuant to the identical legal criteria applicable to their 
belligerent comrades. Thus, when a U.S. citizen who has been properly 
identified as such a member is subject to attack with lethal combat 
power, that citizen has received the process he is due.
    Of course, there may be compelling policy considerations that 
warrant narrowing the scope of this targeting authority. There is 
nothing unusual about imposing such policy restrictions on otherwise 
lawful belligerent targeting. Rules of engagement are utilized 
routinely to impose such restrictions where the President or 
subordinate commanders determine that the cost/benefit equation 
justifies such restriction. Accordingly, requiring satisfaction of an 
additional layer of policy-based considerations--such as a requirement 
to exhaust all feasible, less harmful means to subdue the individual--
as a precondition to targeting known U.S. citizens with lethal combat 
power is certainly not inconsistent with the law of armed conflict. It 
is not, however, legally mandated, and therefore should be left to the 
realm of policy.

    13.  Should use of RPVs and other methods and means of employing 
combat power be restricted to Department of Defense operations, and if 
not, should the same legal authorities apply to such operations?

    In my opinion, the LOAC establishes the controlling legal framework 
for ``lethal targeting'' regardless of which entity employs combat 
power on behalf of the United States. No individual should be subject 
to attack with potentially deadly combat power unless that individual 
is legitimately determined to be an enemy belligerent operative or a 
civilian taking a direct part in hostilities in the context of an armed 
conflict. In all other contexts, I do not believe that domestic law, 
policy, or international law permit government agents to resort to 
deadly force as a measure of first resort.
    It is also my opinion that the conduct of such operations should be 
restricted to the Department of Defense. However, I do not believe that 
I, or anyone else lacking access to highly classified information, can 
legitimately claim to know with certainty the nature of ongoing 
operations involving other U.S. Government agencies. Although there is 
what I consider to be substantial speculation on the nature of these 
operations, there may be aspects of them (for example, joint target 
analysis and selection, or integration of DOD assets into the 
operational capabilities of other agencies) that ensure significant DOD 
involvement in the targeting process.
    Nor do I feel competent to comment on potentially sensitive and 
complex issues of diplomacy and policy that may necessitate utilization 
of other government agencies to conduct such operations. However, I 
strongly believe that if this is in fact occurring, those agencies and 
the President bear a legal obligation to ensure the use of a targeting 
process that fully complies with the law of armed conflict. Ultimately, 
my opinion that these operations are best left in the hands of the 
Department of Defense is based on the same considerations that lead me 
to object to calls for external review or oversight of targeting 
decisions--namely my inherent confidence in the culture and processes 
embedded within DOD to ensure that such operations comply with the law 
of armed conflict. While I have the greatest respect for the 
professionalism and valor of the devoted patriots who serve in other 
government agencies--service that often involves equal if not greater 
personal risk than their DOD counterparts--I simply do not believe that 
these organizations are built on the type of warfighting culture that 
exists in the military. From the inception of a military officer's 
professional career, he or she is immersed in a culture that focuses on 
developing morally grounded warriors--individuals who understand the 
unfortunate necessity to employ combat power on behalf of the Nation 
but also understand that doing so in a manner that is legally compliant 
and morally sound is essential to strategic success. I believe leaders 
developed in this culture are best-suited to make use of force 
decisions on behalf of our Nation.

    14.  Under what circumstances could lethal military force be used 
in the United States and is such use authorized by the AUMF?

    I believe this question is largely hypothetical in nature. To my 
knowledge, there has been no indication by the executive branch of an 
intent to employ, or even consideration of employing, combat power 
within the territory of the United States. Even during the Bush 
administration, during oral argument in the case of Jose Padilla, when 
Justice Kennedy challenged the acting Solicitor General on whether 
Padilla could have been shot while exiting a commercial aircraft in 
Chicago airport, the response emphatically disavowed any such 
consideration.
    Is it conceivable that a situation in extremis might lead a 
President to determine that it was necessary to utilize such force to 
protect the Nation from a threat within our territory? Although I 
believe the answer is yes, I also believe that no President would 
resort to such a response unless it was a genuine option of last 
resort. I believe the immediate response to the September 11th 
terrorist attacks provides a useful example of such a situation in 
extremis. In response to the uncertainty regarding the potential for 
further aviation-borne suicide attacks, military aircraft were ordered 
to shoot down, if necessary, commercial aircraft flying in restricted 
airspace above New York or Washington, DC. In my view, this was a 
lawful order, based on the fact that the executive assessed that the 
Nation was under attack (which indicated the existence of an armed 
conflict), and that such aircraft would have qualified as lawful 
objects of attack pursuant to the law of armed conflict. In no other 
situation has there been any suggestion of resorting to combat power to 
respond to a terrorist threat within U.S. territory, which I believe 
indicates that while such use is theoretically possible, situations 
triggering such use are highly unlikely to arise. Nonetheless, were the 
Nation subject to an attack of a sufficient magnitude to render a law 
enforcement response ineffective, conducted by members of al Qaeda or 
co-belligerent forces, I believe the AUMF would authorize a military 
response to defend the Nation.

    15.  What is the role of Congress in overseeing the use of lethal 
force pursuant to the AUMF, and can the process be made more 
transparent without compromising operational security?

    As noted in several prior questions, I believe Congress has an 
essential role in ensuring that ongoing military operations fall within 
the proper scope of the AUMF. Central to this role is the need to 
ensure consistency between the scope of authority provided by the AUMF 
and principles of international law related to the use of military 
force to protect vital U.S. national interests, principles that have 
guided such uses of force by our Nation from inception. Accordingly, 
Congress must respond cautiously and judiciously to any call for 
expanding the scope of the AUMF, and must be animated by analogous 
prudence in response to calls to revoke this statute. Furthermore, 
Congress must ensure that any expansion to the scope of the AUMF is 
consistent with principles of international law, and therefore only 
consider such expansion to cover terrorist groups that present a threat 
level sufficient to reasonably justify characterizing the U.S. response 
as an armed conflict.
    I also believe Congress, through close coordination and 
collaboration with the executive, must contribute to dialogue regarding 
when the nature of the al Qaeda threat has been degraded sufficiently 
to justify reversion back to a pure law enforcement modality for 
addressing this threat. However, I do not believe that congressional 
oversight extends to review of specific targeting decisions or imposing 
any type of oversight mechanism that would require congressional 
endorsement of these decisions. In short, Congress should allow the 
executive, acting principally through the Department of Defense, to 
continue to plan and execute operations for the purpose of disrupting 
and/or disabling the al Qaeda threat, but should also periodically 
review such operations, and the process associated with them, to ensure 
the AUMF is being faithfully executed.
    In terms of increased transparency, it is my opinion that Congress 
should be extremely cautious in demanding public disclosure of aspects 
of the targeting process beyond those that have already been disclosed 
by the executive. To that end, I believe it is important to note that 
the executive has disclosed substantial aspects of this process. In 
fact, in my 30 years of military and academic service, I cannot recall 
a period of time where executive officials have been anywhere as open 
in disclosing strategic and operational decisionmaking processes than 
during this conflict. I believe demanding more transparency poses 
significant operational risk, and is, at this point in time, 
unjustified and unnecessary.
    While calls for greater transparency are certainly understandable, 
I believe each additional layer of disclosure risks compromising the 
effectiveness of U.S. operations. Ultimately, it is this effectiveness 
that must remain the priority interest in the transparency debate. It 
must also be noted that this risk is exacerbated by the nature of the 
threat and the threat identification methodology. Disclosing target 
identification methodology to a conventional enemy poses little risk--
that enemy knows exactly what indicia of threat identification friendly 
forces will rely on, and cannot modify that indicia. With an 
unconventional enemy, this is not the case. Instead, disclosure of 
these indicia will enable the enemy to alter patterns of behavior in 
order to avoid attack. In my view, Congress certainly has a legitimate 
interest in being made aware of such indicia in a forum that ensures 
operational security. However, like so many wartime decisions, the 
public appetite for greater insight into these processes must yield to 
considerations of operational success.
    Chairman Levin. Thank you very much, Mr. Corn.
    Mr. Goldsmith.

