[Senate Hearing 113-459]
[From the U.S. Government Publishing Office]





                                                        S. Hrg. 113-459

   AUTHORIZATION FOR USE OF MILITARY FORCE AFTER IRAQ AND AFGHANISTAN

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

                                HEARING

                               BEFORE THE



                     COMMITTEE ON FOREIGN RELATIONS
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 21, 2014

                               __________

       Printed for the use of the Committee on Foreign Relations



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                COMMITTEE ON FOREIGN RELATIONS         

             ROBERT MENENDEZ, New Jersey, Chairman        
BARBARA BOXER, California            BOB CORKER, Tennessee
BENJAMIN L. CARDIN, Maryland         JAMES E. RISCH, Idaho
JEANNE SHAHEEN, New Hampshire        MARCO RUBIO, Florida
CHRISTOPHER A. COONS, Delaware       RON JOHNSON, Wisconsin
RICHARD J. DURBIN, Illinois          JEFF FLAKE, Arizona
TOM UDALL, New Mexico                JOHN McCAIN, Arizona
CHRISTOPHER MURPHY, Connecticut      JOHN BARRASSO, Wyoming
TIM KAINE, Virginia                  RAND PAUL, Kentucky
EDWARD J. MARKEY, Massachusetts
               Daniel E. O'Brien, Staff Director        
        Lester E. Munson III, Republican Staff Director        

                              (ii)        

  














                            C O N T E N T S

                              ----------                              
                                                                   Page

Corker, Hon. Bob, U.S. Senator from Tennessee, opening statement.     2
Koh, Hon. Harold Hongju, Sterling Professor of International Law, 
  Yale Law School, former State Department Legal Adviser, New 
  Haven, CT......................................................    40
    Prepared statement...........................................    41
    Responses to questions submitted for the record by Senator 
      Benjamin L. Cardin.........................................    80
McLeod, Mary E., Principal Deputy Legal Adviser, U.S. Department 
  of State, Washington, DC.......................................     4
    Prepared statement...........................................     6
    Responses to questions submitted for the record by Senator 
      Bob Corker.................................................    77
    Response to question submitted for the record by Senator 
      Benjamin L. Cardin.........................................    80
Menendez, Hon. Robert, U.S. Senator from New Jersey, opening 
  statement......................................................     1
Mukasey, Hon. Michael B., partner, Debevoise & Plimpton, former 
  Attorney General of the United States, New York, NY............    51
    Prepared statement...........................................    52
Preston, Hon. Stephen W., General Council, U.S. Department of 
  Defense, Washington, DC........................................     8
    Prepared statement...........................................     9
    Responses to questions submitted for the record by Senator 
      Bob Corker.................................................    71
    Responses to questions submitted for the record by Senator 
      Benjamin L. Cardin.........................................    79

              Additional Material Submitted for the Record

Written Statement from the Human Rights First....................    61

                                 (iii)

  

 
   AUTHORIZATION FOR USE OF MILITARY FORCE AFTER IRAQ AND AFGHANISTAN

                              ----------                              


                        WEDNESDAY, MAY 21, 2014

                                       U.S. Senate,
                            Committee on Foreign Relations,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:03 a.m., in 
room SD-419, Dirksen Senate Office Building, Hon. Robert 
Menendez (chairman of the committee) presiding.
    Present: Senators Menendez, Durbin, Murphy, Kaine, Markey, 
Corker, Rubio, Johnson, Flake, and McCain.

          OPENING STATEMENT OF HON. ROBERT MENENDEZ, 
                  U.S. SENATOR FROM NEW JERSEY

    The Chairman. Good morning. This hearing will come to 
order.
    Let me welcome our panelists to this important hearing on 
how, when, and where the United States brings to bear the power 
of our military.
    The 9/11 AUMF has served the United States well. It has 
provided broad authority for the United States to pursue and 
dismantle al-Qaeda in Afghanistan and Pakistan, and a 
foundation to authorize U.S. operations against al-Qaeda 
elsewhere, and against groups and individuals which have 
operationally associated themselves with al-Qaeda, like Al 
Qaeda in the Arabian Peninsula--an expansion that the Congress 
and U.S. courts have endorsed.
    That said, with the winding down of significant U.S. 
military activities in Afghanistan by the end of this year, it 
is appropriate to begin reassessing the 9/11 AUMF, in light of 
new circumstances and new threats that have evolved over time. 
The President himself recognized this, a year ago, when he said 
that he looked forward to engaging Congress and the American 
people in efforts to refine and ultimately repeal the AUMF's 
mandate. He also said that he, ``would not sign laws designed 
to expand this mandate further.'' I feel it is time to 
seriously consider what options and tools we have to counter 
what appears to be a continued, and, in some regions, growing, 
threat of terrorism to the United States. This hearing will 
consider existing authorities under the current authorization 
for the use of military force, as well as what additional 
statutory authorities may be required to confront ongoing 
threats associated with al-Qaeda and other terrorist entities 
that threaten the United States, as well as the President's 
inherent authorities.
    I want to hear from our administration witnesses what the 
thinking has been in the executive branch about the current 
AUMF and options to either amend or develop a new AUMF to 
confront the changing threat environment.
    I would ask all our witnesses to answer a simple question 
today. Is the 9/11 AUMF broken in some way? Is it obsolete? Is 
it inadequate to the threats we and our friends and allies face 
today and for the foreseeable future? If we amend or draft a 
new AUMF, what would this new authority look like? How would we 
determine which threats to pursue in order to secure ourselves 
at home and abroad?
    And finally, I would like to hear the views of each of our 
witnesses on the prospect of repealing the Iraq AUMF, which I 
personally believe must be repealed. It is my understanding 
that, from a legal and operational perspective, there are no 
barriers to repeal and no deficiencies of needed authorities to 
assist the Government of Iraq in counterterrorism activities.
    These are important questions that must be answered. Now, 
not at a moment of crisis, is a time to have this important 
dialogue. There is no issue more important to our national 
security than whether to use military force. And there is no 
other committee in the Senate that is seized with this issue 
more squarely than the Senate Foreign Relations Committee. 
Current and future threats necessitate our engagement and our 
attention.
    So, with our thanks to the witnesses again for what I look 
forward to be an informative exchange, let me--before I turn to 
Senator Corker, we have received a statement, for the record, 
from Human Rights First on the issues we will cover in this 
hearing. I ask unanimous consent that it be included in the 
record. Without objection, so ordered.
    The Chairman. Let me recognize the distinguished ranking 
member, Senator Corker, for his remarks.

