[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
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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\
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\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
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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\
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\5\ So called ``signature strikes.''
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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\
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\10\ http://opiniojuris.org/wp-content/uploads/2013-5-7-corrected-
koh-oxford-union-speech-as-delivered.pdf
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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\
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\11\ http://avalon.law.yale.edu/19th--century/lieber.asp
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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\
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\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\
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\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.
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\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.
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\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.
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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.
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\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:
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\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\
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\6\ Ibid. at 6.
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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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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.]