STATEMENT OF MR. JACK GOLDSMITH, PROFESSOR OF LAW, HARVARD LAW 
                             SCHOOL

    Mr. Goldsmith. Thank you, Senator Levin, Senator Inhofe, 
members of the committee. Thank you for inviting me to testify.
    I have been thinking, talking, and arguing about the AUMF 
for a long time and on the need for Congress to reengage with 
the meaning of that statute, the scope, and its operation. 
Nothing could have demonstrated that need more than the 
testimony on the last panel which made clear that the enemy we 
face has changed quite a lot since September 11, that al Qaeda 
itself has become dispersed geographically and 
organizationally, and that the United States has, both the 
military and the CIA, changed to meet this threat. The war is 
now taking place in many countries around the world, as 
acknowledged today. The Secretary tried to wind it back a 
little bit at the end, but he said that at one point the AUMF 
included force against groups in Mali, Libya, Syria, and Congo. 
He walked it back a little bit at the end by saying he did not 
necessarily mean that there was authority under the AUMF. He 
did not deny that there was, just it did not necessarily mean 
that. This war has changed quite dramatically since September 
11.
    I believe that the basic principles of interpretation that 
the executive branch has been using to expand the AUMF are 
legitimate. I believe that co-belligerency is a basis for 
extending the scope of the AUMF. I think that is a traditional 
basis in our history.
    But through a series of steps, each of which are 
legitimate, we have come to a place that is quite different 
from where we began. The question is: is Congress on board for 
that? A lot of the Senators seemed surprised at the scope of 
the AUMF, as it has been interpreted by DOD. Indeed, I learned 
more in this hearing about the scope of the AUMF than in all of 
my study in the last 4 or 5 years. I learned that the war under 
the AUMF is probably going to go on for 10 or 20 years, that in 
fact, as I suspected, the enemy is murky and difficult to pin 
down, and the organizational structures are changing a lot and 
it is difficult to know which groups are associated with al 
Qaeda and not.
    I think it is very important that Congress engage this 
issue. If nothing else, I think asking these questions and all 
the questions you asked in your request to this panel were 
interesting. All those questions are important to be answered 
in one form or another. I think it is more important to ask 
those questions and to surface the answers than it is to reach 
any particular resolution.
    Let me just say briefly there are two potential avenues for 
reform. One is: what do you think about the AUMF and how it has 
been interpreted? Are you satisfied with the process whereby 
the executive branch interprets it to extend to places as the 
first panel suggested? It seems to me that is the first order 
of business, to figure out what is going on under the AUMF and 
whether you are satisfied that the process of expansion of the 
war is appropriate, is legally appropriate, and that you 
understand what is happening.
    The second question is: what to do with entities that fall 
outside of the AUMF, extra-AUMF threats? Frankly, as Senator 
King said, if you interpret the AUMF broadly enough, you do not 
need to worry about extra-AUMF threats. So when the panelists 
from DOD were saying they are very satisfied with current 
authorities, one would like to know what that means, how 
broadly are they interpreting the AUMF, how broadly are they 
interpreting Article II to be satisfied?
    It seems to me that the first question is the AUMF and then 
the question of extra-AUMF threats should be addressed 
especially since DOD said that this war will be going on for 10 
or 20 years at least.
    With regard to extra-AUMF threats, I have suggested 
proposals about how to deal with them. The basic question is: 
are you satisfied with the President's Article II powers to 
address extra-AUMF threats. I believe and this panel, to my 
surprise, appears to robustly believe, that the President has 
robust Article II powers to exercise self-defense against 
emerging threats. I think those powers are robust. I do not 
think they are appropriate for long-term conflict against the 
same set of groups. So if a group arises that we are in armed 
conflict with that presents a persistent threat, I do not 
believe it is outside the AUMF. I do not believe that Article 
II will suffice for that. I think Congress needs to engage and 
authorize that.
    I will stop there. Thank you very much.
    [The prepared statement of Mr. Goldsmith follows:]
                Prepared Statement by Mr. Jack Goldsmith
    Chairman Levin, Ranking Member Inhofe, and members of the 
committee, thank you for the opportunity to testify.
    The committee's 15 questions cover a wide range of topics that do 
not admit of simple or brief answers. I will try to get at some of the 
relevant issues in three parts. I will first explain how the nature of 
the war against Islamist terrorists has changed in the past dozen 
years. Then I will then explain why these changes warrant Congress's 
reconsideration of the contours of and oversight for the war. I will 
finally discuss particular reforms.
                       i. how the war has changed
    On September 14, 2001, Congress passed the Authorization for the 
Use of Military Force (AUMF). The AUMF, as it is called, authorized the 
President ``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, or harbored such organizations or persons, in order to 
prevent any future acts of international terrorism against the United 
States by such nations, organizations, or persons.''
    The AUMF focused on entities responsible for September 11. In the 
fall of 2001 those entities, including al Qaeda, were located primarily 
in Afghanistan. In the last dozen years, al Qaeda has undergone what 
Professor Robert Chesney describes as an ``extraordinary process of 
simultaneous decimation, diffusion, and fragmentation, one upshot of 
which has been the proliferation of loosely-related regional groups 
that have varying degrees of connection to the remaining core al Qaeda 
leadership.'' \1\ The executive branch expanded the kinetic and 
intelligence war beyond Afghanistan to other places around the globe 
against al Qaeda affiliates that were not in existence on September 11, 
much less responsible for the September 11 attacks.
---------------------------------------------------------------------------
    \1\ Robert Chesney, Beyond the Battlefield, Beyond Al Qaeda: The 
Destabilizing Legal Architecture of Counterterrorism, 112 Mich. L. Rev. 
(forthcoming 2013) (available at http://ssrn.com/abstract=2138623)
---------------------------------------------------------------------------
    Both legal and organizational innovations accompanied and made 
possible the expansion of the war. On the legal side, the executive 
branch interpreted the AUMF to extend to organizations associated or 
affiliated with al Qaeda, under the theory that they are co-
belligerents. It also interpreted the AUMF--which, unlike some prior 
congressional approvals of military force, lacks geographical 
limitation--to authorize force in many nations outside Afghanistan 
where affiliated or associated al Qaeda forces are found.\2\
---------------------------------------------------------------------------
    \2\ I believe both interpretive moves are legitimate. See Curtis A. 
Bradley & Jack L. Goldsmith, Congressional Authorization and the War on 
Terrorism, 118 Harv. L. Rev. 2047, 2107-2127 (2005).
---------------------------------------------------------------------------
    On the organizational side, both the Central Intelligence Agency 
(CIA) and the Defense Department changed quite a lot. The CIA became 
committed to targeted killing via unmanned aerial vehicles, or 
``drones'', and reorganized its intelligence mission to support drone 
warfare. The Defense Department's Joint Special Operations Forces 
(JSOC) grew rapidly and engaged in an expanded array of stealth 
operations (including but not limited to drone fire operations) and 
intelligence missions (including human intelligence missions) needed to 
support these operations.
    These innovations have undergirded a mostly officially secret 
geographical expansion of the ``war on terrorism'' since the fall of 
2001. This committee presumably knows the details of this ``shadow 
war,'' including its lethal force elements and any rendition, proxy 
detention, proxy force, and related elements. But U.S. citizens know 
very few details, at least from official U.S. Government channels, 
because the operations are highly classified and often covert. 
Presidential Reports under the War Powers Resolutions were designed to 
ensure that Congress and the American people were aware of presidential 
expansions of war. But these Reports now regularly contain classified 
annexes, and they do not purport to cover CIA operations in any event. 
As a result, the American people know about the shadow war primarily 
through journalistic accounts. These accounts report that the United 
States has since September 11 engaged in military or paramilitary 
operations in at least a dozen countries, and probably a much higher 
number.\3\
---------------------------------------------------------------------------
    \3\ See, e.g., Mark Mazzetti, The Way of the Knife, The CIA, a 
Secret Army, and a War at the Ends of the Earth (2013); Daniel 
Klaidman, Kill or Capture: The War on Terror and the Soul of the Obama 
Presidency (2012); David Sanger, Confront and Conceal: Obama's Secret 
Wars and Surprising Use of American Power (2012).
---------------------------------------------------------------------------
    President Obama proclaimed in his second inaugural address that a 
``decade of war is now ending.'' \4\ It does appear that heavy-
footprint war against the Taliban in Afghanistan is winding down. Two 
former senior legal officials in the Obama administration have given 
speeches that some interpret to indicate that the shadow war outside 
Afghanistan is also winding down or will end soon.\5\ I do not know the 
intelligence basis for these speeches. I nonetheless do not believe the 
shadow war will end any time soon.
---------------------------------------------------------------------------
    \4\ Inaugural Address by President Barack Obama, January 21, 2013.
    \5\ Harold Hongju Koh, ``How to End the Forever War,'' Speech to 
the Oxford Union, May 7, 2013, http://www.lawfareblog.com/wp-content/
uploads/2013/05/2013-5-7-corrected-koh-oxford-union-speech-as-
delivered.pdf; Jeh Charles Johnson, Jr., ``The Conflict Against Al 
Qaeda and its Affiliates: How Will It End?,'' Speech to the Oxford 
Union, November 30, 2012, http://www.lawfareblog.com/2012/11/jeh-
johnson-speech-atthe-oxford-union/.
---------------------------------------------------------------------------
    Consider a few recent news reports. The United States has engaged 
in over a dozen drone strikes this year in Pakistan and Yemen; it is 
expanding its drone capabilities in North Africa to address the growing 
Islamist (including al Qaeda affiliate) threats there; JSOC now has 
boots-on-the-ground in Mali (among many other places); the United 
States is training Syrian opposition forces; U.S. Special Operations 
Command is planning to significantly increase its presence in Africa, 
Asia and Latin America; the Obama administration is debating whether 
the AUMF extends to Ansar al-Sharia in Libya and the al-Nusra Front in 
Syria; it is also debating whether the AUMF extends not just to 
associates of al Qaeda, but also to ``associates of associates.''\6\
---------------------------------------------------------------------------
    \6\ See New America Foundation, The Year of the Drone, available at 
http://counterterrorism.newamerica.net/drones; Craig Whitlock, Pentagon 
Deploys Small Number of Troops in War Torn Mali, Washington Post, April 
30, 2013; Thom Shanker, Military Sees Broader Role for Special 
Operations Forces, in Peace and War, New York Times, April 2, 2013; 
Bradley Klapper, U.S. training Syrian Forces in Jordan, Associated 
Press, March 26, 2013; Craig Whitlock, Drone Base in Niger Gives U.S. a 
Strategic Foothold in West Africa, Washington Post, March 21, 2013; 
Greg Miller and Karen DeYoung, Administration Debates Stretching 9/11 
Law to Go After New al-Qaeda Offshoots, Washington Post, March 6, 2013.
---------------------------------------------------------------------------
    These and similar reports suggest that the shadow war against 
Islamist terrorist threats is morphing but not winding down. I will 
proceed on this assumption--an assumption I believe is implicit in most 
of the questions this committee asked the panelists to address.
                      ii. why congress must engage
    Congress' main engagement with the shadow war is the AUMF, which is 
nearly a dozen years old. It is long past time for Congress as a body 
to scrutinize the shadow war fought pursuant to the AUMF and to clarify 
publicly its legal basis and proper oversight mechanisms.
    The AUMF is out of date in two ways. First, through a series of 
executive branch interpretations, each legitimate in itself, the AUMF 
is now deemed to authorize a war that is quite different from the one 
Congress contemplated a dozen years ago. As Senator Durbin recently 
said, ``I don't believe many, if any, of us believed when we voted for 
[the AUMF] that we were voting for the longest war in the history of 
the United States and putting a stamp of approval on a war policy 
against terrorism that, 10 years plus later, we're still using.'' \7\ 
To the extent Senator Durbin's views are widely shared, Congress should 
determine whether it approves of the shadow war being fought pursuant 
to the AUMF, including the method by which the AUMF conflict expands.
---------------------------------------------------------------------------
    \7\ Senator Durbin on the Budget, Social Security, Drones, 
Washington Wire, Wall Street Journal, March 20, 2013, available at 
http://blogs.wsj.com/washwire/2013/03/20/transcript-sen-durbin-on-the-
budget-social-security-drones/.
---------------------------------------------------------------------------
    Second, emerging al Qaeda-inspired Islamist terrorist organizations 
are increasingly difficult to fit within the AUMF. Michael Leiter, the 
former Director of the National Counterterrorism Center, recently 
testified: ``With the continued evolution of the terror threat and most 
notably its increasing distance from the September 11 attacks and core 
al Qaeda, I believe it is the time to re-evaluate the AUMF to better 
fit today's threat landscape.'' \8\ Similarly, an unnamed senior Obama 
administration official recently told the Washington Post that ``[t]he 
farther we get away from September 11 and what this legislation was 
initially focused upon . . . we can see from both a theoretical but 
also a practical standpoint that groups that have arisen or morphed 
become more difficult to fit in.'' The official added that the waning 
relevance of the AUMF is ``requiring a whole policy and legal look.'' 
\9\ That policy and legal look should not only take place in secret 
within the executive branch. It should also take place in Congress and 
in public.
---------------------------------------------------------------------------
    \8\ The Honorable Michael E. Leiter, Testimony before the United 
States Senate Committee on Foreign Relations Counterterrorism Policies 
and Priorities: Addressing the Evolving Threat, March 20, 2013, at 
http://www.foreign.senate.gov/imo/media/doc/Michael--Leiter--
Testimony.pdf.
    \9\ Miller and DeYoung, Supra note 5.
---------------------------------------------------------------------------
    Another reason why Congress should now engage is that its 
authorizing and oversight processes are outdated. The CIA component of 
the shadow war is conducted pursuant to a very thin legal framework for 
covert action that was not designed to be a central legitimating tool 
for warfare and that contains open-ended reporting requirements and no 
identified substantive constraints. Congress should determine whether 
this framework suffices for modern stealth warfare, and if not, how it 
should be changed. Congress should similarly consider this committee's 
even-less-specified oversight mechanisms for Defense Department 
operations. I am told that the members of this committee are satisfied 
with these mechanisms. But the mechanisms are mostly grounded in secret 
custom, not public law, and the American people cannot assess them and 
thus cannot know whether to have confidence in them.
    This last consideration points to another reason why Congress 
should engage: the shadow war is unnecessarily--and, increasingly, 
self-defeatingly--secretive. There are growing indications, and 
complaints, that our heavy reliance on drones is a strategic failure. 
This is obviously a vital issue for the Nation, but it cannot be 
debated intelligently in public because our drone operations are 
classified. More broadly, excessive executive branch secrecy is 
weakening trust in the administration's conduct of the shadow war. A 
good deal of the misplaced concern about drone strikes in the homeland 
against Americans has resulted from the administration's stilted 
explanations about the legal limits and secret processes for killing 
U.S. citizen al Qaeda suspects. These stilted explanations, in turn, 
are driven by the requirements of classified information and covert 
action. Excessive secrecy also underlies growing mistrust and doubts--
at home, and abroad--about the administration's claims about the rate 
of civilian casualties, the soundness of its legal analyses, and the 
quality of its internal deliberations. Congress can and should help the 
executive branch bring the shadow war out of the shadows, even if it 
makes the conduct of the war harder abroad.
    The final reason why Congress should engage on this issue is 
constitutional. The precise constitutional allocation of warpowers 
between the first two branches of government is contested. But one need 
not resolve that constitutional issue to conclude that Congress has 
important constitutional powers and duties in this area, and that 
pursuant to them Congress (and not some subset of the institution) 
should engage in fundamental review, guidance, and approval of the 
basic conduct of a war at least every dozen or so years.
                              iii. reforms
    It is much more important for Congress to engage in a thorough and 
open review of the United States' shadow war than that it adopt any 
specific reform. Moreover, it is very difficult to make firm reform 
recommendations without detailed intelligence information about the 
nature of the threat that the public lacks. With these large caveats in 
mind, below I outline what I think are the contours of proper reform.
A. AUMF Threats
    The executive branch appears to have interpreted the AUMF to extend 
to the Haqqani network in Pakistan, al Qaeda in the Arabian Peninsula 
in Yemen, and perhaps to al Qaeda in Iraq and al Shabaab in Somalia (or 
at least to some elements of these latter groups). The administration 
is reportedly debating whether the AUMF should further extend to the 
al-Nusra Front in Syria and Ansar al-Sharia in Libya, and to extend its 
reach to associates of associates of al Qaeda.\10\
---------------------------------------------------------------------------
    \10\ Id.
---------------------------------------------------------------------------
    There are legal advantages to continuing to tie the expansion of 
the shadow war to the AUMF, because the link to September 11, however 
tenuous, puts a potential substantive limit on the expansion of the 
war. But Congress must play a more extensive role in this process of 
expansion, which threatens to continue indefinitely on the basis of 
secret executive branch interpretations even as those interpretations 
become more tenuous. At a minimum Congress should state whether it 
approves this piecemeal expansion of the AUMF; whether it agrees that 
the proper standard for expansion is co-belligerency; and what the 
standard for co-belligerency should look like precisely. Congress could 
also adopt a more extensive role in approving any expansion of the war 
under the AUMF to new groups. It could do this by requiring the 
administration to inform it of proposed groups to be added under the 
AUMF, subject to an approval process in Congress. Or it could establish 
an administrative process for expansion within the executive branch, 
built on the model of the State Department's Foreign Terrorist 
Organization designation process.
B. Extra-AUMF Threats
    Newly threatening terrorist groups inspired by al Qaeda but 
insufficiently tied to it to come under the AUMF present a growing and 
difficult legal problem. What to do about this threat depends on the 
severity, scope, and resilience of the threat. To the extent an extra-
AUMF group presents a discrete and non-recurring threat of attack to 
the United States, the President's traditional Article II authorities 
to use self-defensive force probably suffice. To the extent the extra-
AUMF group presents a more persistent and dangerous threat that rises 
to armed conflict or imminently threatened armed conflict, and to the 
extent it thus requires long-term U.S. military engagement, 
constitutional principle and political prudence counsel Congress to 
assess the threat and approve military force. Congress should also 
assess and approve the basic authorities entailed by such force, 
including whether the nature of a specific armed conflict and our 
strategic and tactical interests warrant authority for law-of-war 
military detention. There are several architectural options here, 
including discrete group-by-group congressional authorization (either 
with or without a process of executive branch recommendation), or a 
general congressional articulation of the standard for the use of force 
combined with a congressionally-sanctioned administrative designation 
process and significant ex post scrutiny by Congress.\11\
---------------------------------------------------------------------------
    \11\ I and others discuss the complicated pros and cons of these 
approaches in Robert Chesney, Jack Goldsmith, Matthew C. Waxman, and 
Benjamin Wittes, A Statutory Framework for Next-Generation Terrorist 
Threats, Jean Perkins Task Force on National Security and Law, pp. 8-
12, at http://media.hoover.org/sites/default/files/documents/Statutory-
Framework-for-Next-Generation-Terrorist-Threats.pdf.
---------------------------------------------------------------------------
C. Statutory Accoutrements
    With regard to both statutory guidance for AUMF threats and a 
potentially new statutory authorization for extra-AUMF threats, 
Congress should clarify a number of contentious matters. One matter, 
already mentioned, is the availability and scope of detention 
authority. Congress should also weigh in on whether American citizens 
are included within the use of force, whether the use of force extends 
to the homeland, and under what circumstances force is warranted in 
either context. These important matters, on which Americans are 
divided, should not be left to the device of secret legal 
interpretation by administration lawyers. Congress should also 
calibrate whether the AUMF applies anywhere outside the United States 
where covered persons are found, any appropriate limiting criteria, and 
whether standards for targeting and detention are identical. I also 
recommend a sunset provision for any clarification of the AUMF or 
authorization of force against extra-AUMF threats. A sunset provision 
belies the notion of temporally unlimited war, and ensures renewed 
congressional engagement in light of new information.
D. Accountability and Openness
    The shadow war is inherently secret, and secrecy is the enemy of 
accountability. Secrecy is often necessary to make operations abroad 
more effective or more acceptable to the foreign government. But it 
comes at a cost to democratic self-governance at home. It also 
adversely affects trust in the war and in the presidency to the extent 
that it prevents open and candid explanation of what is going on in the 
war.
    Congress should push the executive branch to disclose more fully 
those matters that can be discussed openly, including the number of 
strikes and operations, their geographic sweep, estimates of civilian 
casualties, and the basis for these estimates. It should demand maximum 
feasible openness about the procedural elements for listing groups as 
covered entities and for targeting determinations, as well as the legal 
opinions or at least legal determinations that underlie the war 
framework. Congress can also do more--as it has done in the last few 
years in the Foreign Intelligence Surveillance Act context--to require 
detailed classified reporting and auditing from relevant department and 
agency inspectors general as to both the vitality of internal processes 
and the integrity of the intelligence underlying the listings and 
claims about civilian and enemy deaths.
    These proposals may portend to some an erosion of traditional 
presidential authority to conduct war, but I do not see them that way. 
The conflict we are engaged in is entirely novel in its unusual enemy, 
its temporal and geographic scope, and its myriad stealth aspects. The 
legal regime for the conflict--including the accountability and 
openness mechanisms for that regime--needs to reflect these realities.

    Chairman Levin. Thank you very much, Mr. Goldsmith.
    Mr. Roth?