             OPENING STATEMENT OF HON. BOB CORKER, 
                  U.S. SENATOR FROM TENNESSEE

    Senator Corker. Mr. Chairman, I want to thank you for 
having this hearing.
    And I want to thank the witnesses for taking their time to 
be here before us today and help us. And I want to thank you on 
two fronts. Number one, I know we have talked about this for 
some time, and you have honored a commitment, which I greatly 
appreciate, actually to people on both sides of the aisle. And 
I appreciate the way you have allowed there to be appropriate 
debate on this committee.
    I know we both attended a sort of a discussion last night, 
that I found to be one of the most bizarre I have attended on 
Foreign Relations, on foreign policy in our country. And I am 
convinced more than ever that this discussion regarding the 
AUMF is an important place for us to weigh in and to help shape 
policy.
    And I want to say, on the onset, that, to me, this is not 
about trying to limit the President in his abilities to carry 
out activities, that I think both of us consider to be very, 
very important to our security. It is more about us weighing in 
and actually giving the President the authorities he needs, 
but, at the same time, us having the responsibility to ensure 
that we have appropriate policies, especially with where we are 
today relative to terrorism around the world.
    So, with that, I am going to read--I hate to read opening 
statements, but I am going to do that anyway. And again, I want 
to thank you for allowing us to weigh in on one of the most 
critical issues facing our country.
    My hope is the committee can lead Congress to fulfilling 
its constitutional responsibilities on foreign policy and 
ensure that we, as a nation, pursue our national defense in a 
lawful and accountable way.
    One week after the 9/11 attacks, Congress authorized the 
President to use all necessary and appropriate force against 
those nations, organizations, or persons he determined planned, 
authorized, committed, or aided the terrorist attacks that 
occurred on September the 11th, 2001. More than 12 years later, 
the President continues to rely on this same 60-word 
authorization to fight terrorist organizations around the 
world.
    I understand why people are concerned and may think that 
seeking appropriate legal authorization for counterterrorism is 
either a way to seek expansion of war or attempt to restrict 
the President. From my perspective, neither is the case.
    In the 13 years since the original authorization, the 
threat to our security has changed substantially. Today's 
threat is no longer about the hunt for bin Laden and those 
responsible for the 9/11 attacks. Today's threat is about 
affiliated groups metastasizing across the globe, and the 
current authorization simply does not make sense anymore. These 
evolving threats are not secret, and they are clearly openly 
recognized by this administration
    A State Department report released in April said that, 
while 
al-Qaeda's central leadership is diminished, their affiliated 
groups are expanding, contributing to a 43-percent increase in 
global terrorist attacks in 2013 alone. The Chairman of the 
Joint Chiefs, Martin Dempsey, recently testified that the 
terrorists responsible for killing four Americans in Benghazi 
are not covered under the current AUMF. Perhaps the most 
problematic and ironic is the fact that the President may not 
have the authority to target the most ruthless terrorist 
organization in Syria, the Islamic State of Iraq and Syria, or 
ISIS, because of its split with al-Qaeda.
    It would be easier for us to ignore these difficult issues 
or to buy the fantasy that al-Qaeda is dead or dying and that 
the tides of war are receding. But no serious observer can look 
to the world today without concluding that, for the foreseeable 
future, terrorist groups with global reach will continue to 
threaten our country, regardless of their link to the 9/11 
attacks.
    Rather than abdicating the responsibility for confronting 
this threat and leaving it to the executive branch, Congress 
has a responsibility to both provide the President with the 
legal authorities needed to ensure our security and to define 
the legal parameters in which this shall be pursued. This 
hearing provides members of this committee the opportunity to 
begin that process.
    However, since the President suggested, in a May 2013 memo, 
that he would engage with Congress on this issue, he has been 
silent and done nothing. I believe this committee can and will 
act responsibly. I believe we can move forward in a bipartisan 
fashion to ensure that the law reflects reality, that 
counterterrorism operations respect the law, and that the 
President has the authority that he needs to keep America safe 
while respecting the Constitution.
    This hearing is a first step in that direction. The bottom 
line is that an issue this critical to our security and liberty 
demands a robust and thorough debate from the elected officials 
of the American people. As difficult as it may be, Congress has 
to step up to the plate. It is our duty to have this debate. We 
cannot ask Americans to serve their country and risk their 
lives in the ongoing fight against terrorism if we will not 
take our responsibility seriously here.
    So, with that, Mr. Chairman, thank you again for this great 
hearing, and I hope we will have some results after this 
hearing is concluded.
    The Chairman. Thank you, Senator Corker.
    I understand that a class from Jefferson High School of 
Alexandria, VA, is with us. We welcome you all to the Senate 
Foreign Relations Committee today. It is a great topic for you 
to be listening to as we move in the course of events here. So, 
welcome.
    Our first panel, we have Mary McLeod, the State 
Department's Principal Deputy Legal Adviser, and Stephen 
Preston, the General Counsel of the Department of Defense.
    Your full statements will be included in the record, 
without objection. I would ask you to summarize those 
statements in about 5 minutes or so, so that the members can 
engage you in a question-and-answer session.
    And, with that, Ms. McLeod, you are recognized.