STATEMENT OF MR. KENNETH ROTH, EXECUTIVE DIRECTOR, HUMAN RIGHTS 
                             WATCH

    Mr. Roth. Thank you very much, Chairman Levin, Senator 
Inhofe, and members of the committee.
    My organization, Human Rights Watch, monitors rights in 
about 90 countries around the world, including basically in 
every situation where there is an armed conflict where we have 
people on the ground. My testimony today is going to be from a 
rights perspective, and I have to say that from that 
perspective, probably the most important distinction is the one 
between war and peace.
    In peace, one can still kill if you are a law enforcement 
agent, but only if necessary to meet an imminent lethal threat. 
One can still detain but only with full due process.
    In war, in many cases those rules are significantly 
liberalized. One can kill a combatant on a battlefield. One can 
detain often without charge or trial.
    So the basic rights to life and liberty are at stake in 
this war/peace distinction. That is especially true with the 
kind of threat that this Nation faces where there is not a 
traditional battlefield or traditional enemy to limit the 
application of warpowers.
    With that in mind, while I fully recognize the seriousness 
of the threats facing this Nation, I also want to stress the 
importance of pursuing those threats in a way that maximizes 
the protection of our rights. I am concerned here not simply 
about the actions of the U.S. Government but also about the 
precedents that the U.S. Government sets for other governments 
that may pay much less attention to the rights of their 
citizens or others.
    Just to illustrate the concern, there are many serious 
security threats that are out in the world, not just terrorism, 
but also drug traffickers, international criminal gangs, and 
the like. What is to stop a nation from simply declaring a war 
against, say, a drug trafficking organization, not the 
metaphorical war against drugs that we are all used to, but a 
real war? I think we have to be careful in the precedents that 
we set in going after terrorist groups that may pose a threat 
but that may be more appropriately pursued through more 
traditional law enforcement means rather than resort to 
exceptional warpowers.
    This is not just a concoction in my mind. China already 
came very close to using a drone to summarily kill a drug 
trafficker that it was trying to pursue. In the end, it 
captured him. But it is easy to imagine the Chinas or the 
Russias of the world deciding to declare war on the Dalai Lama 
and his splittists or Uighur nationalists or Chechen 
nationalists and the like. We have to be very careful about the 
precedents set when the United States sets aside the 
traditional rights associated with law enforcement and resorts 
to the exceptional treatment of rights that exist in time of 
war.
    Now, there is going to come a time when the AUMF's 
authority will end. There was a debate this morning about how 
soon that is, but it is quite foreseeable that the war with the 
Taliban is going to end fairly quickly. Certainly the core al 
Qaeda is close to being decimated. The definition of associated 
forces, the topic of much debate this morning, I think if 
properly understood, is limited to co-belligerents and clearly 
does not include groups like al Nusra which, despite their 
ideological affinity with al Qaeda, there is zero evidence that 
they are pursuing the United States in a threatening manner.
    So I think we have to be very careful about extending or 
expanding warpowers unnecessarily because of the rights costs 
involved.
    So my recommendation would be, first of all, to note that 
there is plenty that the President and the U.S. Government have 
to defend ourselves without extending those warpowers. 
Certainly our intelligence and monitoring capacities are 
greatly bolstered since September 11, 12 years ago. We have had 
much discussion about the inherent authority of self-defense or 
Article II powers. I would add to that simply the police powers 
the President has to use law enforcement means, including 
lethal force in appropriate circumstances. The President 
certainly has not asked for any extended war authorization, and 
what we do not want, I think, is any kind of revamp of the AUMF 
which would amount to an open-ended forever-war authority, one 
in which war becomes routine rather than exceptional.
    The proposal that new groups be periodically listed I think 
would be very difficult given the morphing character of many of 
these groups, and I worry very much about one of the proposals 
that has been bandied about, that Congress, in essence, writes 
a blank check allowing the administration to write in the names 
over time of the latest security threat. I actually think that 
would put Congress in a weaker authority with respect to its 
warpowers rather than insisting on the President coming and 
asking for authority to pursue any particular group not 
currently covered by the AUMF.
    I want to take a moment, if I could, to address the drone 
issue because I fully recognize that the use of drones can 
actually be an improvement from the perspective of protecting 
civilians, given their precision, given the ability to linger 
before actually firing, they do have that capacity. But my 
concern is with the lack of a clear articulation by the 
administration of what the rules are limiting its ability to 
mount these lethal attacks. We certainly did not hear it this 
morning. There were lots of vague references to the laws of 
armed conflict, but there is no transparency, no clear 
definition about what cannot be done. So as a result, we have 
deep concerns about whether the drones in fact are being 
deployed lawfully.
    There was mention of the reported signature strikes. 
Assistant Secretary Sheehan said that was only for core 
leaders, but there is considerable evidence that is not the 
case, that the factors going into making one a signature strike 
target include things like bearing arms openly or hanging out 
with the wrong people, which frankly are attributes of many, 
many people in places like Yemen, Somalia, or northwestern 
Pakistan. Drivers, cooks, doctors, and financiers in these 
areas could all very well be associated with the local al Qaeda 
or al Shabaab. They could very well be appropriate terrorist 
concerns, but they would not be combatants under the laws of 
armed conflicts. I am very concerned that this loose definition 
of signature strikes is allowing these people who may have 
criminal associations to be treated as combatants and summarily 
killed when they should not be.
    There is also the question as to combatants against whom. 
Even if some of these people are combatants, there is very 
little evidence that we have seen that they are plotting 
against the United States rather than against the Yemeni 
Government or the Somali Government, and I think many Americans 
would be surprised to learn that the drone attacks are being 
launched in defense of other nations rather than in defense of 
ourselves. We do not know any of this for sure because of the 
shroud of secrecy, but there is deep reason for concern.
    I want to stress that you do not need a war to use drones. 
The policing power allows drones to be used to meet an imminent 
threat. But there is a real question as to whether even that 
limitation is being respected, given the lack of transparency 
and the vague standards being used.
    A final point on Guantanamo. I think it is fair to say that 
Guantanamo at this stage is an unmitigated disaster for the 
United States. It is hurting, not helping, our security. I 
would not want to do anything in extending or amending the AUMF 
that makes it easier to keep Guantanamo open. I think we have 
seen by now that Federal trials are much tougher and a much 
more certain way of prosecuting terrorist suspects. There is a 
much lesser recidivism rate of people who have gone through the 
U.S. criminal justice system as terrorist suspects as opposed 
to people who have gone through Guantanamo. Guantanamo is not a 
long-term solution. Even the Bush administration felt pressure 
to release people. We have to recognize that given the 
difficulties of military commission prosecutions, we are going 
to face the moment sooner rather than later when a war theory 
is no longer going to allow detention at Guantanamo, and if we 
have squandered the opportunity for criminal prosecutions in 
the regular courts, the United States is going to be less safe, 
not more safe.
    So again, coming back to the core issue, this is yet one 
more reason why I think our aim should be to wind down the AUMF 
as quickly as possible, certainly not to expand it or amend it 
further.
    Thank you.
    [The prepared statement of Mr. Roth follows:]
                 Prepared Statement by Mr. Kenneth Roth
    Chairman Levin, Ranking Member Inhofe, other members of the 
committee, thank you for the opportunity to testify at this important 
hearing. My name is Kenneth Roth. I am the executive director of Human 
Rights Watch, an independent nongovernmental organization operating in 
some 90 countries worldwide for the purpose of investigating and 
reporting on human rights conditions and defending basic rights. Human 
Rights Watch holds governments and others to the standards of 
international human rights law and, in times of armed conflict, to 
international humanitarian law, or the laws of war. In this testimony, 
I will address three main issues: (1) how the 2001 Authorization for 
the Use of Military Force (AUMF) should be understood today and whether 
it should be extended or modified; (2) what laws should govern drone 
attacks; and (3) what should be done about Guantanamo and long-term 
detention without trial.
            the authorization for the use of military force
    When it comes to our most basic rights, there is probably no more 
important distinction than the line between peace and war. In 
peacetime, the government can use lethal force only if necessary to 
stop an imminent threat to life, and it can detain only after according 
full due process. But in wartime, the government can kill combatants on 
the battlefield, and it has greatly enhanced power to detain people 
without charge or trial. So, safeguarding the right to life and liberty 
depends in important part on ensuring that the government is not 
operating by wartime rules when it should be abiding by peacetime 
rules.
    Human Rights Watch does not ordinarily take positions on whether a 
party to a conflict is justified in taking up arms. Rather, once armed 
conflict breaks out, we generally confine ourselves to monitoring how 
both sides to the conflict fight the war, with the aim of enforcing 
international standards protecting noncombatants. In the Latin terms 
used among legal experts, we focus on jus in bello, not jus ad bellum.
    However, the combination of a declared global war and the newly 
enhanced capacity to kill individual targets far from any traditional 
battlefield poses new dangers to basic rights--ones that will only grow 
as the U.S. role in the Afghan armed conflict winds down. That leaves 
only al Qaeda and similar armed groups but without the elements that 
traditionally limit use of the war power: the control of territory and 
a recognizable battlefield. To paint the problem most starkly, might a 
government that wants to kill a particular person simply declare 
``war'' on him and shoot him, circumventing the basic due-process 
rights to which the target would ordinarily be entitled? Or, might a 
government intent on wiping out a drug gang simply declare ``war'' on 
its members? If a government wants to be less draconian but still avoid 
the burden of mounting a criminal prosecution, might it declare ``war'' 
on drug trafficking and detain without trial any participants it picks 
up?
    These are not fanciful scenarios. Drug traffickers pose a violent 
threat to many Americans and are almost certainly responsible for more 
American deaths than terrorism. Already we talk of a metaphorical war 
on drugs. Why not a real war?
    I hope we cringe at that thought. Detested as drug traffickers are, 
I hope we recoil at the thought of summarily killing or detaining them. 
But that is the risk if we allow the government unhindered discretion 
to decide when to apply war rules instead of peace rules. This threat 
of an end run around key constitutional rights highlights the need to 
articulate clear limits to any war related to terrorism.
    Some have suggested that mere transparency around the war-peace 
distinction should be enough--that Congress might authorize ongoing war 
against terrorist groups present and future so long as the 
administration states clearly at any given moment the groups with which 
it is at war. But that open-ended authorization is dangerous, because 
governments will be tempted to take the easy path of war rules over the 
more difficult path of respecting the full panoply of rights that 
prevail in peacetime. We cannot trust that public scrutiny is enough to 
restrain abuse given how easy it is to vilify alleged terrorist groups.
    If a particular group poses such a serious threat that it can be 
met only with war, focused war authorization can be sought. But an open 
invitation to live by war rules makes it too easy for the government to 
circumvent key rights.
    Indeed, it is perilous enough when the government entrusted with 
the power to set aside certain peacetime rights is the United States. 
But once the U.S. Government takes this step, we can be certain that 
governments with far less sensitivity to rights will follow suit. The 
Chinas and Russias of the world will be all too eager to seize this 
precedent to pursue their enemies under war rules, be they 
``splittist'' Tibetans or ``subversive'' dissidents.
    Even without the AUMF, the United States is hardly defenseless 
against the scourge of terrorism. Since the September 11 attacks nearly 
a dozen years ago, the United States has vastly enhanced its 
intelligence, surveillance, and prosecutorial capacities. Should these 
tools prove insufficient to meet a particular threat, the right of 
self-defense still allows resort to military force. However, because of 
the fundamental rights at stake, war should be an option of necessity, 
not a blank check written in advance, as some are proposing for a 
revamped AUMF. Now that the Afghan war is winding down, it is time to 
retire the AUMF altogether.
                             drone attacks
    The problem of excessive reliance on the rules of war for using 
deadly force is illustrated by the use of drones to kill suspects. 
Drone attacks do not necessarily violate international human rights or 
humanitarian law. Indeed, given their ability to survey targets for 
extended periods and to fire with pinpoint accuracy, drones may pose 
less of a threat to civilian life than many alternatives. Still, their 
use has become controversial because of profound doubts about whether 
the Obama administration is abiding by the proper legal standards to 
deploy them. For example, killing Taliban and al Qaeda forces fighting 
U.S. troops may be lawful in a traditional armed conflict like the one 
still underway in Afghanistan, but what is the justification for 
killing people who are not part of these groups in places like Yemen 
and Somalia? Where does northwestern Pakistan fit?
    The Obama administration has offered several possible legal 
rationales for drone strikes, but with little clarity about the 
concrete, practical limits, if any, under which it purports to operate. 
Beyond the risk to people in these countries who face possible wrongful 
targeting, the lack of clarity denies Congress and the American public 
the ability to exercise effective oversight. It also makes it easier 
for other countries that are rapidly developing their own drone 
programs to interpret that ambiguity in a way that is likely to lead to 
serious violations of international law.
    One possible rationale for drone strikes comes from international 
humanitarian law governing armed hostilities. The Obama administration 
has formally dropped the Bush administration's use of the phrase 
``global war on terror,'' but its interpretation of the AUMF as 
authorizing ``war with al Qaeda, the Taliban, and associated forces'' 
looks very similar. This expansive view of the ``war'' currently facing 
the United States cries out for a clear statement of its limits. Does 
the United States really have the right to attack anyone it might 
characterize as a combatant against the United States anywhere in the 
world? We would hardly accept summary killing if the target were 
walking the streets of London or Paris.
    John Brennan has said that as a matter of policy the administration 
has an ``unqualified preference'' to capture rather than kill all 
targets. But what are the factors leading the administration to decide 
that this preference can be met? Will it kill simply because convincing 
another government to arrest a suspect may be difficult? If so, how 
much political difficulty will it put up with before launching a drone 
attack? Will it kill simply because of the risk involved if U.S. 
soldiers were to attempt to arrest the suspect? If so, how much risk is 
the administration willing to accept before pulling the kill switch? 
The truth is that we have no idea. We don't know whether these 
decisions are being made with appropriate care or not. We do know that 
other governments are likely to interpret this ambiguity in ways that 
are less respectful than we would want of the fundamental rights 
involved.
    Moreover, away from a traditional battlefield, international human 
rights law requires the capture of enemies if possible. As noted, 
failing to apply that law encourages other governments to circumvent it 
as well--to summarily kill suspects simply by announcing a ``war'' 
against their group without there being a traditional armed conflict 
anywhere in the vicinity. Imagine the mayhem that Russia could cause by 
killing alleged Chechen ``combatants'' throughout Europe, or China by 
killing Uighur ``combatants'' in the United States. In neither case is 
the government where the suspect is located likely to cooperate with 
arrest efforts. These precedential fears are real: China recently 
considered using a drone to kill a drug trafficker in Burma.
    Even leaving aside the scope of the ``war'' in which the United 
States is engaged, the existence of armed conflict entitles the warring 
parties to shoot at only the other side's combatants, not civilians. 
Indeed, under the laws of war, all feasible precautions must be taken 
to avoid harm to civilians, and in case of doubt a person must be 
considered a noncombatant. How does the Obama administration square 
these legal limitations with its alleged use of ``signature strikes,'' 
that is, its attacks on people whose identities are unknown but who are 
seemingly deemed to be combatants by virtue of behavior that is shared 
by people who are not directly participating in hostilities against the 
United States. For example, in places like Yemen or Somalia, many 
people carry weapons openly without being part of any combat force, let 
alone one challenging the United States. Nor does a person become a 
combatant merely by associating with others who might be planning to 
attack Americans, given that international humanitarian law recognizes 
many such people--drivers, cooks, doctors, financiers--as 
noncombatants. The administration's lack of transparency means we have 
no idea whether or not in launching drone attacks it is applying a 
legally defensible definition of a combatant.
    There is also the question of whose war the United States is 
fighting. Most assume that it is targeting only people plotting to 
attack the United States, but there are reasons to doubt that 
assumption. The vagueness of the signature-strike criteria means it is 
quite possible that the people being targeted are at war with the 
Governments of Yemen or Pakistan, not the United States. In one 
recently reported case, the United States appeared to target someone in 
Pakistan whom the Pakistani Government wanted to eliminate but who was 
not engaged in any hostilities against the United States; the killing 
reportedly occurred as a quid pro quo for allowing the Central 
Intelligence Agency (CIA) to operate its drone program in Pakistan.\1\ 
There is no law barring the United States from fighting other nations' 
wars, but that is not what most Americans think the drone program is 
doing.
---------------------------------------------------------------------------
    \1\ Jonathan Landay, ``Obama's drone war kills `others,' not just 
al Qaeda leaders,'' McClatchy Newspapers, April 9, 2013; Mark Mazetti, 
``A secret deal on drones, sealed in blood,'' The New York Times, April 
6, 2013.
---------------------------------------------------------------------------
    Even in the absence of a combatant at war with the United States, 
the U.S. Government is entitled to use lethal force in certain limited 
circumstances under international human rights law. A police officer on 
the streets of Washington, for example, is entitled to shoot a suspect 
if it is the last feasible resort to avoid an ``imminent'' threat to 
life--such as when a hostage-taker is holding a gun to a victim's head. 
That same standard might justify targeting people overseas as well 
(leaving aside questions of sovereignty, which would depend on the 
consent of the relevant government).
    At times, the Obama administration has used this language of 
imminence but it has done so in a way that seems to render it 
infinitely elastic. The administration has argued that it should not 
have to wait until the last possible moment to avert a planned attack--
a fair point--but in certain circumstances it appears to be lethally 
striking targets where no reasonable claim of an imminent threat can be 
made. The alleged use of signature strikes provides perhaps the 
clearest illustration of the problem. The lack of clarity and 
transparency surrounding the drone program leaves the impression that 
people are being targeted for no more than carrying weapons and 
associating with unsavory people. The administration's unwillingness in 
many cases to articulate anything remotely resembling an imminent 
threat makes it seem that human rights standards on policing, insofar 
as they are being relied upon to justify drone strikes, are being 
flouted.
                               guantanamo
    International human rights law prohibits prolonged detention 
without charge or trial, yet many detainees have been held in 
Guantanamo for 11 years without charge. For many of them, the 
administration says it has no plan ever to prosecute. The 
administration sought to justify these detentions at first by reference 
to international law governing armed conflict between governments, but 
the conflict between the United States and Afghanistan ended in 2002. 
The administration now clings to the AUMF, but the factual predicate 
for it--U.S. involvement in the conflict with the Taliban and al 
Qaeda--is also coming to an end. In any event, people detained in the 
context of an armed conflict between a government and an armed group--
such as the current conflict in Afghanistan--should be charged and 
tried, not detained. The administration's misuse of the AUMF to 
rationalize prolonged detention without trial in Guantanamo is another 
reason why the AUMF should not be extended.
    Moreover, when it comes to combatants in an armed conflict, the 
power to detain can easily be linked to the power to kill. If the 
United States is going to claim the right to detain ``combatants'' 
without end on the basis of a global war unconnected to a traditional 
battlefield, against a non-state enemy that does not control any 
substantial territory, other nations will undoubtedly make similar 
claims. Once governments identify people as combatants, however 
wrongful that may be, they will inevitably claim the power not only to 
detain them without charge or trial but also to kill them. Although the 
United States currently detains many people who are clearly not 
combatants--those drivers, cooks, doctors and financiers, among 
others--it should be mindful of how its policies can be interpreted.
    The best solution is still to try suspects in regular Federal 
courts, with their entrenched procedural protections designed to 
provide fair trials. Security concerns can reasonably be handled; for 
example, if trials in the regular U.S. Courthouse for the Southern 
District of New York are deemed too difficult despite its long history 
of trying dangerous criminals such as drug czars and mafia dons, trials 
could be held securely and with little disruption on nearby Governor's 
Island. However, the United States has already tried former CIA- and 
Guantanamo-detainee Ahmed Ghailani without incident in the regular 
courthouse for the Southern District of New York.
    By contrast, Congress' insistence on using military commissions at 
Guantanamo has been an unmitigated disaster. The only two convictions 
obtained after full trials have both been overturned by the United 
States Court of Appeals for the District of Columbia Circuit; the five 
other convictions obtained were by plea bargain. During the same time 
that the military commissions have obtained these seven convictions, 
Federal courts have prosecuted some 500 terrorism suspects. In 
addition, there are profound and legitimate concerns about the fairness 
of a system that, among other things, permits the introduction into 
evidence of coerced statements from witnesses, allows the military to 
hand-pick the jury pool, and severely compromises the attorney-client 
privilege.
    Roughly half of the Guantanamo detainees have theoretically been 
approved for transfer to their home or third countries, and those 
transfers can proceed if the administration certifies that appropriate 
security arrangements have been made. The administration should 
accelerate its efforts to make those arrangements.
    However, the administration also claims that there remains a 
category of detainees who are ``too dangerous'' to release but who 
cannot be tried because either there is insufficient admissible 
evidence to prosecute them or their acts did not amount to a chargeable 
crime. The administration purports to hold these men under the above-
described war powers. But even under war rules, the purpose of 
detention is to keep the enemy from returning to the battlefield. As 
the U.S. involvement in the Afghan war winds down, it is not clear what 
war the men released from Guantanamo would return to. If the fear is 
that they would join in criminal activity, the answer lies in criminal 
prosecution, including for such inchoate crimes as conspiracy or 
attempt, not the ``Minority Report'' approach of detaining them for 
crimes that they might at some future point plan to commit.
    Given Guantanamo's enormous stain on America's reputation, there is 
good reason to believe that these continuing detentions are causing 
more harm than good to America's security and counterterrorism efforts. 
President Obama himself has stated that keeping Guantanamo open weakens 
U.S. national security. For the same reasons that long-term detention 
without trial is wrong and counterproductive in Guantanamo, it would be 
wrong and counterproductive if moved to the United States. That would 
simply replicate Guantanamo in another locale.
    One of Congress' most solemn duties is to protect human rights, 
especially the fundamental rights to life and liberty. War is sometimes 
necessary, but before embarking on that dangerous path, the risk to 
rights should be weighed carefully. This nation has now been on a war 
footing for an extraordinarily long time. Security risks will never be 
eliminated. But, as the Afghan war winds down, we have arrived at the 
stage where those risks can be managed without the danger to rights 
that further declared ``war'' entails. It is time to retire the AUMF 
and the unlawful practices it has spawned and sustained.

    Chairman Levin. Thank you very much, Mr. Roth.
    Mr. Stimson.

 STATEMENT OF MR. CHARLES STIMSON, MANAGER, NATIONAL SECURITY 
              LAW PROGRAM, THE HERITAGE FOUNDATION

    Mr. Stimson. Thank you, Mr. Chairman and Senator Inhofe and 
distinguished members of the committee for inviting me here 
today.
    I found particularly helpful the 15 questions that the 
committee put to all the witnesses. I have tried to weave 
answers to many of the themes running throughout those 
questions in my written responses, and I am going to focus on 
one aspect of that today.
    My views are informed much like Professor Corn's by my 20-
plus years in uniform as a Navy Judge Advocate General, but 
also as my time as a Deputy Assistant Secretary of Defense in 
charge of detainee policy when I had the privilege in the 
second part of the Bush administration to testify before this 
committee regarding the Army field manual on interrogations and 
detainee policy.
    I want to explain and defend why I believe it would be 
unwise, at least at this time, to amend or repeal the AUMF and 
suggest some principles going forward for any additional 
legislation aimed at those organizations or entities that pose 
a substantial terrorist threat to our country but who are not 
specifically covered by the current AUMF.
    Let me just say as a third generation Navy man, let me be 
blunt. Nobody, especially anybody in the U.S. military, wants 
to be in the state of armed conflict. Any authorization for use 
of military force, be it from legislation or even Article II 
powers or both, must be done only when absolutely necessary and 
only as a last resort.
    Both the Bush and Obama administrations have concluded that 
our country is at war and that it is, indeed, engaged in an 
armed conflict with al Qaeda. The 2001 AUMF directed the 
President in the preamble to, ``protect the United States 
citizens both at home and abroad,'' and authorized him to use 
all necessary and appropriate force against--and then the 
chairman quoted it in the beginning of his comments--``those 
nations, organizations, or persons he determined planned, 
authorized, committed, or aided the terrorist attacks on 
September 11 or aided or harbored same.''
    I take Senator King's point about the past tense. But I 
would say to that that the U.S. Supreme Court has affirmed our 
engagement in an armed conflict, and consistent with the law of 
armed conflict, the United States may use force, including 
lethal force, against its enemies. The AUMF, as you heard from 
the first panel, has and continues to act as the legal 
framework for, among other things, detention and targeting 
decisions.
    I want to address something that Senator King brought up 
and I think is floating around the room about the AUMF. The 
AUMF is actually self-limiting.
    First, it is limited to al Qaeda, the Taliban, and persons 
and forces associated with those organizations. It is not a 
mandate to use force against any terrorist organization or 
other entity that may threaten U.S. national security.
    Second, it is limited by the principle that force should be 
deployed only, ``in order to prevent any future acts of 
international terrorism against the United States.'' That comes 
from the AUMF itself.
    Third, as you have heard from the first panel, it is 
limited by the law of armed conflict. Both administrations have 
taken the rather realistic and unremarkable position that there 
is no geographic limit to the AUMF. The enemy is where the 
enemy is.
    The current AUMF is consistent with the law of armed 
conflict and our national and international obligations. It is 
not, as some have argued, a boundless source of tyranny and 
infringement upon other nations' sovereignty.
    Now, I would be remiss if I did not point out the obvious--
that we have made, obviously, great strides in defeating or at 
least degrading the capacity of the narrow class of groups and 
individuals subject to the AUMF. But until and unless those 
subject to the AUMF no longer pose a substantial national 
security threat to the United States, the AUMF should remain in 
place. Repealing or amending the AUMF prematurely would be 
unwise. It will, hopefully, obsolete itself as al Qaeda and the 
Taliban and associated forces are eventually defeated, which I 
think we can all agree on is a worthy goal.
    At the same time, I would commend the committee to read 
additional materials, especially the one proposed by Professor 
Goldsmith and some colleagues, to start thinking about what 
comes after the AUMF because the day when it will no longer be 
sufficient to meet the evolving terrorist threat I think is 
approaching. I think we can debate how long or how close we 
are, but I think it is approaching. Assessing that evolving 
terrorist threat, as I detail more in my written comments, is a 
critical first step. If that particular evolving terrorist 
threat from groups that do not fall within the narrow bounds of 
the AUMF poses a substantial national security threat to the 
United States, then acting under the principle of national 
self-defense, Congress may, and I stress the word ``may'', need 
to consider additional legislation to confront that threat.
    I would respectfully suggest keeping these principles in 
mind when considering additional legislation, which I go into 
more detail in my written submission to the committee.
    One, any additional legislation must grow out of an actual 
national security threat to the United States and a need for 
that legislation.
    Two, it should follow the substance of the current AUMF and 
authorize the President to use, ``all necessary and appropriate 
force.'' I want to pick up on Professor Corn's comments to that 
regard.
    Three, crafting the legislation consistent with Youngstown 
Sheet & Tube should be done in a way that is an open and 
transparent manner and brings the three branches of the 
Government, or at least the two branches of the Government, 
together.
    Finally, I want to touch on something Mr. Roth said. We 
must not forget that we have greatly enhanced our Nation's 
capability to confront international terrorist threats since 
September 11. Any additional legislation must be measured 
against the already existing intelligence gathering, law 
enforcement, and other capacities we have as a country and then 
only authorized if necessary.
    In closing, I want to commend this committee for holding 
the hearing. Counterterrorism strategy and the defense of our 
country should not be a partisan issue. We can and must debate 
these different approaches, but we need to do so in a civil, 
apolitical manner. The threat of international terrorism is 
indeed real. I commend the committee for trying to work 
together to craft answers to these 15 tough questions and 
others the committee may have.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Stimson follows:]
               Prepared Statement by Mr. Charles Stimson
    Chairman Levin, Ranking Member Inhofe, and members of the 
committee, thank you for inviting me to testify on the law of armed 
conflict, the use of military force, and the 2001 Authorization for Use 
of Military Force (AUMF). My name is Charles Stimson, and I am a Senior 
Legal Fellow and Manager of the National Security Law Program at in the 
Kathryn and Shelby Cullom Davis Institute for International Studies at 
The Heritage Foundation. Before joining the Davis Institute in May 
2013, I served as Heritage's Chief of Staff, and as a Senior Legal 
Fellow in Heritage's Center for Legal and Judicial Studies. I have 
written, lectured, testified, and debated widely on subjects including 
the law of armed conflict, military commissions, detention and 
interrogation policy, and other pressing national security policies. 
The views I express in this testimony are my own, and should not be 
construed as representing any official position of The Heritage 
Foundation.
    Prior to joining Heritage in 2007, I served as the Deputy Assistant 
Secretary of Defense for Detainee Affairs, where I advised both 
Secretary Rumsfeld and Secretary Gates on global detention policy and 
matters regarding the detainees within the custody or effective control 
of the Department of Defense, including those in Iraq, Afghanistan, and 
Guantanamo Bay. During my tenure at the Pentagon, we finalized and 
eventually published the overarching Department of Defense instruction 
related to detainees,\1\ drafted the Military Commissions Act of 2006, 
republished the Army Field Manual on interrogations,\2\ accepted 
transfer of the 14 High Value Detainees from the Central Intelligence 
Agency to Guantanamo Bay, presented the United States' Second Periodic 
Report to the United Nations Committee Against Torture, and undertook 
many other crucial actions dealing with detainee policy.
---------------------------------------------------------------------------
    \1\ Department of Defense Instructions 2310.01E, found here: http:/
/www.defense.gov/pubs/pdfs/Detainee--Prgm--Dir--2310--9-5-06.pdf
    \2\ Formally known as FM 2-22.3 (FM 34-52), Human Intelligence 
Collector Operations, published September 2006. Electronic copy here: 
https://www.fas.org/irp/doddir/army/fm2-22-3.pdf
---------------------------------------------------------------------------
    I have also served as a local, State, Federal, and military 
prosecutor and defense counsel, most recently having served as an 
Assistant U.S. Attorney for the District of Columbia, where I was a 
homicide/violent crimes prosecutor. I currently serve as the Deputy 
Chief Trial Judge and Executive Officer for the Navy-Marine Corps Trial 
Judiciary, Reserve component, where I hold the rank of Commander. In my 
20 years in the Navy Judge Advocate General's Corps (JAG), I have 
served three tours on active duty, including one assignment overseas. 
Additionally, in the spring of 2000, I deployed as Force Judge Advocate 
with Commander of Amphibious Group Two to East Africa as part of 
Operation Natural Fire, a joint military training exercise. In the 
spring of 2001, I deployed with the Navy SEALS as part of Naval Special 
Warfare Group Two as their Joint Special Operations Task Force JAG to 
take part in joint task force exercise. The views I express here are 
mine, and do not necessarily reflect those of the Departments of 
Defense or Navy, or the U.S. Navy JAG Corps.
    Today's topics are particularly timely given the fact that over a 
decade has passed since the September 11, 2001, attacks and the 
September 18, 2001, AUMF joint resolution came into force. I commend 
this committee for holding this hearing and for putting together a 
thoughtful set of questions for today's witnesses. It is an honor to 
appear before you with my co-panelists, all of whom are experts in this 
field. It is vitally important that this committee and Congress as a 
whole take stock of the current terrorist threats to our security and 
provide those tools necessary and lawful to those charged with its 
defense, consistent with the principles of oversight and 
accountability.
    The committee's invitation included 15 interrelated questions that 
cover a broad range of topics, from the scope and duration of AUMF to 
its current efficacy and the principles underlying the use of remotely 
piloted aircraft. Providing thorough answers to these important 
questions could easily take up several law review articles. Given the 
committee's focus and the limited time to prepare for this hearing, I 
have focused my testimony on several themes that run throughout the 
committee's questions.
                 a primer on the law of armed conflict
    Both the Obama and Bush administrations have concluded that our 
country is at war--in particular, that it is engaged in an ``armed 
conflict'' with al Qaeda and associated forces. President Obama 
reiterated the point during his first inaugural speech, and his 
administration has since repeatedly restated that position. The Supreme 
Court has affirmed our engagement in an armed conflict in, among other 
decisions, that of Hamdi v. Rumsfeld in 2004. A country in a state of 
armed conflict may resort to that body of law called the law of armed 
conflict.
    Those who study the law of armed conflict come to know and 
understand the basic principles and purposes of that rich body of law. 
It is worth reviewing those basic principles for purposes of setting 
the stage for the questions posed by the committee. I studied the law 
of war as a JAG, and refer the committee to the Army's Operational Law 
Handbook,\3\ wherein it states:
---------------------------------------------------------------------------
    \3\ Operational Law Handbook, International and Operational Law 
Department, The Judge Advocate General's Legal Center & School, U.S. 
Army. 2007. Pages 12-16. Link found here: http://www.dtic.mil/cgi-bin/
GetTRDoc?AD=ADA469294

        The law of war is defined as that part of international law 
        that regulates the conduct of armed hostilities. It is often 
        termed the law of armed conflict. The fundamental purposes of 
        the law of war are humanitarian and functional in nature. The 
---------------------------------------------------------------------------
        humanitarian purposes include:

      (1)  Protecting both combatants and noncombatants from 
unnecessary suffering;
      (2)  Safeguarding persons who fall into the hands of the enemy; 
and
      (3)  Facilitating the restoration of peace.

        The functional purposes include:

      (1)  Ensuring good order and discipline;
      (2)  Fighting in a disciplined manner consistent with national 
values; and
      (3)  Maintaining domestic and international public support.

        The law of war rests on four basic principles:

      (1)  The principle of necessity--which authorizes that use of 
force required to accomplish the mission;
      (2)  The principles of distinction or discrimination--the 
requirement that combatants be distinguished from non-combatants, and 
that military objectives be distinguished from protected property or 
protected places;
      (3)  The principle of proportionality--the concept that the 
anticipated loss of life and damage to property incidental to attacks 
must not be excessive in relation to the concrete and direct military 
advantage expected to be gained; and
      (4)  The principle of humanity or unnecessary suffering--a 
military force must minimize unnecessary suffering and is forbidden 
from employing arms or materials calculated to cause unnecessary 
suffering.

    These principles are particularly important to keep in mind when, 
for example, discussing the committee's questions concern the use of 
remotely piloted aircraft, or ``drones.'' Although the technology may 
be new, drones are simply tools subject to the same principles for 
deployment as any other weapons system employed under the law of armed 
conflict. As my colleague Steven Groves has explained in an 
exhaustively detailed report on the legal basis for drone warfare, the 
Obama administration's framework for carrying out targeted strikes with 
drones appears to adhere to recognized principles of the law of war 
described above.\4\ Indeed, drones may allow a greater degree of 
distinction than previous generations of weapons technology, reducing 
expected collateral damage and injuries. In this way, the United States 
may carry out the necessities of warfare in a highly efficient and 
targeted fashion.
---------------------------------------------------------------------------
    \4\ See Steven Groves, Drone Strikes: The Legality of U.S. 
Targeting Terrorists Abroad, Heritage Foundation Backgrounder No. 2788, 
April 10, 2013, at http://www.heritage.org/research/reports/2013/04/
drone-strikes-the-legality-of-us-targeting-terrorists-abroad.
---------------------------------------------------------------------------
    I also agree with the point raised by the Brookings Institution's 
Benjamin Wittes that any thoughtful discussion of drone warfare must 
distinguish between policy and means. Much criticism of drone warfare 
is actually criticism of broader policies, such as the application of 
the law of armed conflict to the present conflict, geographical 
limitations on such conflict, and targeting decisions. Whether a strike 
is carried out by a drone or an airplane (with the pilot in the vehicle 
itself) has little or no bearing on these broader policy issues.\5\ As 
Wittes explains, drone use is appropriate in the context of an armed 
conflict:
---------------------------------------------------------------------------
    \5\ See generally Benjamin Wittes, Drones and the War on Terror: 
When Can the U.S. Target Alleged American Terrorists Overseas? 
Testimony Before the House Committee on the Judiciary, February 27, 
2013, at http://www.brookings.edu//media/Research/Files/Testimony/
2013/02/27%20drones %20wittes/
Feb%2027%20Drones%20Wittes%20Testimony.pdf.
---------------------------------------------------------------------------
    The ability to target the enemy in an armed conflict with lethal 
force is a simple, and lawful, operational necessity in a world in 
which enemy organizations in countries and locations impossible to 
reach by law enforcement continue to threaten the United States. The 
fact of armed conflict--and the consequent availability of targeting--
does not mean automatic recourse to hostilities, of course. There are 
many places in the world where the United States can and does pursue 
terrorists through law enforcement, interdiction of terrorist 
financing, and other non-hostilities-based tools of counterterrorism. 
But there are other places in the world that are weakly governed, 
ungoverned, or simply hostile to the United States, where terrorist 
groups responsible for September 11 have fled, or in which associated 
terrorist groups or cells have arisen and joined the conflict against 
the United States. The armed conflict framework, and the inherently-
tied authority to target the enemy with lethal force, is essential to 
reaching these actors and denying them sanctuary from which to attack 
this country.\6\
---------------------------------------------------------------------------
    \6\ Ibid. at 6.
---------------------------------------------------------------------------
    I agree, as well, with Wittes's conclusion that this point should 
engender no particular controversy.
    The law of armed conflict, in addition to authorizing a country to 
use force against its enemies--which, by the way, may consist of both 
state and non-state actors--also authorizes the country to detain such 
enemies for the duration of the hostilities, without criminally 
charging them. The fact that we do not know when the hostilities 
against al Qaeda will end does not change the fact that the United 
States has the legal authority to hold captured al Qaeda members during 
ongoing hostilities. As a practical matter, however, the United States 
has transferred or released the vast majority of captured al Qaeda and 
Taliban combatants, even as we kill or capture others.
    the september 18, 2001, authorization for use of military force
    In response to the devastating attacks against our Homeland, 
Congress passed a joint resolution a week after the attack, on 
September 18, 2001. The preamble to the AUMF directs the President ``to 
protect U.S. citizens both at home and abroad.'' The operative text 
authorizes the President 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, or aided the terrorist attacks that occurred on 
September 11, 2001, or harbored such organizations or persons, in order 
to prevent any future acts of international terrorism against the 
United States by such nations, organizations, or persons.''
    This authorization for the use of force has acted, and still acts, 
as the legal framework for, among other things, targeting and detention 
operations. Two administrations have relied on the AUMF to engage those 
actors who were responsible for, aided, or harbored those responsible 
for September 11.
    Ninety-eight Senators voted for the Joint Resolution along with 420 
members of the House of Representatives. The AUMF has served the 
country well. It has enabled our warfighters, intelligence 
professionals, and other stakeholders to carry out their work, knowing 
that Congress has given express authorization for the use of 
appropriate and proportional force to confront an enemy that was 
responsible for the worst attack against our country since Pearl 
Harbor.
    It is important to note the ways in which the AUMF is self-
limiting. First, it is limited to al Qaeda, the Taliban, and persons 
and forces associated with those ``organizations.'' It is not a mandate 
to use force against any terrorist organization or other entity that 
may threaten U.S. national security.\7\ Second, it is limited by the 
principle that force should be deployed only ``in order to prevent any 
future acts of international terrorism against the United States.'' 
Third, as described above, it incorporates and is limited by the law of 
armed conflict. In these respects, the AUMF is consistent with prior 
force authorizations that have targeted non-state actors.\8\
---------------------------------------------------------------------------
    \7\ Note that Congress considered and rejected the Bush 
administration's initial request for authority to ``deter and pre-empt 
any future acts of terrorism or aggression against the United States,'' 
without regard to the entities involved. See generally Curtis Bradley & 
Jack Goldsmith, Congressional Authorization and the War on Terrorism, 
118 Harv. L. Rev. 2047, 2079 (2005).
    \8\ See, e.g., Pub. L. 15-101, 3 Stat 532, 532-33 (1819) 
(authorizing force against slavers); Pub. L. 15-77, 3 Stat. 510, 510-11 
(1819) (authorizing force against pirates); Pub. L. 17-7, 3 Stat. 721 
(1823) (same); 33 U.S.C. Sec. Sec. 381-82 (same).
---------------------------------------------------------------------------
    The AUMF, by its own language, does not have an expiration date, 
nor should it. While it is true that over the decade we have made hard-
fought gains against the al Qaeda leadership, and key members of the 
Taliban and associated forces, other elements of those organizations 
still pose a continuing threat to the United States. I base this 
opinion not on current intelligence briefings--to which I no longer 
have access--but my reading of open source materials. That said, 
Congress does have access to classified intelligence briefings, and I 
encourage a thorough and dispassionate evaluation of the current 
threats by Congress.
    As to the committee's question regarding the geographic scope of 
the AUMF, both administrations have taken the unremarkable position 
that by its terms, and in practice, there is no geographic limit or 
scope to the AUMF. Rather, the AUMF gives the President the authority 
to confront the enemy wherever he deems the enemy resides. Just last 
year, in a major address at Northwestern University, Attorney General 
Eric Holder stated, ``Our legal authority is not limited to the 
battlefields in Afghanistan. Indeed, neither Congress nor our Federal 
courts have limited the geographic scope of our ability to use force to 
the current conflict in Afghanistan.'' \9\
---------------------------------------------------------------------------
    \9\ Address at Northwestern School of Law of March 5, 2012. Text 
found here: http://www.justice.gov/iso/opa/ag/speeches/2012/ag-speech-
1203051.html
---------------------------------------------------------------------------
    The notion that we are at war, and that the war (and by implication 
the AUMF) has no geographical boundaries is anathema to some, but is 
nevertheless lawful and consistent with the law of armed conflict and 
our national and international obligations. It is also not the 
boundless source of tyranny and infringement upon other nations' 
sovereignty that detractors profess; rather, the national security 
power of the politically accountable branches are subject to all of the 
checks and balances within our constitutional form of government, as 
well as the more modern checks detailed by fellow witness Jack 
Goldsmith in his book Power and Constraint. It is commensurate, in this 
case, with the enemy, an international terrorist movement that does not 
respect political or any other boundaries and that considers the people 
and assets of the United States and its allies, wherever they may be, 
to be its targets.
    As to the committee's question regarding whether the AUMF should be 
modified, or by implication repealed, I would suggest that repealing 
the AUMF prematurely would be unwise. Repealing the AUMF would signal, 
legally, that the war against al Qaeda is over, at a time when al Qaeda 
and associated forces continue, in fact, to wage war against the United 
States. It may have more specific consequences, for example, involving 
the continued detention of those terrorists currently in captivity and 
not subject to military commission or Federal court proceedings.
    Repealing or substantially narrowing the existing AUMF could also 
have substantial repercussions on other sensitive operations, including 
but not limited to the targeted killing program.
    In short, the current AUMF should remain in place unless and until 
the narrow class of persons under its scope no longer poses a 
substantial threat to our national security. Keeping the current AUMF 
does not authorize a permanent state of war, as some critics have 
alleged. It merely retains the legal framework that has worked and 
served us well, to date, and acknowledges that those subject to the 
AUMF, although greatly diminished in number and efficacy, should not be 
allowed to regain their footing.
    In the context of the AUMF, keeping the AUMF as is does not 
necessarily mean that the executive branch, this one or the next, will 
want to or need to employ the full extent of its authority. We cannot 
foresee with precision when or if the threats posed by those subject to 
the narrow jurisdiction of the AUMF will be defeated or become so 
insignificant as to not warrant this particular AUMF.
                    the aumf and detention authority
    Despite the fact that the express language of the AUMF does not 
include the words ``detention,'' each of the three branches of the 
Federal Government, including the executive branch across two 
administrations, has recognized that the AUMF necessarily includes the 
power to detain those subject to the boundaries of the AUMF.
    In June 2002, the Bush administration argued in its brief before 
the Fourth Circuit in the case of United States v. Hamdi, that the 
authority to detain Yasser Hamdi flowed from the Commander in Chief's 
Article II powers and from the ``statutory authorization from Congress 
. . . Furthermore, the President here is acting with the added measure 
of the express statutory backing of Congress.'' It cited the AUMF.
    Similarly, in its brief before the Supreme Court in Hamdi in 2004, 
the Bush administration argued that its detention authority stemmed, in 
part, from the AUMF as that authority ``comes from the express 
statutory backing of Congress.''
    As is well known by now, the Supreme Court held in Hamdi that 
``Congress has in fact authorized Hamdi's detention, through the 
AUMF.'' As the Court explained, citing longstanding, consistent 
executive practice and the law of war, ``detention of individuals [who 
fought against the United States as part of the Taliban], for the 
duration of the particular conflict in which they were captured, is so 
fundamental and accepted an incident to war as to be an exercise of the 
`necessary and appropriate force' Congress has authorized the President 
to use.'' \10\ The Bush administration relied on the AUMF's detention 
authority in subsequent cases, including those regarding Jose Padilla 
and Ali Saleh Kahlah al-Marri.
---------------------------------------------------------------------------
    \10\ Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004).
---------------------------------------------------------------------------
    The Obama administration has continued to rely on the AUMF for 
detention authority. In its first brief before a court on the matter--
here, in the context of habeas litigation from three Guantanamo 
detainees--the administration argued that ``The United States bases its 
detention authority as to such persons on the Authorization for the Use 
of Military Force.''\11\ Their brief went on to say that ``detention 
authority conferred by the AUMF is necessarily informed by principles 
of the laws of war,''\12\ which is a position also taken by the Bush 
administration and the courts in numerous instances. In particular, it 
arrived at the following ``definitional framework,'' premised on the 
application of the law of armed conflict to the AUMF, that has 
subsequently been upheld by the U.S. Court of Appeals for the DC 
Circuit:
---------------------------------------------------------------------------
    \11\ See http://www.justice.gov/opa/documents/memo-re-det-auth.pdf
    \12\ Ibid.
---------------------------------------------------------------------------
    The President has the authority to detain persons that the 
President determines planned, authorized, committed, or aided the 
terrorist attacks that occurred on September 11, 2001, and persons who 
harbored those responsible for those attacks. The President also has 
the authority to detain persons who were part of, or substantially 
supported, Taliban or al Qaeda forces or associated forces that are 
engaged in hostilities against the United States or its coalition 
partners, including any person who has committed a belligerent act, or 
has directly supported hostilities, in aid of such enemy armed 
forces.\13\
---------------------------------------------------------------------------
    \13\ Ibid.
---------------------------------------------------------------------------
    Congress, in turn, ratified that framework in section 1021 of the 
2012 National Defense Authorization Act (NDAA). That provision 
``affirms'' the authority of the President under the AUMF to detain 
certain ``covered persons'':