 STATEMENT OF MARY E. McLEOD, PRINCIPAL DEPUTY LEGAL ADVISER, 
            U.S. DEPARTMENT OF STATE, WASHINGTON, DC

    Ms. McLeod. Thank you very much, Chairman Menendez, Ranking 
Member Corker, and members of the committee, for the invitation 
to speak at this hearing. The administration looks forward to 
engaging with this committee and the Congress on this important 
topic.
    I will begin with some introductory remarks before 
discussing briefly a few international law aspects of the 
administration's legal framework for conducting operations 
pursuant to the 2001 Authorization for Use of Military Force, 
or AUMF. I will conclude by laying out a few relevant 
considerations first, establishing our legal framework beyond 
2014. My colleague, Stephen Preston, General Counsel of the 
Department of Defense, will then address the current framework 
under U.S. law for military counterterrorism operations.
    As an initial matter, as you have noted, the President has 
made clear his desire to engage with Congress about the future 
of the AUMF. The President expressed his commitment to move 
America off a permanent war footing, 1 year ago, in his speech 
at the National Defense University, and reaffirmed that 
commitment in this year's State of the Union Address. And the 
President made clear in his NDU speech that his goal is to 
engage with Congress and the American people to refine and 
ultimately repeal the AUMF.
    As we begin our dialogue on this issue, it will be critical 
to assess our legal authorities, not only within the context of 
our current military operations, but also in light of future 
needs, which, as of today's hearing, may not be fully apparent. 
At the same time, as the President has said, we must keep in 
mind, going forward, that not every collection of thugs that 
label themselves al-Qaeda will pose a threat to the United 
States that requires the use of military force in response.
    Turning now to international legal considerations. As we 
consider the future of the AUMF, it will be critical to ensure 
that U.S. actions continue to be grounded firmly in 
international law. Under international law, the United States 
has an inherent right of self-defense to use force to respond 
to an armed attack or to the imminent threat of an armed 
attack. And when in an armed conflict, the United States may 
use force, in accordance with the Law of War, to prosecute that 
conflict. Our use of military force must comply with 
international laws' requirements of necessity, proportionality, 
distinction, and humanity. United States use of force abroad is 
carried out in furtherance of these international law rights 
and requirements, and the Law of War specifically has and will 
continue to provide the legal framework for U.S. military 
actions taken in the armed conflict against al-Qaeda, Taliban, 
and associated forces. Going forward, the Office of the Legal 
Adviser at the State Department will continue to work to ensure 
that we exercise our rights consistent with these and other 
applicable international law principles.
    I also want to note that there is a firm basis in 
international law to support our friends and partners facing 
the threat of terrorism within their own borders. Even where 
violent extremists pose a greater threat to those countries 
than they do to the United States, we can draw from all 
elements of national power, including military force in 
appropriate cases, to help them counter these threats.
    In Mali, for example, we have been providing military aid 
to French forces to push back terrorists and other extremists. 
As the President stated in his speech 1 year ago, we must 
define our effort not as a boundless global war on terror, but, 
rather, as a series of persistent, targeted efforts to 
dismantle specific networks of violent extremists that threaten 
America. Indeed, targeted efforts undertaken in partnership 
with other countries can be highly effective in countering 
terrorist threats without keeping the United States on a 
permanent wartime footing.
    With these principles in mind, let me now outline a few 
considerations regarding a future legal framework. We are 
currently working to identify an appropriate United States 
military presence in Afghanistan after 2014. We are also 
working toward the closure of the detention facility at 
Guantanamo Bay, which the President has reaffirmed will further 
our national security, our international standing, and our 
ability to cooperate with allies in counterterrorism efforts. 
We also continue to work with our allies and partners to 
provide assistance and training to increase our capacity to 
take effective measures against terrorist organizations. The 
State Department is joined by many other U.S. agencies in 
implementing this comprehensive strategy, which includes a 
broad range of military and other foreign assistance, law 
enforcement cooperation, intelligence-sharing, and diplomatic 
engagement. All of these efforts are vital to countering 
threats. This is true even at times such as the present, when 
we are using military force as part of our response to the 
terrorist threat. In the long term, the success of our efforts 
will depend not exclusively on the use of military force, but 
also on sustained attention to achieving effective governance 
and the rule of law in countries where terrorist threats 
proliferate.
    And, based on all these considerations, we would suggest 
that our efforts to identify a future legal framework be guided 
by the following principles.
    First, any domestic authority that we rely on to use 
military force should reflect the President's clear direction 
that we must move America off a permanent wartime footing. As 
the President stated, this means that we will engage with 
Congress and the American people to refine, and ultimately 
repeal, the AUMF, and that the President will not sign a law 
designed to expand the AUMF's mandate further.
    Second, any authorization to use military force, including 
any detention operations, must be consistent with international 
law.
    Third, we must continue to enhance our cooperation with 
partner nations to take action within their own borders, 
including law enforcement action and other forms of engagement, 
where those methods provide the most effective and sustainable 
means of countering terrorist threats.
    Finally, we must keep in mind that the President's 
authority to defend the United States would remain part of any 
framework that emerges.
    Thank you very much. And I will now turn to Stephen Preston 
to make his statement. And, after that, we would be happy to 
answer any questions you may have.
    [The prepared statement of Ms. McLeod follows:]