    (1)  A person who planned, authorized, committed, or aided the 
terrorist attacks that occurred on September 11, 2001, or harbored 
those responsible for those attacks.
    (2)  A person who was a part of or substantially supported al 
Qaeda, the Taliban, or associated forces that are engaged in 
hostilities against the United States or its coalition partners, 
including any person who has committed a belligerent act or has 
directly supported such hostilities in aid of such enemy forces.

    Although there have been differences between the two 
administrations in terms of their reliance on Article II powers and 
detention authority, the fact remains that both administrations have 
consistently relied on the AUMF to justify detention of members of al 
Qaeda, the Taliban, and associated forces.
    Furthermore, both administrations have relied on the AUMF as a 
lawful basis for its targeted killing programs. Such a program, under 
proper supervision within the executive branch and appropriate 
oversight from Congress, is a necessary and invaluable tool.
                          assessing the threat
    Al Qaeda today remains a threat. The organization has evolved 
substantially from the relatively insular group that planned and 
carried out the September 11 attacks. Over the past decade, al Qaeda 
has ``franchised'' its name, its techniques, and its terrorist mission 
to any number of associated groups, including al Qaeda in the Arabian 
Peninsula and al Qaeda in the Islamic Maghreb. That period has also 
seen the rise of a number of terrorist groups with similar goals and 
varying relationships to the ``core'' al Qaeda organization. They 
include al Shabaab, Boko Haram, Jabhat al-Nusra, and Lebanese 
Hizballah.
    Robert Chesney's 2012 law review article entitled ``Beyond the 
Battlefield, Beyond al Qaeda: The Destabilizing Legal Architecture of 
Counterterrorism'' describes the strategic and legal complexity of the 
terrorist battlefield today. At the same time that al Qaeda itself has 
splintered, a number of groups have allied themselves with its mission, 
its techniques, and only sometimes al Qaeda itself. A few examples are 
illustrative of this trend:

          Al Qaeda has been linked in relatively unspecified ways to a 
        group of Islamist extremists in northern Nigeria known as Boko 
        Haram. The Algerian extremist group formerly known as the 
        Salafist Group for Call and Combat has embraced the al Qaeda 
        brand more formally, becoming ``al Qaeda in the Islamic 
        Maghreb,'' and has recently seized territory in Northern Mali 
        working in close concert with a local armed group of extremists 
        known as Ansar Dine (``Defenders of the Faith''). Multiple al 
        Qaeda-linked groups have emerged in the area of the Sinai 
        Peninsula in Egypt, including a group calling itself the 
        Mujahideen Shura Council and another called Ansar al Jihad. 
        Iraq famously became the home of al Qaeda in Iraq in the years 
        following the U.S. invasion, and was famously (and foolishly) 
        reluctant to conform its operations to the dictates of al 
        Qaeda's senior leadership in Pakistan in its first iteration; 
        after nearly being eliminated a few years ago, it is now 
        enjoying a substantial resurgence. As the civil war in Syria 
        unfolds, there are claims in the media regarding the presence 
        of ``al Qaeda'' fighters appearing, though whether this 
        represents an influx of al Qaeda in Iraq members, of homegrown 
        extremists appropriating al Qaeda's brand, something else, or 
        mere propaganda is far from clear at this time. The point 
        being, each of these groups may differ markedly from one 
        another in terms of their actual degree of connection to al 
        Qaeda itself, their interest in conducting operations targeting 
        American or other western targets outside the confines of the 
        state in which they usually operate, and in terms of their own 
        organizational coherence.\14\
---------------------------------------------------------------------------
    \14\ Robert Chesney, Beyond the Battlefield, Beyond Al Qaeda: The 
Destabilizing Legal Architecture of Counterterrorism, at 29-30 
(footnotes omitted).

    As Chesney concludes, al Qaeda has embraced an increasingly 
decentralized model, while seeking ties to already existing regional 
terrorist actors. The trend makes ever more tenuous the assumption 
underlying the AUMF that al Qaeda-style terrorism necessarily bears any 
direct or substantial relationship to al Qaeda itself, as is necessary 
to fall under the terms of the AUMF. As this trend continues, the day 
will come when substantial threats to the United States are no longer 
encompassed within the existing force authorization. For the present, 
however, al Qaeda's enormous organizational flexibility--perhaps its 
chief strength--has allowed us to defer addressing that issue.
         additional authorities to confront the evolving threat
    Still, it is not too early to begin thinking about what comes after 
the AUMF, because the day when it will no longer be sufficient to meet 
the terrorist threat is approaching. At this stage, the most important 
thing may be to frame how we approach this problem. In general, I 
commend to your attention a recent white paper by the Hoover 
Institution's Task Force on National Security and Law entitled ``A 
Statutory Framework for Next-Generation Terrorist Threats''\15\ co-
authored by fellow panelist Jack Goldsmith. In particular, a few key 
points are worth discussing here:
---------------------------------------------------------------------------
    \15\ http://media.hoover.org/sites/default/files/documents/
Statutory-Framework-for-Next-Generation-Terrorist-Threats.pdf
---------------------------------------------------------------------------
    First, the central consideration on whether to enact additional 
authorizations for the use of military force must be our national 
security needs. As al Qaeda continues to splinter, and new groups 
unassociated with al Qaeda proliferate, threats beyond the scope of the 
AUMF will become increasingly prevalent. At the outset, these may be 
addressed by greater attenuation of AUMF authority--a phenomenon that 
has already begun--and by non-military means. But as these threats 
grow, those methods will become infeasible. Congress and the President, 
working together, have a duty to ensure that appropriate legal 
authority exists to address these threats. That will require 
cooperation between the branches and a relationship of trust, 
particularly if the nature of this emerging threat requires greater 
flexibility in targeting than allowed by the AUMF.
    Second, the substance of the AUMF's force authorization should be 
followed. The AUMF's allowance that the President may bring to bear 
``all necessary and appropriate force'' against the entities 
encompassed by it is consistent with our constitutional architecture, 
with centuries of precedent, and with the need for flexibility in 
fighting a diverse and always evolving threat. Congress has never 
attempted to regulate the specific means by which the President has 
exercised his power as Commander in Chief. Beyond raising serious 
constitutional questions, limits on that authority would be folly 
because they would constrain the President's ability to wage war 
successfully on non-state actors whom Congress has already identified 
as the Nation's enemies. The better course is to separate the substance 
of a force authorization from its breadth.
    Third, narrowly tailored, flexible legislation by Congress, 
prepared in an open and transparent manner, best serves the interests 
of the American people. As Justice Jackson observed in his famous 
opinion in Youngstown Sheet & Tube, ``[w]hen the President acts 
pursuant to an express or implied authorization of Congress, his 
authority is at its maximum, for it includes all that he possesses in 
his own right plus all that Congress can delegate.''\16\ Consistent 
with that principle, when the President acts with the support of 
Congress, his actions bear greater legitimacy both domestically and 
internationally, in the courts and in these chambers. When the 
President acts on his own, as sometimes he must, his powers are more 
constrained and therefore may be less effective, while at the same time 
subject to less oversight and fewer checks by Congress and the courts. 
But make no mistake: the President has a duty to protect the Nation's 
security, and any President will, if and as necessary, rely on his 
Article II powers to carry out that duty in the face of imminent 
threats, even where Congress has not provided additional authority. 
Congress therefore weakens not only the President but also itself when 
and if it declines to face up to the threats against our Nation.
---------------------------------------------------------------------------
    \16\ Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 636 
(1952) (Jackson, J., concurring).
---------------------------------------------------------------------------
    Fourth, Congress must build on the AUMF, not replace it. To replace 
the AUMF would be risky and unwise at this time, because doing so would 
cast uncertainty on the legal basis for so many aspects of our campaign 
against al Qaeda. Any modification to the core AUMF grant of authority 
is risky for that reason. Over time, the AUMF will obsolete itself, as 
al Qaeda and the Taliban fade into oblivion, and when that process is 
finally complete, the AUMF will no longer have any purpose or meaning. 
We are not yet at that day, however. Therefore Congress may need to 
build on the AUMF, expanding its authority to reach new threats, rather 
than altering it at this time.
    Finally, Congress must always strive to balance the need for 
expediency in addressing threats with appropriate congressional control 
and oversight. No one suggests handing the President a blank check to 
carry out the power to declare war. The Constitution reserves that 
power to Congress. It also reserves to Congress the power of the purse 
and the power to regulate the armed services. These powers are 
essential to ensuring accountability for results and for the protection 
of Americans' rights, consistent with our values, as we fight enemies 
that reject those rights and those values.
                               conclusion
    In summary, the United States remains in a legal state of armed 
conflict with those responsible for the September 11 attacks. The 
current AUMF authorizes the use of force against this enemy and also 
allows this enemy to be detained under the law of war. The mere 
existence of the AUMF does not, in and of itself, authorize an endless 
war, as some critics contend. Rather, it merely authorizes the 
Commander in Chief to use those lawful authorities to confront and 
ultimately to defeat this enemy. Although those subject to the AUMF's 
narrow jurisdiction are now on the run and arguably degraded in their 
capabilities, the fact remains that they still pose a national security 
threat to the United States. As such, the current AUMF is in the 
process of becoming obsolete; but unless and until this enemy no longer 
poses a substantial national security threat to our country, the 
current AUMF should not be repealed or replaced.
    That said, other transnational terrorist groups may pose a 
substantial national security threat to the United States. The looser 
the affiliation they have with al Qaeda and those responsible for 
September 11, the more difficult it is to shoehorn them into the 
existing AUMF. As such, Congress has the opportunity to assess what 
threat, if any, they pose to our national security, and if substantial, 
the obligation to craft appropriate legislation to confront the threat.
    I commend the committee for their work in this area.
    Thank you for inviting me to testify and for this committee's 
leadership on these tough issues. The nation's security is a sacred 
duty, and we can and must balance security with personal liberties and 
the utmost respect for the rule of law.
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Foundation or its board of trustees.

    Chairman Levin. We thank you very much, Mr. Stimson. We 
thank you all.
    Mr. Stimson has laid out the limits inside AUMF on its use, 
and I am wondering whether, Ms. Brooks, you agree with those 
limits.
    Ms. Brooks. I agree that those are the limits in the AUMF 
on its face. I think that there are a couple of separate 
questions. One is there is some ambiguity, I think, in the AUMF 
as to congressional intent which I do not think can be resolved 
by reference to the language itself. So I do not think my 
former colleagues from the Obama administration are saying 
anything implausible at all when they say that it could be 
construed to provide precisely the authorities they interpreted 
it as providing. That is why, in a way, I suggested that this 
is a policy decision for you as much as anything else. It is a 
question of: do you want them to have such potentially open-
ended authorities? I also should emphasize I have enormous 
respect for their good faith and the great care that they take 
in their decisions, but I think that is a separate question.
    Chairman Levin. I agree, but basically you do not disagree 
with the statement of Mr. Stimson that there are limits on the 
face of the AUMF?
    Ms. Brooks. I believe there are limits, and I believe that 
that was Congress' intent.
    Chairman Levin. Good, that is good.
    The question of co-belligerents: under the law of war, for 
co-belligerents to be included in who the target or who the 
named source of attack is, they must, as I understand it, join 
with the named belligerent and that they must also be 
participating in an attack on the United States. Would you 
agree with that, Mr. Roth?
    Mr. Roth. Yes, but I would add one other thing which I 
think is critical here, which is that the original belligerent 
has to still exist.
    Chairman Levin. The original?
    Mr. Roth. The original belligerent has to still exist.
    Chairman Levin. Right.
    Mr. Roth. I think we are very much facing the prospect of 
al Qaeda central being decimated. You cannot then have co-
belligerents. That is a different authorization.
    Chairman Levin. But as long as al Qaeda exists, I think you 
all would probably agree that the co-belligerent doctrine would 
require that co-belligerent join in an attack on the United 
States.
    Mr. Roth. Yes.
    Chairman Levin. That gets to the point of al Nusra. By the 
way, I think I misspoke in suggesting that al Nusra then might 
come under that doctrine because unless they joined in an 
attack on the United States, I do not think that. So I will 
just confess error on that because I think I was too sloppy in 
terms of my statement about al Nusra, and we will let Senator 
Kaine comment if he wishes later on.
    The next question I have is the 10- to 20-year reference 
that we heard from a member of the first panel. I do not think 
that was a reference to AUMF's life. I think it was a reference 
to how long that particular witness thought we would be facing 
the kind of belligerency which he described. So I will just say 
that in clarification of what I believe was the statement.
    Let me ask now about the question of U.S. persons and 
whether or not the law of armed conflict requires a different 
decisionmaking process or different standards be applied when 
targeting a U.S. person. If a U.S. person joins an enemy force, 
is that person subject to being designated an enemy combatant? 
Let me start with that, Mr. Corn?
    Mr. Corn. I think the answer is clearly yes.
    Chairman Levin. All right. Does anyone disagree with that? 
No. Everyone shakes their head no.
    I want to get to this due process issue in the couple of 
minutes I have left. Assume that there is strong evidence that 
another attack takes place through the air and that one of the 
three planes attacking us has already hit a target in the 
United States. It is clear from the evidence that this is an al 
Qaeda attack on us with three small planes. It is also clear 
that the second and third planes are piloted by U.S. citizens, 
and strong evidence, however, is that they are part of an 
attack by al Qaeda on us. Somehow or other, they get into U.S. 
airspace.
    Let me ask you, Mr. Stimson. I will start with you on this 
one. Can the Air Force shoot that plane down?
    Mr. Stimson. In the fog of war where information is always 
imperfect, under your hypothetical it is entirely likely that 
the President may decide that that is necessary.
    Chairman Levin. Without due process for those Americans on 
board?
    Mr. Stimson. Without ex ante judicial process, but process 
within the executive branch under the exigencies of inherent 
self-defense.
    Chairman Levin. But you would say that there does not need 
to then be a judicial proceeding before that plane could be 
shot down?
    Mr. Stimson. Number one, there may not be any court you 
could even go to to get a judicial process, but second, I think 
time alone would prevent your ability to go to court.
    Chairman Levin. Does anyone think that those Americans on 
that plane that are piloting that plane under the hypothetical 
I gave you are entitled to due process? Does anybody think 
that? Mr. Corn?
    Mr. Corn. I think they are entitled to due process. I think 
it begs the question what process is due.
    Chairman Levin. Okay. Due process in the ordinary sense of 
the term.
    Mr. Corn. No, not in the ordinary sense of having to go get 
a warrant or a judicial authorization. Furthermore, I do not 
think a police officer would be required to do that under that 
exigency even in peacetime.
    Chairman Levin. I agree with you, but I am talking about 
the military. Does anybody think the military here has to 
provide any due process under normal definition? Mr. Roth?
    Mr. Roth. I think it is important to say that the rules 
governing the military and the police in the situation of an 
imminent threat to American life are not different in that 
sense. In other words, if an American citizen walked in and 
held a gun to your head, the police could shoot to kill if that 
was the last resort to stop--
    Chairman Levin. I agree, but I am talking about the 
military.
    Mr. Roth. If it was a soldier, he could do the same thing.
    Chairman Levin. So the military can shoot that plane down. 
There is no doubt in anybody's mind about that. Is that 
correct? Okay.
    My time is up. Thank you.
    Senator Inhofe.
    Senator Inhofe. Thank you, Mr. Chairman. I am going to make 
mine very brief. As you well know, I have the senior position 
on the Senate Environment and Public Works Committee, and 
starting in 3 minutes, there is probably one of the most 
controversial nominees coming up for our confirmation and I 
must be there.
    In my opening statement, you guys may not have all been 
here at that time because you are the second panel, I 
confessed, and confession is good for the soul, that I was not 
really firm on either side of this. I wanted to hear, I wanted 
to learn, and I have. I will have to say the testimony has been 
very enlightening to me more so than I think any other hearing 
that we have had.
    Let me say to you, Mr. Roth, that I am coming from a 
prejudiced perspective when I say this, but you helped me make 
up my mind probably more than anyone else did, not that it is 
all made up yet. But I have probably spent as much time looking 
at this asset that we have called Guantanamo Bay as anybody 
else that is up here at this table. While there is not time to 
go into the details, we also look at what is a good deal and 
not a good deal for the American people because we are 
responsible for the expenditure of the money. One of the few 
good deals we have had since 1904, even if you did not like the 
way they operate, would be Guantanamo Bay. It is $4,000 a year 
and about half the time, Castro does not even bill us for it. 
So it is a pretty good deal that we have there.
    I have also looked at the resources that are there, and I 
very strongly disagree with you in terms of the proper use of 
that facility, and it is a resource and an asset that should be 
properly used.
    Mr. Stimson, you were Deputy Assistant Secretary for 
Defense for Detainee Affairs under both Rumsfeld and Gates. Is 
that correct?
    Mr. Stimson. Yes, sir.
    Senator Inhofe. You finalized the overarching DOD 
instruction related to detainees, drafted the Military 
Commission Act of 2006, and republished the Army field manual 
on interrogations.
    Mr. Stimson. It was a team effort, sir, but they were done 
during my time.
    Senator Inhofe. You were involved.
    Mr. Stimson. I was.
    Senator Inhofe. I consider you to be an expert or be very 
knowledgeable certainly.
    Do you agree with Mr. Roth that Guantanamo is an 
``unmitigated disaster''?
    Mr. Stimson. No. I believe that we need to have a place, 
when we are in a state of armed conflict, to detain the enemy. 
I have been somewhat agnostic about the ZIP code of where we 
hold them. I understand that, for example, if we bring them to 
the United States, there may be additional rights and 
privileges that would accrue to them. I also believe that when 
I was in office, President Bush announced that he would very 
much like to close it, and there are now 166 people there 
compared to the 779. But we have expended tremendous resources 
there. So I think even if it was ordered closed tomorrow for 
purposes----
    Senator Inhofe. Mr. Stimson, I would say what we cannot do 
is debate that right now because there also is another problem 
of detention or incarceration in the United States. The very 
nature of a terrorist, his mission is to make other people 
terrorists. I do not want to get into that, although I would 
love to have a hearing on this sometime, Mr. Chairman. But 
nonetheless, you have answered my question.
    How about you, Mr. Corn? From a military perspective, are 
you familiar with the center there?
    Mr. Corn. Yes, Senator.
    Senator Inhofe. Do you agree that it is an unmitigated 
disaster?
    Mr. Corn. I think that characterization is certainly 
overbroad. I think that Guantanamo, because of events that 
occurred there initially, carries with it a connotation of 
overreaching, or maybe inconsistency, with core principles that 
guided our treatment of detainees throughout the history of our 
Armed Forces. I think if the conditions and the standards began 
as they are today, it would not have that imprimatur.
    Senator Inhofe. Okay. Mr. Chairman, I applaud you on this 
panel. It has been very helpful, and I yield back.
    Mr. Roth. Senator, could I just maybe give a brief word?
    Senator Inhofe. Okay. I have a serious problem upstairs on 
the fourth floor, but go ahead.
    Mr. Roth. The reason I say this----
    Senator Inhofe. I was not saying this as critically as 
perhaps it sounded. There just was not time to elaborate.
    Mr. Roth. I understand.
    Senator Inhofe. Go ahead.
    Mr. Roth. My reasoning is this. In the 12 years since 
September 11, there have been about 500 successful prosecutions 
in civilian court of terrorists. There have been two trials in 
Guantanamo, both of which have been reversed, and then five 
guilty pleas. We are spending $1.5 million a year per detainee. 
It is a scar on America's reputation. It is not a sustainable 
situation. That is why I think----
    Senator Inhofe. Again, I do think if we have a hearing on 
this, I will encourage the majority to invite you as a witness.
    Mr. Roth. I appreciate it. Thank you.
    Chairman Levin. Thank you, Senator Inhofe.
    Senator Kaine.
    Senator Kaine. Thank you, Mr. Chairman. This has been a 
great hearing and it has helped me crystallize my thinking a 
bit.
    There is a constitutional ambiguity that goes back to the 
language in Article I and Article II. The Article I language, 
and I think Congress is in Article I, the first article for a 
reason establishes that Congress has that power to declare war, 
and the executive power in Article II talks about the 
President's powers, somewhat undefined but clearly expansive as 
Commander in Chief.
    That somewhat vague line, which I think we have to assume 
was written vaguely intentionally by those who wrote the 
language, and additional political realities to me suggest that 
we have a situation where throughout our history, there has 
often been executive overreach in matters of war and I think 
excessive deference by Congress. I think that those two trends 
are actually perhaps getting more severe for a variety of 
reasons that I do not need to go into.
    In response to a point made by Professor Corn, I strongly 
believe that decisions about targeting, tactics, et cetera are 
for the executive. There should be congressional discussion and 
oversight certainly. But you are right. If we trust our 
military leaders to do what we empower them to do, then we 
should not be making those decisions. So in terms of the 
prosecution of hostilities, I think it is extremely important 
that power be an executive power and that we give broad 
latitude to it.
    But I believe even more strongly that Congress has to 
jealously guard its prerogative to commence hostilities and to 
decide against whom those hostilities will be commenced. So the 
power to declare war is not just who we are in a state of 
hostility, but also a pretty clear definition of who are we 
hostile to. Who is this war to be commenced against? The thing 
about the hearing that has been important for me is getting at 
this notion under the AUMF of who exactly was the AUMF 
authorizing hostilities against.
    There was discussion in the first panel about traditional 
law of war and co-belligerents, and that is a very important 
and fairly longstanding doctrine. Yet, the questions to the 
first panel suggested to me that they viewed associated groups 
under the AUMF as not the same as co-belligerents because they 
acknowledge certain groups as associated groups under the AUMF 
against whom, according to their interpretation, we could take 
action that have not declared any particular hostility to the 
United States. They may have chosen to ally with al Qaeda in 
one theater or another, but they have not declared any 
particular hostility to the United States.
    That is what concerns me, Mr. Chairman, about this. Does 
the AUMF broadly allow associated groups to include groups that 
have popped up long after September 11 who have not yet 
declared hostility to the United States, but get swept into the 
AUMF purely because they have declared an allegiance for some 
reason to al Qaeda? That causes me grave concern about this 
jealous prerogative, against whom are we declaring war, that 
Congress needs to guard.
    So the only real question I have is for each of you, and it 
is great to have so many law professors here at once. Courts 
have validated that associated groups, who had no connection 
with September 11, who popped up after September 11, or in the 
President's words from his State of the Union, have emerged. I 
asked a question to the panel about whether the legal authority 
is clear, insofar as it has been litigated, that groups that 
had no connection with September 11 that have popped up since 
are, in fact, encompassed within the legal framework of the 
AUMF?
    Ms. Brooks. Senator Kaine, I do not think it is clear. I 
would actually refer back to a point that Senator McCain made 
earlier. Most of the litigation on this is related to the scope 
of detention authority in which we have both clear legislation 
and a clear expression of its interpretations of the AUMF by 
the executive branch in court filings. But I would note that, 
as Senator McCain suggested earlier, the power to detain is a 
lesser included power of the power to lawfully target, but the 
power to lawfully target is, obviously, not necessarily an 
included power in the power to detain. I think those are 
distinct issues and should properly be seen as such. But 
anyway, I think that in terms of your question, is there 
clarity from litigation, no.
    Senator Kaine. Professor Corn or others?
    Mr. Corn. I think one thing we have to recognize is that 
even the judicial review of the detention issues, in those 
cases, the courts have shown great deference to the judgments 
of the executive as to who is or who is not properly designated 
as falling under the scope of the AUMF. So even if there are 
judicial decisions that endorse the detention of individuals 
from associated forces, it in many ways is just a ripple effect 
of the executive's determination.
    I tend to disagree with Professor Brooks. I do believe that 
this litigation has basically permitted detention as an element 
of the exercise of the principle of military necessity which is 
invoked through the AUMF which, by implication, would extend to 
targeting as well. So I think you could read those decisions to 
support or to validate the executive judgment of which groups 
fall within this category.
    But ultimately I agree with you, Senator, that Congress 
absolutely does have the prerogative to set limits on the scope 
of the AUMF, who the enemy is, the duration, and the geographic 
scope. I do agree with Professor Brooks, that is really the 
policy question more than the legal question that Congress has 
to work through.
    Mr. Roth. Senator Kaine, if I could. I disagree with Mr. 
Corn in the sense that in an armed conflict, the power to 
detain extends beyond combatants. You can have a security 
threat who may not be a combatant and still be authorized to 
detain them. So the fact that the courts have interpreted the 
AUMF fairly expansively with respect to associated forces to 
allow detention does not necessarily imply the same expansion 
with respect to targeting.
    As to your basic point, logically, of course, a new force 
can join a war later. So if al Qaeda central is fighting along 
and a new force that did not exist 12 years ago joins it, yes, 
that is a co-belligerent. It could be attacked too. But if the 
original belligerent disappears, which I think we are nearing 
the prospect of, the concept of co-belligerency no longer makes 
sense for the purpose of the AUMF. So this expansive view, that 
you can keep adding associated forces, stops working not only 
because they may or may not have joined arms against the United 
States, but also because the original focus of the AUMF, al 
Qaeda, I think is in the process of disappearing.
    Mr. Stimson. Senator, I would just add a couple points. One 
is to your broader first point. I think it is actually very 
helpful, and has proven to be helpful in the last 10 to 12 
years, when Congress does engage, focus, and work with the 
executive branch on these tough issues. I would commend to your 
attention, the committee's attention, the work done by Congress 
on the FISA Amendments Act, the Patriot Act amendments to that, 
the Military Commissions Act of 2009 where there was a 
consensus over time that additional safeguards are needed to be 
put in place. So when you made the point earlier that you would 
very much hope that the administration would come to Congress 
when they were considering kinetic action in Syria, I think 
that is an excellent point.
    Another thing that I would add, is to Senator King's 
comment about the associated forces piece. There has been very 
quietly and methodically a great deal of law made by the DC 
Circuit and the DC District Court in the habeas litigation 
where not only the Bush administration but then the Obama 
administration has, as Professor Brooks pointed out, put forth 
their position that al Qaeda, the Taliban, and associated 
forces and thereby defines them because they have to put 
forward some evidence, consists of X, Y, and Z. The courts have 
actually had to look at that, as courts do, to see whether the 
evidence is there to justify detention. Some decisions have 
resulted in them declaring them to be not enemy combatants. 
Most have upheld that. So I think, even though Congress is 
typically the body that legislates, the courts have had to fill 
in this gap and provide more clarification to those narrow 
definitions.
    Senator Kaine. Thank you, Mr. Chairman.
    Chairman Levin. Thank you very much, Senator Kaine.
    Senator McCain.
    Senator McCain. Thank you.
    If I could just ask the witnesses a series of short 
questions, and then I would like for you to elaborate on your 
answers as you so choose. I will go down, beginning with you, 
Professor Brooks.
    Do you believe that al Qaeda, even though having morphed in 
many respects, is on the increase or decreasing?
    Ms. Brooks. I am only able to evaluate based on what I see 
in the media, obviously. So subject to that caveat, my sense is 
that al Qaeda as such is on the wane, that it has less popular 
support in the Arab and Islamic world, that we have succeeded 
in significantly, words like ``decimating'' have been used by 
the President and the DNI, al Qaeda core. I do believe that it 
has popped up in franchise form elsewhere, but my sense, at 
least from a careful read of the March testimony by DNI 
Clapper, is that the administration, at least publicly, does 
not appear to see an imminent threat to the United States 
coming from any of its offshoots.
    Senator McCain. Mr. Corn?
    Mr. Corn. First off, I would like to qualify my answer by 
acknowledging I do not have access to sensitive information and 
again as a former intelligence officer, I think that would be 
very important.
    But my sense is that al Qaeda, as we know it, is following 
classic insurgent doctrine, which is to recede when pressure is 
against it, regroup, reorganize with a goal of coming back, and 
being able to find other vulnerabilities. So I am reluctant to 
say if it is stronger or weaker. I think it is in a different 
phase of operations now.
    Mr. Goldsmith. I basically agree with the first two 
panelists. I only know what I read in the newspapers. It seems 
like that the core is weakening and that it is popping up in 
other places with an uncertain threat to the United States.
    Senator McCain. Mr. Roth?
    Mr. Roth. I agree. I think the principal threat posed by 
the franchises is actually to local governments, not to the 
United States. There is obviously some threat to the United 
States, but al Qaeda core seems to be pretty decimated.
    Senator McCain. Mr. Stimson?
    Mr. Stimson. I will incorporate by reference the previous 
answers. I do not have access to that information from a 
classified level.
    Senator McCain. Do you believe that the AUMF ought to be 
abandoned, allowed to expire, updated, or replaced?
    Ms. Brooks. If I were in your shoes, Senator, I think I 
would want to take the current AUMF and put a sunset on it with 
the understanding that if the administration does feel that 
there are intense, sustained, ongoing threats, it should come 
back and with some specificity say to you and your colleagues 
here what the threat is, what we know about it at this moment, 
and the scope of authorization that we believe we need to 
successfully combat it.
    Here is a question that I would love to have you pose to 
the Attorney General: what is it that you believe that you need 
to do that you do not believe can be done under your inherent 
Article II powers? There is a policy question, which is a 
separate one. There is the legal question. But it seems to me 
that if what the administration is saying, we believe we ought 
to and can protect the Nation while limiting our use of force 
to prevent imminent threats of attack to the United States, 
then I do not see that the AUMF is needed.
    Senator McCain. Wow. In other words, we should go out and 
kill people and it is really okay? That is a very interesting 
answer.
    Mr. Corn, outright replacement, updating, allowing it to 
expire, or leave it as it is?
    As I said in my statement, I believe it is not necessary to 
update it now. I do not think it would be a terrible thing to 
update it, but I just do not think it is necessary at this 
point.
    Mr. Goldsmith. Senator, I believe that Congress should get 
its hands around what is going on under the AUMF and figure out 
how the AUMF is being used to authorize the executive to use 
force in various countries. I would perhaps, after getting my 
arms around that, require closer collaboration with Congress on 
how the AUMF is updated by the executive through 
interpretation. Only after you figure out what is going on 
under the AUMF, what the nature of the extra-AUMF threats are, 
and whether Article II powers are enough to meet those threats 
can you address legislation for extra-AUMF threats.
    Senator McCain. Thank you.
    Mr. Roth?
    Mr. Roth. Senator, with the U.S. war against the Taliban 
winding down by our choice, with al Qaeda Central decimated by 
the President's view, I think the AUMF is reaching its 
expiration date very quickly, and I would hasten that.
    Your question to Professor Brooks, does that mean we can 
just run out and kill people? No. There are still strict laws 
limiting that, although killing people is sometimes possible. 
To come back to the chairman's example, if there is an imminent 
threat to life and there is----
    Senator McCain. I am not talking imminent threats, Mr. 
Roth. We are all in agreement on imminent threats.
    Mr. Roth. But then if there are other groups that do not 
pose an imminent threat but there is a desire on the 
President's part to use military force against them, he should 
seek congressional authorization rather than using the vague 
terms of the AUMF which are coming to an end.
    Senator McCain. Mr. Stimson?
    Mr. Stimson. I think you keep it as is for now, but at the 
same time, this hearing and others like it need to probe 
exactly what Professor Goldsmith is saying. Figure out whether 
the AUMF is being properly applied and follow the narrow 
strictures as written, whether there are extra-AUMF threats 
that fall outside but need to be addressed by legislation, and 
conduct vigorous oversight.
    Senator McCain. I thank you. My time has expired, Mr. 
Chairman. But, my friends, I suggest you take a trip to the 
region. Al Qaeda is all over Mali. Al Qaeda is in Syria in a 
bigger and bigger way every day. Al Qaeda is in Libya. Al Qaeda 
is morphing all over the entire region, maybe not as they were 
on September 11 and maybe the ``core of al Qaeda has been 
decimated,'' but from my extensive visits to the region, al 
Qaeda is on the march. They have just morphed into a different 
kind of threat.
    Could I just ask yes or no? Close Guantanamo?
    Ms. Brooks. Yes, but it does not address the key point 
which is what do we do, yes for symbolic reasons, but we still 
have the problem.
    Senator McCain. Implicit in my question is that we figure 
out what to do with the detainees that are there.
    Ms. Brooks. Yes.
    Senator McCain. Mr. Corn?
    Mr. Corn. If we figure out what to do with the detainees, 
then yes.
    Senator McCain. My time has expired, but would it not be 
just an act of courage on the part of Congress to find a place 
to put them and designate it? It is not rocket science.
    Mr. Corn. I agree, Senator.
    Senator McCain. Mr. Goldsmith?
    Mr. Goldsmith. Senator, I think that really does turn on 
the alternative in the United States because some people 
confuse closing Guantanamo with releasing military detainees. 
There is also the question whether their conditions of 
confinement will be better or worse in the United States. I 
think probably worse based on all the proposals I have seen. 
But if it truly is a strategic problem and we really can find a 
replacement that would lessen the problem, which I am doubtful 
of, then I would say yes.
    Senator McCain. It is also an image problem and reputation 
problem.
    Mr. Goldsmith. But it might be a reputation problem as well 
if we just transfer 150 people to maximum security prisons in 
the United States. It might not just be the location that is 
the problem. That is what I want to suggest.
    Senator McCain. Good point.
    Mr. Roth?
    Mr. Roth. I agree with that. I think creating ``Guantanamo 
North'' is not the answer. We should prosecute as many as 
possible in regular court and then release the rest. There may 
be some risk involved in that, but there are a lot of people 
around the world who hate the United States who are not 
detained. There is just a group of legacy detainees in 
Guantanamo who happen to be detained and everybody is afraid to 
release them. But I think that their continued detention, as 
the President has pointed out, is at this stage doing more harm 
than good. If they are a real threat, prosecute them. 
Otherwise, I think this continued stain on America's reputation 
is not doing us any good.
    Mr. Stimson. Yes, Senator, I think it should be closed with 
two provisos. One, a very sober, legal, political assessment of 
what additional rights or privileges they would have here in 
the United States, and we could hold them under the law of 
armed conflict. Two, with the very bare understanding that 
closing Guantanamo still will not cause al Qaeda to love us. 
There was no Guantanamo before September 11. There was no 
Guantanamo during the USS Cole bombing.
    Senator McCain. I thank you, Mr. Chairman, and I thank you 
for your indulgence.
    Chairman Levin. Thank you very much, Senator McCain.
    Senator King.
    Senator King. Professor Goldsmith, you were here, I think. 
You heard my line of questioning and discussion with the prior 
panel. Here is my question.
    Clearly we are in a different kind of situation. This is 
not World War II where you have a beginning and end, peace 
treaties, declaration of war, Axis powers, and all those kinds 
of things. It is a kind of twilight struggle with groups that 
are metamorphosing all over the world.
    How do we breathe life into the principle of Congress 
having the power to declare war and the President having the 
power to prosecute it in this kind of new set of circumstances? 
That is the issue that I am struggling with here.
    Mr. Goldsmith. That is a great question, Senator.
    There are many ways to do that. I think that it is 
important that Congress stay closer in touch with how the 
President is prosecuting the war under congressional 
authorizations. One of the things that this hearing has 
revealed is that perhaps the executive branch has an 
interpretation of the AUMF that is interpretation upon 
interpretation, each one legitimate, but with the enemy 
morphing everywhere and with the way we are fighting the war 
changing quite a lot to a more stealth war, that it has taken 
us to a place that is quite different from 12 years ago through 
a legitimate process.
    I do not believe that terminating the AUMF is a good idea. 
I do not think it is feasible frankly. But I do think Congress, 
as I said to Senator McCain, should try to get its hands around 
how the AUMF is being interpreted and whether you agree with 
it. I think there was progress made when Senator Levin said he 
would like to know a list of groups under the AUMF from DOD and 
DOD said it would answer that question. That is extraordinary. 
I do not know what groups DOD thinks is covered by the AUMF. 
Anything we can do to figure out what the executive branch is 
doing under the AUMF and determine whether you think it is 
appropriate to be engaged in war, in those countries, against 
those groups.
    Then there is the question, maybe not for now, but for 
later, if the war against extra-AUMF threats is going to go on 
for decades. There will be a question later about how you deal 
with threats that are not under the AUMF, groups that do 
threaten the United States. I think there needs to be a process 
worked out between Congress and the President for authorizing 
the President to use force under the authorization of Congress.
    I have made a proposal with some co-authors about setting 
up an administrative process inside the executive branch that 
would notify Congress about what groups are actually our 
enemies. Some have characterized that as an expansion of 
warpowers, but I see that as fleshing out who the President 
thinks the enemy is and who the President is going to be using 
force against so that Congress can know and act upon that.
    But let me say figuring out how separation of powers works 
in this new type of war is very tricky. There are many options 
open to Congress, but I feel very strongly that every 12 years 
or so, it is time to engage and figure out whether you agree 
with the scope of the----
    Senator King. Just to pick an arbitrary number.
    Mr. Goldsmith. Yes, sir.
    Senator King. Mr. Stimson, do you have some thoughts on 
this problem?
    Mr. Stimson. No. I would associate myself with Professor 
Goldsmith's comments and only add the point I made to Senator 
Kaine. It seems that there have been certain inflection points 
in the last 12 years where the courts have periodically and 
uncharacteristically, for that matter, engaged in issuing 
opinions with respect to wartime issues, specifically 
detention. But then periodically Congress jumps in and weighs 
in on various counterterrorism and other tools. I think to 
Jack's point, perhaps a 12-year period might be too long.
    Senator King. Thank you.
    Professor Brooks, do you have a thought about how do we 
make this principle that was written 200 years ago work in the 
time of a war that really was not contemplated at that time? I 
happen to think it is an important principle. I want to know 
how to, as I said, breathe life into it.
    Ms. Brooks. I think it is very tough. I guess I would 
emphasize that we actually have a choice of legal frameworks 
for how to deal with the ongoing threat from terrorism, and I 
think everybody here is in complete agreement that we want to 
make sure that the United States and the executive branch has 
the authority to protect us with military force if necessary 
against imminent attack. No question, everybody is in 
agreement.
    I think there is a strategic and a legal question and they 
are interrelated. One is, what is the best way to do that in 
the long run? Does that mean to limit the use of military force 
to the really imminent, big threats, or is that to go after 
everybody who is an affiliate of an affiliate of an affiliate 
because we think that is the smart way to fight terrorism in 
the long run? That is the strategic question.
    Then the legal question, which I think is frankly driven by 
how we answer that first question. If we think it is the 
former, if we think that the legal framework that permits us to 
use force against imminent threats but sort of restricts it, 
unless something new emerges, then we should not be in the 
armed conflict framework. We should be in the self-defense and 
inherent presidential powers framework, and Congress can do 
that by taking away the AUMF when the war in Afghanistan ends, 
for instance, by sunsetting it or----
    Senator King. The problem is, though, with a threat like 
terrorism where it comes up periodically over a long period of 
time, self-defense could be used to justify what amounts to a--
--
    Ms. Brooks. I am not sure I agree with that, and I think 
this is the question. It seems to me----
    Senator King. I am not sure I do either, but that is what I 
see.
    Ms. Brooks. I think I see the self-defense framework as 
more restrictive than the armed conflict framework. The self-
defense framework requires essentially the satisfying of a 
higher threshold of imminence and gravity before force is used 
than the armed conflict framework which says you do not need to 
have the threat be imminent in the normal sense. You can target 
people based on their status, not their activities, and so 
forth.
    So to me authorization to use force in an ongoing armed 
conflict against an undefined enemy amounts to far fewer 
constraints and far less ability for Congress to exercise 
oversight than saying, no, if there is an imminent threat, use 
force. Here I very much agree with what several of my 
colleagues on this panel have said. If the nature of al Qaeda 
core on September 11, 2001, does emerge, then by all means 
return to Congress and request a narrowly tailored 
authorization to use force to address that.
    My husband is an Active Duty Army officer, and he has to go 
where he is sent. It sure would give me a lot more comfort to 
feel like where he is sent, whether I agree with the policy or 
not, that he is being sent wherever in harm's way only if both 
Congress and the executive branch agree and have seriously 
thought about the need for that. Right now, I think we have 
tilted a little too much towards just the executive branch.
    Senator King. I agree and I think what you just 
characterized was exactly the way the Framers thought about it.
    Thank you all very much.
    Mr. Chairman, thank you. I think this has been a very 
important panel and day's hearing, and thank you for setting it 
up.
    Chairman Levin. Thank you very much for your presence. 
Those of us who were here today I think gained an awful lot 
from this hearing.
    I want to read something that I think very clearly gets 
into the issue which many of us have raised and the panels have 
addressed. It will take me about 2 minutes, but I think it 
really encapsulates something. It is part of Jeh Johnson's 
speech.
    He says the AUMF, the statutory authorization from 2001, is 
not open-ended. It does not authorize military force against 
anyone the executive labels a terrorist. Rather, it encompasses 
only those groups or people with a link to the terrorist 
attacks on September 11 or associated forces.
    Known as the concept of an associated force, an open-ended 
one, as some suggest, this concept too has been upheld by the 
courts in the detention context, and it is based on the well-
established concept of co-belligerency in the law of war. The 
concept has become more relevant over time as al Qaeda has, 
over the last 10 years, become more decentralized and relies 
more on associates to carry out its terrorist aims.
    An ``associated force,'' as we interpret the phrase, has 
two characteristics to it: one, an organized armed group that 
has entered the fight alongside al Qaeda something we talked 
about before and I was a bit sloppy on when I talked about al 
Nusra, and two, is a co-belligerent with al Qaeda in 
hostilities against the United States or its coalition 
partners.
    In other words, the group must not only be aligned with al 
Qaeda, it must have also entered the fight against the United 
States or its coalition partners. Thus, an associated force is 
not any terrorist group in the world that merely embraces the 
al Qaeda ideology. More is required before we draw the legal 
conclusion that the group fits within the statutory AUMF passed 
by Congress in 2001.
    Now, I view that as an extremely careful, thoughtful 
description of the AUMF and what it authorizes and what it does 
not authorize. I will ask our panel and then I will give my 
colleagues a chance also to weigh in, if they want to, further. 
This was a long speech of his, and I only picked three 
paragraphs but I think it really addresses the concerns that 
are raised here today.
    Let me go down the line. Ms. Brooks, do you agree with 
that?
    Ms. Brooks. I think the devil is in the details. I am not 
sure what it means to join the fight or fight alongside outside 
of hot battlefields. I would like to see some clarification 
from the administration on what it thinks that means.
    I would also like to know some of the legal and factual 
reasoning that gets us from that to, for instance, strikes 
against Somalia's al Shabaab because I do not see how they 
could be said to satisfy those criteria.
    Chairman Levin. Well, no, that is different. I am talking 
about the criteria. Do you agree with not whether al Shabaab is 
listed or meets this criteria? Do you agree with this criteria 
in general?
    Ms. Brooks. I think in this context the criteria are 
sufficiently vague as to in practice, as we see with the 
targeting of al Shabaab, become virtually meaningless.
    Chairman Levin. So this is too vague for you.
    Mr. Corn?
    Mr. Corn. I agree with it. I would also like to see more 
information on how these decisions are made. I do not think I 
should because I do not have access to classified information 
and I think that one of the great challenges here is you are 
dealing with an opponent that follows an asymmetric pattern of 
behavior, and if you disclose this information publicly, you 
are basically signaling to the enemy exactly what the criteria 
are that the United States uses to designate a group of co-
belligerents which could have a negative consequence.
    I think what that speech reflects implicitly is that this 
is not a characterization that is made lightly, that it is 
based on an intense focus on all available intelligence, and I 
think that is the function of the commander in chief and his 
subordinate officers when you are engaged in a conflict.
    Chairman Levin. To the extent that it is possible to 
describe in words what the AUMF does in terms of its authority, 
in terms of the way it limits it, do you agree with this 
description?
    Mr. Corn. Absolutely.
    Chairman Levin. Mr. Goldsmith?
    Mr. Goldsmith. Yes, sir, I think it is a perfect 
description and brief of how the AUMF should be interpreted. 
But I have to say my confidence in what it means was shaken a 
little bit today by the first panel's scope and the breadth in 
which they thought the President was authorized to use force 
against groups outside of countries that we, at least in the 
public, know we are operating in. So with that caveat, yes, I 
do think it----
    Chairman Levin. I did not ask the first panel if they 
agreed with this. I should have.
    Mr. Goldsmith. I am sure that they do. I think that is the 
administration's official position, and I am sure those are the 
principles that they are applying.
    Chairman Levin. But you agree with those principles.
    Mr. Goldsmith. Yes, sir.
    Chairman Levin. You may not agree with the application.
    Mr. Goldsmith. I thought I knew what the application meant, 
but I am less confident now after this morning's testimony.
    Chairman Levin. In terms of application, but in terms of 
the principles, as laid out here, you like those principles.
    Mr. Goldsmith. Yes, sir.
    Chairman Levin. Thank you.
    Mr. Roth?
    Mr. Roth. I think we are all saying roughly the same thing. 
As a statement of principle or as a statement of the law, that 
is fine. We all have real qualms about how it is being applied.
    As for Congress' role, which is what this is really about 
here, my recommendation would be to move as quickly as possible 
from a situation where the administration on its own is 
interpreting this in ways that are giving a lot of us pause, to 
a situation where they have to ask congressional approval for 
particular expansions.
    That is why I think that retiring the AUMF as quickly as 
possible, not replacing it with a blank check where some 
administrative procedure determines this, but rather insisting 
that the executive ask Congress if particular groups are to be 
added to a list of groups with which the United States is at 
war. That would be the way to proceed. That would be the only 
way that Congress would have a meaningful role. Otherwise, we 
are all going to be sitting here guessing what facts are 
justifying seemingly strained interpretations of that principle 
by the administration.
    Chairman Levin. In terms of a statement of principles, do 
you agree with the principles?
    Mr. Roth. The principles are fine, yes.
    Chairman Levin. Thank you.
    Mr. Stimson?
    Mr. Stimson. Senator, I agree with the language you read 
from Jeh's speech. I actually think he gave that over at The 
Heritage Foundation about a year and a half ago.
    I would say that this administration, especially in the 
first term, has done a fairly good job with some high-level 
keynote speeches on various topics like the AUMF. It probably 
would have served them well had they done more with respect to 
the drones issue early on and it would not have caught up to 
them the way it did. I would encourage the administration to 
continue, to the extent practicable, to give these high-level 
speeches at key venues.
    Chairman Levin. Thank you.
    Senator Kaine.
    Senator Kaine. Mr. Chair, while I might agree with those 
principles as stated, if I heard you right, I do not think that 
is a fair characterization of the congressional language in the 
AUMF. I will tell you why. Again, I just heard it. I did not 
read it.
    Under the principle as stated in those paragraphs, a group 
that popped up long after September 11 and had no role, 
therefore, on September 11 that decided to join the fight with 
al Qaeda and joined it not against the United States, but 
against a coalition partner----
    Chairman Levin. It says or its coalition partners.
    Senator Kaine.--the AUMF would allow us to commence 
hostilities against a coalition partner, to commence 
hostilities against a group that had no connection to September 
11 and that had no intention of engaging in hostilities against 
the United States. Again, while we might have that discussion 
and as Congress decides what should be done, if that is in fact 
the administration's interpretation of the AUMF, it would allow 
the commencement of war, absent additional congressional 
approval, in a way that I think was clearly not contemplated by 
Congress when it passed the AUMF.
    Chairman Levin. Putting aside that coalition partner 
reference----
    Senator Kaine. The rest of it I think is a fair statement 
of what the AUMF attempted to do.
    Chairman Levin. That is interesting.
    Mr. Roth. Senator, if I could answer. I missed that and I 
think you are absolutely right to bring that up. I think we 
tend to think of coalition partner as a NATO partner or a 
government for whom there is a treaty obligation to come to 
their defense. But I do not think it is meant that narrowly 
here. It may well mean Yemen or Mali, in which case it does 
under the administration's----
    Chairman Levin. I do not think that they would fit any 
coalition----
    Mr. Roth. I do not know. In other words, the governments 
with whom we are fighting. So it is worth asking that question.
    Chairman Levin. I think at the time this was given, it is 
the coalition referred to as probably the Afghanistan 
coalition.
    Mr. Stimson. Probably so.
    Chairman Levin. Probably. So in that context, it may or may 
not have satisfied a very legitimate concern that Senator Kaine 
has just raised. It may or may not satisfy it if it is 
referring to that coalition in Afghanistan.
    Senator King, do you want to close off?
    Senator King. I am more concerned less about the specifics 
of the AUMF or its continued vitality than with the underlying 
principle of how we deal with the separation of powers issue on 
this important subject. The AUMF was a way of dealing with it. 
My concern after this morning's hearing was that it was being 
interpreted in such a way that essentially it had no limits. I 
take the point that you made, and in fact, that exact language 
was in the prepared testimony of one of the witnesses this 
morning. But I am still troubled by the open-ended nature of 
the authorization and my question to Professor Goldsmith. How 
do we deal with this issue of Congress having the 
responsibility to declare war in a time where there is no clear 
beginning/ending, and especially as you interpret it?
    So, anyway, I really appreciate what we have discussed here 
this morning, and I think it bears more discussion. My concern 
is not about fighting terrorism. My concern is about open-ended 
authority to the executive to wage war and send our people into 
harm's way. That is exactly what the Framers were worried about 
and that is why they gave that power to Congress.
    Chairman Levin. I think the fear of open-ended authority is 
one that hopefully all of us share and I think that is probably 
the case because it is a very legitimate concern.
    We thank you all. You have been a great panel. You have 
really helped us.
    We will stand adjourned.
    [Questions for the record with answers supplied follow:]
               Questions Submitted by Senator Mark Udall
                authorization for use of military force
    1. Senator Udall. Secretary Sheehan, in your testimony you 
clarified that with regard to ``the authority to put boots-on-the-
ground in Yemen or Congo,'' you were ``not necessarily referring to 
that under the 2001 Authorization for Use of Military Force (AUMF). 
Certainly the President has military personnel deployed all over the 
world today, in probably over 70 to 80 countries, and that authority is 
not always under AUMF. So I just want to clarify for the record that we 
weren't talking about all that authority subject to AUMF.'' Can you 
please provide a very specific answer to this question: what authority 
or authorities, other than the AUMF, were you referring to in your 
testimony?
    Mr. Sheehan. I was referring to several security cooperation 
authorities under which U.S. military forces are engaged in foreign 
countries with foreign military and civilian partners. For example, the 
Combatant Commander's Initiative Fund (under title 10, U.S.C., section 
166a) may be used for joint overseas exercises to maintain the 
proficiency of U.S. military forces and build the capacity of foreign 
partners. DOD may also provide transportation of humanitarian relief 
and for other humanitarian purposes worldwide (under title 10, U.S.C., 
section 2561).
    In the realm of Special Operations Forces (SOF), the Joint Combined 
Exchange Training authority (title 10, U.S.C., section 2011) permits 
DOD to fund deployments to foreign countries of SOF for training with 
Armed Forces and other security forces of friendly foreign countries. 
SOF also deploy to provide counternarcotics training to partner nation 
forces, improving partner nation skills against illegal narcotics and 
other related illicit trafficking (under section 1004 of the National 
Defense Authorization Act (NDAA) for Fiscal Year 1991, as amended).
    Subject to appropriate approval processes, these and other efforts 
taken together enable DOD to engage with the military forces of 
numerous partner nations.
    I note that a deployment could be subject to the requirements of 
the War Powers Resolution, depending on the nature of the deployment, 
including whether the forces are equipped for combat and whether they 
are deployed into hostilities or situations where imminent involvement 
in hostilities is clearly indicated by the circumstances.