                  Prepared Statement of Mary E. McLeod

    Thank you very much Chairman Menendez, Ranking Member Corker, and 
members of the committee, for the invitation to speak at this hearing. 
The administration looks forward to engaging with this committee and 
the Congress on this important topic.
    I will begin with some introductory remarks before discussing 
briefly a few international law aspects of the administration's legal 
framework for conducting operations pursuant to the 2001 Authorization 
for Use of Military Force (AUMF). I will conclude by laying out a few 
relevant considerations for establishing our legal framework beyond 
2014. My colleague Stephen Preston, General Counsel of the Department 
of Defense, will then address the current framework under U.S. law for 
military counterterrorism operations.
    As an initial matter, the President has made clear his desire to 
engage with Congress about the future of the AUMF. The President 
expressed his commitment to ``move [America] off a permanent war 
footing'' 1 year ago in his speech at the National Defense University 
(NDU), and reaffirmed this commitment in this year's State of the Union 
address. And the President made clear in his NDU speech that his goal 
is to engage with Congress and the American people to ``refine, and 
ultimately repeal'' the AUMF.
    As we begin our dialogue on this issue, it will be critical to 
assess our legal authorities not only within the context of our current 
military operations, but also in light of future needs, which as of 
today's hearing may not be fully apparent. At the same time, as the 
President has said, we must keep in mind going forward that not every 
collection of thugs that label themselves al-Qaeda will pose a threat 
to the United States that requires the use of military force in 
response.
                   international legal considerations
    Turning now to international legal considerations, as we consider 
the future of the AUMF, it will be critical to ensure that U.S. actions 
continue to be grounded firmly in international law. Under 
international law, the United States has an inherent right of self-
defense to use force to respond to an armed attack, or the imminent 
threat of an armed attack. And, when in an armed conflict, the United 
States may use force, in accordance with the law of war, to prosecute 
that conflict. Our use of military force must comply with international 
law's requirements of necessity, proportionality, distinction, and 
humanity.
    United States use of force abroad is carried out in furtherance of 
these international law rights and requirements, and the law of war 
specifically has and will continue to provide the legal framework for 
U.S. military actions taken in the armed conflict against al-Qaeda, 
Taliban, and associated forces. Going forward, the Office of the Legal 
Adviser at the State Department will continue to work to ensure that we 
exercise our rights consistent with these and other applicable 
international law principles.
    I also want to note that there is a firm basis in international law 
to support our friends and partners facing the threat of terrorism 
within their own borders. Even where violent extremists pose a greater 
threat to these countries than they do to the United States, we can 
draw from all elements of national power--including military force, in 
appropriate cases--to help them counter these threats. In Mali, for 
example, we have been providing military aid to French forces to push 
back terrorists and other extremists. As the President stated in his 
speech 1 year ago, ``we must define our effort not as a boundless 
global war on terror, but rather as a series of persistent, targeted 
efforts to dismantle specific networks of violent extremists that 
threaten America.'' Indeed, targeted efforts undertaken in partnership 
with other countries can be highly effective in countering terrorist 
threats, without keeping the United States on a permanent wartime 
footing.
                       post-2014 legal framework
    With these principles in mind, let me now outline a few 
considerations regarding a future legal framework. We are currently 
working to identify an appropriate U.S. military presence in 
Afghanistan after 2014. We are also working toward the closure of the 
detention facility at Guantanamo Bay, which the President has 
reaffirmed will further our national security, our international 
standing, and our ability to cooperate with allies in counterterrorism 
efforts. We also continue to work with our allies and partners to 
provide assistance and training to increase their capacity to take 
effective measures against terrorist organizations.
    The State Department is joined by many other U.S. agencies in 
implementing this comprehensive strategy, which includes a broad range 
of military and other foreign assistance, law enforcement cooperation, 
intelligence-sharing, and diplomatic engagement. All of these efforts 
are vital to countering threats. This is true even at times--such as 
the present--when we are using military force as part of our response 
to the terrorist threat. In the long term, the success of our efforts 
will depend not exclusively on the use of military force, but also on 
sustained attention to achieving effective governance and the rule of 
law in countries where terrorist threats proliferate.
    We also bear in mind what Department of Homeland Security Secretary 
Jeh Johnson, then in his capacity as General Counsel of the Department 
of Defense, stated in his November 2012 speech at the Oxford Union. He 
noted that there will come a ``tipping point'' when our efforts to 
disrupt, dismantle, and defeat al-Qaeda have succeeded to such an 
extent that we will no longer describe ourselves as being in an ``armed 
conflict'' with al-Qaeda to which the law of war applies. At that 
point, we will rely primarily on law enforcement, intelligence, foreign 
assistance, and diplomatic means--in cooperation with the international 
community--to counter any remaining threat posed by al-Qaeda and its 
affiliates. And as we do so, we will retain the authority, under both 
international and domestic law, to act in national or collective self-
defense against armed attacks or imminent threats thereof posed by 
terrorist groups.
    Based on all of these considerations, we would suggest that our 
efforts to identify a future legal framework be guided by the following 
principles:

   First, any domestic authority that we rely on to use 
        military force should reflect the President's clear direction 
        that we must move America off a permanent wartime footing. As 
        the President stated, this means that we will engage with 
        Congress and the American people to ``refine, and ultimately 
        repeal'' the AUMF, and that the President will not sign a law 
        designed to expand the AUMF's mandate further.
   Second, any authorization to use military force, including 
        any detention operations, must be consistent with international 
        law.
   Third, we must continue to enhance our cooperation with 
        partner nations to take action within their own borders, 
        including law enforcement action and other forms of engagement, 
        where those methods provide the most effective and sustainable 
        means of countering terrorist threats.
   Fourth, the President has made clear that now is the time to 
        close the detention facility at Guantanamo Bay, and any future 
        legislation should lift all remaining restrictions on the 
        Commander in Chief's authority to transfer detainees held under 
        the law of war.
   Finally, we must keep in mind that the President's authority 
        to defend the United States would remain part of any framework 
        that emerges.

    Thank you very much. I will now turn to Stephen Preston to make his 
statement. After that, we would be happy to address any questions you 
might have.

    The Chairman. Mr. Preston.

  STATEMENT OF HON. STEPHEN W. PRESTON, GENERAL COUNSEL, U.S. 
             DEPARTMENT OF DEFENSE, WASHINGTON, DC

    Mr. Preston. Thank you, Mr. Chairman, Ranking Member 
Corker, and members of the committee. Appreciate this 
opportunity to appear.
    I would like to open with a brief discussion of the current 
legal framework for U.S. military operations, focusing on how 
the 2001 Authorization for the Use of Military Force is being 
applied by the Department of Defense.
    Although the AUMF makes no express mention of specific 
nations or groups, it was clearly intended to authorize the 
President to use force against al-Qaeda, the organization that 
perpetrated the 9/11 attacks, and the Taliban, which harbored 
al-Qaeda. In addition, based on the well-established concept of 
cobelligerency in the laws of war, the AUMF has been 
interpreted to authorize the use of force against associated 
forces of al-Qaeda and the Taliban.
    As the administration has stated publicly on numerous 
occasions, to be an associated force, a group must be both an 
organized, armed group that has entered the fight alongside al-
Qaeda or the Taliban and a cobelligerent with al-Qaeda or the 
Taliban in hostilities against the United States or its 
coalition partners.
    The Department of Defense relies on the AUMF in three 
contexts: ongoing United States military operations in 
Afghanistan, our ongoing military operations against al-Qaeda 
and associated forces outside the United States in the theater 
of Afghanistan, and detention operations in Afghanistan and at 
the Guantanamo Bay, Cuba, facility.
    In Afghanistan, the U.S. military currently conducts 
operations pursuant to the AUMF against al-Qaeda, the Taliban, 
and other terrorist or insurgent groups that are engaged 
alongside al-Qaeda and the Taliban in hostilities against the 
United States and its coalition partners. In addition, the ISAF 
and U.S. rules of engagement permit the targeting of hostile 
personnel in Afghanistan, based on the threat they pose to 
United States, coalition, and Afghan forces or to civilians.
    Outside the United States in areas of active hostilities, 
the U.S. military currently takes direct action under the 
AUMF--that is, capture and lethal operations--in the following 
circumstances.
    First, in Yemen, the United States military has conducted 
direct action targeting members of al-Qaeda in the Arabian 
Peninsula. AQAP is an organized, armed group that is part of 
al-Qaeda, or at least an associated force of al-Qaeda, for 
purposes of the AUMF.
    Second, the United States military has also conducted 
capture or lethal operations under the AUMF outside Afghanistan 
against individuals who are part of al-Qaeda and targeted as 
such. For example, in Somalia, the United States military has 
conducted direct action against a limited number of targets who 
have been determined to be part of al-Qaeda. And in Libya, in 
October 2013, in reliance on the AUMF, United States Forces 
captured longtime al-Qaeda member Abu Anas al-Libi.
    Now, the fact that an al-Qaeda-affiliated group has not to 
date been identified as an associated force for purposes of the 
AUMF does not mean that the United States has made a final 
determination that the group is not an associated force. We are 
prepared to review this question whenever a situation arises in 
which it may be necessary to take direct action against a 
terrorist group in order to protect our country.
    Lastly, in our ongoing armed conflict against al-Qaeda, the 
Taliban, and associated forces, the United States military 
relies on the authority of the AUMF to hold enemy belligerents 
in military detention in Afghanistan and at the detention 
facility at Guantanamo Bay.
    The AUMF is not the only authority the President has to use 
force to keep us safe. For example, the President has 
authority, under the United States Constitution, to use 
military force as needed to defend the Nation against armed 
attacks or imminent threats of armed attack. This inherent 
right of self-defense is also recognized in international law.
    Looking forward, the central question is, What future legal 
framework will provide the authorities necessary in order for 
our government to meet the terrorist threat to our country, but 
will not greatly exceed what is needed to meet the threat? As 
was made clear in the President's NDU speech last year, the 
answer is not legislation granting the Executive unbound powers 
more suited for traditional armed conflicts between nation-
states. Rather, the objective is a framework that will support 
a series of persistent, targeted efforts to dismantle specific 
networks of violent extremists that threaten America. The 
challenge is to ensure that the authorities for U.S. military 
operations are both adequate and appropriately tailored to the 
threat.
    And, with that, I look forward to answering your questions.
    [The prepared statement of Mr. Preston follows:]