    2. Senator Udall. Secretary Sheehan, under what authority or 
authorities does the President and could the President, deploy military 
personnel, to include Special Operations Forces, all over the world 
today?
    Mr. Sheehan. In addition to the President's authority as Commander 
in Chief, to order the deployment of military forces, there are several 
security cooperation authorities under which U.S. military forces are 
engaged in foreign countries with foreign military and civilian 
partners. For example, the Combatant Commander's Initiative Fund (under 
title 10, U.S.C., section 166a) may be used for joint overseas 
exercises to maintain the proficiency of U.S. military forces and build 
the capacity of foreign partners. DOD may also provide transportation 
of humanitarian relief and for other humanitarian purposes worldwide 
(under title 10, U.S.C., section 2561).
    In the realm of SOF, the Joint Combined Exchange Training authority 
(title 10, U.S.C., section 2011) permits DOD to fund deployments to 
foreign countries of SOF for training with armed forces and other 
security forces of friendly foreign countries. SOF also deploy to 
provide counternarcotics training to partner nation forces, improving 
partner nation skills against illegal narcotics and other related 
illicit trafficking (under section 1004 of the NDAA for Fiscal Year 
1991, as amended).
    Subject to appropriate approval processes, these efforts taken 
together enable DOD to engage with the military forces of numerous 
partner nations.
    I note that a deployment could be subject to the requirements of 
the War Powers Resolution, depending on the nature of the deployment, 
including whether the forces are equipped for combat and whether they 
are deployed into hostilities or situations where imminent involvement 
in hostilities is clearly indicated by the circumstances.
                                 ______
                                 
           Questions Submitted by Senator Angus S. King, Jr.
                authorization for use of military force
    3. Senator King. Secretary Sheehan, in your testimony you stated 
that with regard to the ``authority to put boots-on-the-ground in Yemen 
or Congo,'' you were, ``not necessarily referring to that under the 
2001 AUMF. Certainly the President has military personnel deployed all 
over the world today, in probably over 70 to 80 countries, and that 
authority is not always under AUMF. So I just want to clarify for the 
record that we weren't talking about all that authority subject to 
AUMF.'' What authority, other than the AUMF, were you referring to in 
your testimony?
    Mr. Sheehan. I was referring to several security cooperation 
authorities under which U.S. military forces are engaged in foreign 
countries with foreign military and civilian partners. For example, the 
Combatant Commander's Initiative Fund (under title 10, U.S.C., section 
166a) may be used for joint overseas exercises to maintain the 
proficiency of U.S. military forces and build the capacity of foreign 
partners. DOD may also provide transportation of humanitarian relief 
and for other humanitarian purposes worldwide (under title 10, U.S.C., 
section 2561).
    In the realm of SOF, the Joint Combined Exchange Training authority 
(title 10, U.S.C., section 2011) permits DOD to fund deployments to 
foreign countries of SOF for training with Armed Forces and other 
security forces of friendly foreign countries. SOF also deploy to 
provide counternarcotics training to partner nation forces, improving 
partner nation skills against illegal narcotics and other related 
illicit trafficking (under section 1004 of the NDAA for Fiscal Year 
1991, as amended).
    Subject to appropriate approval processes, these and other efforts 
taken together enable DOD to engage with the military forces of 
numerous partner nations.
    I note that a deployment could be subject to the requirements of 
the War Powers Resolution, depending on the nature of the deployment, 
including whether the forces are equipped for combat and whether they 
are deployed into hostilities or situations where imminent involvement 
in hostilities is clearly indicated by the circumstances.

    4. Senator King. Secretary Sheehan, under what authority does the 
President, and could the President, deploy military personnel all over 
the world today?
    Mr. Sheehan. In addition to the President's authority as Commander 
in Chief, to order the deployment of military forces, there are several 
security cooperation authorities under which U.S. military forces are 
engaged in foreign countries with foreign military and civilian 
partners. For example, the Combatant Commander's Initiative Fund (under 
title 10, U.S.C., section 166a) may be used for joint overseas 
exercises to maintain the proficiency of U.S. military forces and build 
the capacity of foreign partners. DOD may also provide transportation 
of humanitarian relief and for other humanitarian purposes worldwide 
(under title 10, U.S.C., section 2561).
    In the realm of SOF, the Joint Combined Exchange Training authority 
(title 10, U.S.C., section 2011) permits DOD to fund deployments to 
foreign countries of SOF for training with armed forces and other 
security forces of friendly foreign countries. SOF also deploy to 
provide counternarcotics training to partner nation forces, improving 
partner nation skills against illegal narcotics and other related 
illicit trafficking (under section 1004 of the NDAA for Fiscal Year 
1991, as amended).
    Subject to appropriate approval processes, these efforts taken 
together enable DOD to engage with the military forces of numerous 
partner nations.
    I note that a deployment could be subject to the requirements of 
the War Powers Resolution, depending on the nature of the deployment, 
including whether the forces are equipped for combat and whether they 
are deployed into hostilities or situations where imminent involvement 
in hostilities is clearly indicated by the circumstances.
                                 ______
                                 
             Questions Submitted by Senator Kelly A. Ayotte
                            military custody
    5. Senator Ayotte. Mr. Taylor, based on your interpretation of 
current laws and authorities, if he had chosen to do so, could 
President Obama have designated Dzhokhar Tsarnaev an enemy combatant 
and placed him in military custody for several weeks or months for 
interrogation and intelligence collection and then placed him back in 
our civil justice system for trial as a U.S. citizen?
    Mr. Taylor. We are aware of no information that indicates that 
Dzhokar Tsamaev is an ``enemy combatant'' subject to military detention 
under the AUMF. The evidence we possess does not indicate that he was 
``part of'' or ``substantially supporting'' al Qaeda, the Taliban, or 
associated forces.

    6. Senator Ayotte. Mr. Taylor, under current law, once placed in 
military custody, would Tsarnaev have been entitled to file a habeas 
petition in a civilian court challenging his detention as an enemy 
combatant?
    Mr. Taylor. Yes. The Supreme Court in Hamdi v. Rumsfeld determined, 
among other things, that the Constitution requires that a U.S. citizen-
detainee receive due process sufficient to challenge his classification 
as an enemy combatant, and held that ``[a]bsent suspension of the writ 
[of habeas corpus] by Congress, a citizen detained as an enemy 
combatant is entitled to this process.'' 542 U.S. 507, 537 (2004).

                          detention authority
    7. Senator Ayotte. Mr. Taylor, in your joint statement you say that 
the, ``United States remains in a state of armed conflict with al 
Qaeda, the Taliban, and associated forces.'' You also state that, 
``existing authorities are adequate for this armed conflict.'' Are 
existing authorities adequate for the detention operations that are 
part of this armed conflict?
    Mr. Taylor. The 2001 AUMF implicitly authorizes the detention of 
enemy combatants in the armed conflict against al Qaeda, the Taliban, 
and associated forces. This interpretation has been upheld by the 
courts in habeas corpus litigation and reaffirmed by Congress in 
section 1021 of the NDAA for Fiscal Year 2012. This detention authority 
is adequate for the detention operations that are part of the ongoing 
armed conflict.

    8. Senator Ayotte. Mr. Taylor, what authorities does the 
administration rely on to capture and detain foreign members of al 
Qaeda and associated forces at Guantanamo?
    Mr. Taylor. The 2001 AUMF implicitly authorizes the capture and 
detention of enemy combatants in the armed conflict against al Qaeda, 
the Taliban, and associated forces. This interpretation has been upheld 
by the courts in habeas corpus litigation and reaffirmed by Congress in 
section 1021 of the NDAA for Fiscal Year 2012.

    9. Senator Ayotte. Mr. Taylor, will these authorities to conduct 
detainee operations at Guantanamo derived from the international law of 
war and U.S. law, change when the combat operations end in Afghanistan 
or when U.S. troops eventually leave Afghanistan?
    Mr. Taylor. There will eventually come a point when our enemy in 
this armed conflict is so defeated that we are no longer in an ongoing 
armed conflict. At that point we will need to face the difficult 
questions of what to do with those who still remain in U.S. military 
detention without a criminal conviction and sentence. But that is a 
point we have not yet reached, and the end of the U.S. combat role in 
Afghanistan will not necessarily mark that point.

    10. Senator Ayotte. Mr. Taylor, will the authority to detain and 
interrogate foreign members of al Qaeda and associated forces at 
Guantanamo remain unchanged after combat operations end in Afghanistan 
or U.S. troops leave Afghanistan?
    Mr. Taylor. There will eventually come a point when our enemy in 
this armed conflict is so defeated that we are no longer in an ongoing 
armed conflict. At that point we will need to face the difficult 
questions of what to do with those who still remain in U.S. military 
detention without a criminal conviction and sentence. But that is a 
point we have not yet reached, and the end of the U.S. combat role in 
Afghanistan will not necessarily mark that point.

                        lack of detention policy
    11. Senator Ayotte. General Nagata, based on your role as the 
Deputy Director for Special Operations and Counterterrorism (J-37) on 
the Joint Staff, if we captured Ayman al Zawahiri tonight, can you tell 
me where we would detain him for long-term law of war detention and 
interrogation?
    General Nagata. If we captured Ayman al Zawahiri, the location and 
circumstances of his detention would be dependent, in part, on the 
circumstances of his capture. If it were determined that law of war 
detention and interrogation were appropriate, as opposed to detention 
under criminal law (and law enforcement interrogation), the Department 
of Defense (DOD) has a number of options that would be decided by the 
President after receiving a recommendation by the senior members of the 
President's national security team.

         value of military custody for intelligence collection
    12. Senator Ayotte. General Nagata, has intelligence collected from 
members of al Qaeda and associated forces held in military custody 
provided intelligence that we have used to prevent attacks, protect 
Americans, or help us capture other terrorists?
    General Nagata. [Deleted.]

    13. Senator Ayotte. Secretary Sheehan and General Nagata, did we 
gather intelligence from detainees at Guantanamo that helped us find 
Osama bin Laden?
    Mr. Sheehan. Yes. Intelligence gathered from detainees at 
Guantanamo improved our understanding of the al Qaeda organization, 
which was helpful in our efforts to find Osama bin Laden.
    General Nagata. [Deleted.]

    14. Senator Ayotte. Secretary Sheehan and General Nagata, months or 
years later, did we go back to detainees at Guantanamo and ask 
subsequent questions that were helpful in finding Osama bin Laden?
    Mr. Sheehan. Yes. DOD asked subsequent questions of detainees, the 
answers to which were helpful in our efforts to find Osama bin Laden.
    General Nagata. [Deleted.]

    15. Senator Ayotte. Mr. Taylor, Secretary Sheehan, General Nagata, 
and General Gross, what is the primary purpose of military custody for 
members of al Qaeda and associated forces?
    Mr. Taylor. As the Supreme Court recognized in Hamdi v. Rumsfeld, 
542 U.S. 507, 518-19 (2004), detention to prevent a combatant's return 
to the battlefield and from taking up arms once again is a long-
recognized and fundamental incident of waging war. It is not a punitive 
measure. It is our preference to capture suspected terrorists whenever 
feasible so that, among other reasons, we can gather valuable 
intelligence. Capture and detention of enemy belligerents are 
traditional military practices and part and parcel of armed conflict.
    Mr. Sheehan. The purpose of military detention is to keep enemy 
combatants off the battlefield. Detention facilitates the collection of 
intelligence that could prevent future terrorist attacks.
    General Nagata. Detention serves a number of purposes, including 
providing intelligence on enemy operations and in removing enemy forces 
from the battlefield so that they are prevented from taking up arms 
again.
    General Gross. As the Supreme Court recognized in Hamdi v. 
Rumsfeld, 542 U.S. 507, 518-19 (2004), detention to prevent a 
combatant's return to the battlefield and from taking up arms once 
again is a long-recognized and fundamental incident of waging war. It 
is not a punitive measure. It is our preference to capture suspected 
terrorists whenever feasible--among other reasons, so that we can 
gather valuable intelligence that we might not be able to obtain any 
other way. In fact, the members of al Qaeda that we or other nations 
have captured have been one of our greatest sources of information 
about al Qaeda, its plans, and its intentions. Once in U.S. custody, we 
often can prosecute them in our Federal courts or reformed military 
commissions--both of which are used for gathering intelligence and 
preventing further terrorist attacks. Viewed within the context of 
conventional armed conflict, as they should be, capture and detention 
by the military are both lawful and necessary practices.

                 targeted killing and detention policy
    16. Senator Ayotte. Mr. Taylor, if the administration believes that 
it has the authority to kill a U.S. citizen with a drone who is a 
member of al Qaeda or associated forces, does the administration also 
believe it has the authority to detain a U.S. citizen who is a member 
of al Qaeda or associated forces in military custody for purposes of 
law of war interrogation and intelligence collection?
    Mr. Taylor. It is our preference to capture suspected terrorists 
whenever feasible so that, among other reasons, we can gather valuable 
intelligence. In Hamdi v. Rumsfeld, the Supreme Court held that the 
AUMF authorized the detention of individuals who are part of or 
supporting enemy forces, and the DC Circuit has repeatedly endorsed the 
administration's interpretation of the scope of its detention authority 
under the AUMF in the ongoing habeas litigation. All three branches of 
government agree that the administration may hold in military custody 
individuals who are ``part of' or ``substantially support'' al Qaeda, 
the Taliban, or associated forces. The Supreme Court stated in Hamdi 
that there is ``no bar to this Nation's holding one of its own citizens 
as an enemy combatant.'' Hamdi, 542 U.S. 507, 519 (U.S. 2004). A U.S. 
citizen, no matter where held, would have the right to seek a writ of 
habeas corpus to test the legality of his detention.
    Hamdi concerned an individual initially captured by the military in 
Afghanistan. Law of war detention of U.S. citizen terrorist suspects 
apprehended in the United States, however, would present serious legal 
and policy questions. With exceptions for individuals like Ali al-Marri 
and Jose Padilla, both of whom were apprehended during the previous 
administration, the usual practice of the U.S. Government (under both 
the current and prior administrations) has been to arrest and detain 
under Federal criminal law all U.S. citizen terrorist suspects who are 
apprehended in the United States.

    17. Senator Ayotte. Mr. Taylor, from where does the authority come 
to detain U.S. citizens in military custody for purposes of law of war 
detention?
    Mr. Taylor. Title 18 U.S.C. Sec. 4001(a) provides that ``[n]o 
citizen shall be imprisoned or otherwise detained by the United States 
except pursuant to an Act of Congress.'' With respect to the conflict 
against al Qaeda, the Taliban, and associated forces, the Supreme Court 
has held that the AUMF, enacted on September 18, 2001, grants authority 
within the meaning of Sec. 4001(a) to detain certain U.S. citizens in 
military custody for purposes of law of war detention. Hamdi v. 
Rumsfeld, 542 U.S. 507, 517 (2004) (plurality opinion); accord Hamdi v. 
Rumsfeld, 542 U.S. 507, 587 (2004) (Thomas, J., dissenting). President 
Obama, in signing the NDAA for Fiscal Year 2012, stated unequivocally 
that the Obama administration will not authorize the indefinite 
military detention without trial of U.S. citizens.

    18. Senator Ayotte. Mr. Taylor, since September 11, has the U.S. 
Government detained members of al Qaeda or associated forces who are 
U.S. citizens in law of war military custody for purposes of 
interrogation and intelligence collection?
    Mr. Taylor. There have been occasions since September 11, 2001, 
when U.S. citizens have been detained in military custody under the law 
of war and interrogated for purposes of intelligence collection. Any 
detention under the law of war must comply with the Constitution, the 
laws of war, and all other applicable law. President Obama, in signing 
the NDAA for Fiscal Year 2012, stated unequivocally that the Obama 
administration will not authorize the indefinite military detention 
without trial of American citizens.

    [Whereupon, at 12:44 p.m., the committee adjourned.]

                                 
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