                Prepared Statement of Stephen W. Preston

    Thank you, Chairman Menendez, Ranking Member Corker, and members of 
the committee, for this opportunity to testify about the framework 
under U.S. law for ongoing military counterterrorism and detention 
operations. Following up on the remarks of my colleague from the 
Department of State, I will discuss (i) the executive branch's 
interpretation of the 2001 Authorization for the Use of Military Force 
(AUMF); (ii) how the AUMF is being applied by the Department of Defense 
in the armed conflict against al-Qaeda, the Taliban, and associated 
forces; and (iii) other domestic legal authority available to defend 
our country against terrorist threats.
                     i. interpretation of the aumf
    The AUMF, enacted 1 week after the attacks of September 11, 2001, 
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 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 
executive branch interprets the AUMF to authorize the use of force 
against al-Qaeda, the Taliban, and associated forces. This 
interpretation has been embraced by the courts in the context of habeas 
corpus litigation involving detainees at the Guantanamo Bay detention 
facility, and by the Congress when it codified the interpretation, for 
the purposes of detention, almost word for word in Section 1021 of the 
National Defense Authorization Act for Fiscal Year 2012.
    Although the AUMF makes no express mention of specific nations or 
groups, it was clearly intended to authorize the use of force against 
al-Qaeda, the ``organization'' that ``planned, authorized, committed, 
and aided the terrorist attacks that occurred on September 11, 2001,'' 
as well as the Taliban, which ``harbored'' al-Qaeda. The concept of an 
``associated force'' is based on the well-established concept of 
cobelligerency in the laws of war.
    As the administration has stated publicly on numerous occasions, to 
be an ``associated force,'' a group must be both (1) an organized, 
armed group that has entered the fight alongside al-Qaeda or the 
Taliban and (2) a cobelligerent with al-Qaeda or the Taliban in 
hostilities against the United States or its coalition partners. Before 
a group may be targeted for direct action under the AUMF, it is 
evaluated against this standard based on its current and historical 
activities. The determination that a particular group is an 
``associated force'' is made at the most senior levels of the U.S. 
Government, following reviews by senior government lawyers and informed 
by departments and agencies with relevant expertise and institutional 
roles, including all-source intelligence from the U.S. intelligence 
community. It is not the case in law or in practice that the concept of 
an ``associated force'' is open-ended or otherwise provides the 
administration with unlimited flexibility to define the scope of the 
AUMF. A group that simply embraces al-Qaeda's ideology is not an 
``associated force,'' nor is every group or individual that commits 
terrorist acts.
                  ii. current application of the aumf
    The Department of Defense relies on the AUMF in three contexts: for 
ongoing U.S. military operations in Afghanistan; for our ongoing 
military operations against al-Qaeda and associated forces outside of 
the United States and the theater of Afghanistan; and for associated 
detention operations in Afghanistan and at the detention facility at 
Guantanamo Bay, Cuba.
Operations in Afghanistan
    In Afghanistan, the U.S. military currently conducts operations 
pursuant to the AUMF against al-Qaeda, the Taliban, and other terrorist 
and insurgent groups that are engaged alongside al-Qaeda and the 
Taliban in hostilities against the United States or its coalition 
partners. In addition, the International Security Assistance Force and 
U.S. rules of engagement permit targeting of hostile personnel in 
Afghanistan based on the threat they pose to U.S., coalition, and 
Afghan forces or to civilians.
    Beyond 2014, assuming we are able to conclude the Bilateral 
Security Agreement (BSA) with the Afghan Government on an acceptable 
timeline, the United States would seek to retain a small military 
presence in Afghanistan to conduct two narrow missions. First, to 
provide limited noncombat support to train, advise, and assist the 
Afghan National Security Forces under a North Atlantic Treaty 
Organization regional framework. And, second, to provide a U.S. 
national capability to disrupt terrorist activity in that region. The 
continued presence of U.S. forces in Afghanistan would be conditioned 
not only on the conclusion of the BSA, but also on the timely and 
smooth political transition to a post-Karzai administration sometime 
this year.
Counterterrorism Operations Outside the United States and Areas of 
        Active Hostilities
    For operations outside Afghanistan, as the President announced in 
his speech at National Defense University on May 23, 2013, he has 
issued Presidential Policy Guidance to formalize and strengthen the 
administration's rigorous standards and procedures for reviewing and 
approving operations to capture or employ lethal force against 
terrorist targets outside the United States and outside areas of active 
hostilities. Pursuant to this Guidance, when the U.S. military takes 
lethal counterterrorism action beyond the Afghan theater, it does so 
only against targets that both are lawful military targets under 
domestic and international law and pose a continuing, imminent threat 
to U.S. persons. Thus, under the President's policy, no one is targeted 
with lethal military force outside Afghanistan based solely on 
membership in al-Qaeda or an associated force. In addition, this 
Guidance requires near certainty that noncombatants will not be killed 
or injured before lethal action may be taken.
    The U.S. military currently takes direct action (capture or lethal 
operations) under the AUMF outside the United States and areas of 
active hostilities in the following circumstances:

   First, in Yemen, the U.S. military has conducted direct 
        action targeting members of Al Qaeda in the Arabian Peninsula 
        (AQAP), which is an organized, armed group that is part of, or 
        at least an associated force of, al-Qaeda. The determination 
        that the AUMF authorizes the use of force against AQAP is based 
        on information about both AQAP's current and historical 
        connections to al-Qaeda and the fact that AQAP has repeatedly 
        launched attacks against the United States, including the 
        December 2009 ``underwear bomber'' attack and the 2010 
        ``printer cartridge'' attack. In addition, AQAP continues to 
        plan and attempt attacks against U.S. persons, both inside and 
        outside Yemen.
   Second, the U.S. military has also conducted capture or 
        lethal operations under the AUMF outside of Afghanistan against 
        individuals who are part of al-Qaeda and targeted as such. For 
        example, in Somalia, the U.S. military has conducted direct 
        action against a limited number of targets who, based on 
        information about their current and historical activities, have 
        been determined to be part of al-Qaeda. (Some of these 
        individuals are also part of al-Shabaab, a group that is openly 
        affiliated with al-Qaeda.) In Libya, in October 2013, in 
        reliance on the AUMF, U.S. forces captured longtime al-Qaeda 
        member Abu Anas al Libi.

    The fact that an al-Qaeda-affiliated group has not been identified 
as an ``associated force'' for purposes of the AUMF does not mean that 
the United States has made a final determination that the group is not 
an ``associated force.'' We are prepared to review this question 
whenever a situation arises in which it may be necessary to take direct 
action against a terrorist group.
Detention Operations
    Lastly, in our ongoing armed conflict against al-Qaeda, the 
Taliban, and associated forces, the U.S. military relies on the 
authority of the AUMF to hold enemy belligerents in military detention 
in Afghanistan and at the detention facility at Guantanamo Bay, Cuba.
                  iii. other domestic legal authority
    For more than 12 years, the AUMF has provided authority to defend 
against certain known terrorist threats to our country--those posed by 
al-Qaeda, the Taliban, and associated forces--notably, those groups and 
associated forces in Afghanistan, AQAP in Yemen, and individuals who 
are part of al-Qaeda elsewhere such as Somalia and Libya. However, the 
AUMF is not the only authority the President has to use force in order 
to keep us safe. For example, the President has authority, under the 
U.S. Constitution, to use military force as needed to defend the nation 
against armed attacks and imminent threats of armed attack. (This 
inherent right of national self-defense is also recognized in 
international law.) Thus, although we are strongest when Congress and 
the executive branch are acting together, the President has the 
authority to respond to emerging threats, should it become necessary to 
do so.
    A central question looking forward is what future legal framework 
will provide the authorities necessary in order for our government to 
meet the terrorist threat to our country, but will not greatly exceed 
what is needed to meet that threat. As was made clear in the 
President's NDU speech last year, the answer is not legislation 
granting the Executive ``unbound powers more suited for traditional 
armed conflicts between nations.'' Rather, the objective is a framework 
that will support ``a series of persistent, targeted efforts to 
dismantle specific networks of violent extremists that threaten 
America.'' The challenge is to ensure that the authorities for U.S. 
military counterterrorism and detention operations are both adequate 
and appropriately tailored to the threat.
    It is also essential that we strive for clarity in the legal 
authority for, and associated restrictions on, the use of military 
force. Such clarity is necessary to ensure the lawfulness of our 
government's actions, first and foremost, and in efforts to explain the 
legal framework on which we would rely to the American public and to 
the United States partners abroad.

    The Chairman. Well, thank you both. I know you stuck to 
your script, so let me try to get you off your script and go 
back to my original questions.
    Is the 9/11 AUMF broken in some way? Is it obsolete? Is it 
inadequate to the threats we and our friends and allies face 
today and in the foreseeable future?
    I offer that up for either one of you to answer, or both of 
you to answer.
    Mr. Preston. Let me begin, Mr. Chairman, and say that I 
agree with the views expressed on behalf of DOD, a little more 
than a year ago in a hearing before the Senate Armed Services 
Committee, that the AUMF is adequate in order to prosecute and 
continue to prosecute the current armed conflict against al-
Qaeda, the Taliban, and associated forces.
    To the extent that the United States is threatened by a 
terrorist group to which the AUMF has not been determined to 
apply, the President, as we have said, has authority, under the 
U.S. Constitution, to defend the Nation against armed attacks 
and imminent threats of such attacks, and therefore, has the 
authority to use military force against groups in order to 
protect the country from that threat.
    The Chairman. Is it obsolete in any way?
    Mr. Preston. Well, I think, as the President has observed, 
we have reached a time, now 12 years into the conflict, where 
it is appropriate to review the AUMF with an eye toward its 
refinement and, ultimately, its repeal. In my view, I would say 
what we are looking for, and looking to develop, is a legal 
framework for the future that will enable us to continue 
fighting the terrorists that threaten our country and, at the 
same time, to take the country off a permanent wartime footing.
    The Chairman. All right, let me ask you a series of 
questions to further define this. One is specifically that I 
hope can have a relatively easy answer, which is on the Iraq 
AUMF. The United States ended its combat operations in Iraq in 
2010, and, in fact, withdrew all of its military forces that 
same year. Since then, Congress has, on a number of occasions, 
examined the possibility of repealing the 2002 AUMF authorizing 
our Iraq operations, but the administration has repeatedly 
opposed those efforts.
    Starting with you, Ms. McLeod, can you explain to the 
committee, one, whether the administration continues to oppose 
repeal of the Iraq AUMF? And, if so, why? And I would like to 
hear your answer to this, Mr. Preston, as well.
    Ms. McLeod. Certainly, Chairman Menendez. And, once again, 
thank you for inviting me to testify here today.
    As you said, the United States has ended combat operations 
in Iraq, and we have withdrawn our military forces. And I can 
confirm that we are not relying on the 2002 Iraq AUMF for any 
military operations, nor do we intend to do so. And I am here 
to tell you today that the administration now supports repeal 
of the 2002 Iraq AUMF.
    Mr. Preston. Mr. Chairman, I agree. That is certainly my 
understanding, as well.
    The Chairman. All right. That brings to full circle my 
view, which we should not have been in Iraq in the first place. 
That is why I voted against it. And I would be happy to repeal 
it now.
    Expressions of approval or disapproval of any of the 
statements that take place in this hearing are inappropriate, 
and I would urge the audience to act accordingly.
    My second question is one I would like for both of you to 
answer. If the AUMF were to expire, would the President be able 
to conduct counterterror operations, such as drone strikes in 
Yemen or other operations against the perpetrators of the 
Benghazi attack, using existing legal authorities? Or would a 
new or amended AUMF be required to conduct such operations?
    Ms. McLeod. Thank you, Mr. Chairman. Let me begin.
    The AUMF currently, as we have said, authorizes the use of 
force against al-Qaeda, Taliban, and associated forces. And in 
Yemen, the U.S. military has conducted direct action targeting 
members of Al Qaeda in the Arabian Peninsula, known as AQAP, 
which has been determined to be, at least, either part of or at 
least associated with al-Qaeda. And, as you mentioned, Senator, 
Article 2 of the Constitution provides the President with the 
authority to target with military force those who pose an 
imminent threat of armed attack against the United States. And, 
as both a domestic law matter and an international law matter, 
this authority to act in self-defense does not depend on the 
existence of an AUMF.
    With respect to the AUMF, though, in particular, we are 
still in an armed conflict, as of today, with al-Qaeda, 
Taliban, and associated forces. And the AUMF continues to 
provide a source of authority to use military force against 
those groups, when necessary, including associated detention 
operations.
    And I would also note that the--as I said in my statement--
that the President has and uses a range of other authorities to 
counter terrorist threats, and these law enforcement, 
intelligence, foreign assistance authorities----
    The Chairman. So, your answer----
    Ms. McLeod [continuing]. And so forth.
    The Chairman. Just to synthesize it for me, because I know, 
when I deal with lawyers, I have to get to--is--your answer, 
therefore, is, you do not need a new--from your view, a new or 
amended AUMF to conduct such operations.
    Ms. McLeod. Not for the President to take action against 
imminent threats to the United States.
    The Chairman. Is that your view, Mr. Preston?
    Mr. Preston. I agree.
    The Chairman. Now, the question is, Is acting against the 
perpetrators of Benghazi's attack an imminent threat?
    [Pause.]
    The Chairman. I would be happy for either one of you to 
answer.
    Ms. McLeod. We will answer. I will----
    The Chairman. I know, because I am not going to go to the 
next Senator until you do, so----
    [Laughter.]
    Ms. McLeod. Okay. No, I promise, I am going to answer right 
now.
    Senator, the United States remains committed to using every 
lawful tool available to bring the perpetrators of the Benghazi 
attacks to justice. And we think we have adequate tools to meet 
that objective.
    The Chairman. You think you have adequate tools meet that 
objective.
    Ms. McLeod. Yes.
    The Chairman. And can you give me a sense of what those 
tools are?
    Ms. McLeod. Well, the administration favors bringing those 
responsible for the attacks to justice through prosecution in 
an Article 3 court. And the Justice Department is conducting an 
investigation to try and achieve that end.
    The Chairman. Yes. And if that investigation leads to the 
identification of perpetrators, how would you act against the 
perpetrators? Under what authority?
    Mr. Preston. Sir, perhaps I could chime and say----
    The Chairman. Yes.
    Mr. Preston [continuing]. I think we have a range of 
authorities. And our government is committed to making full use 
of all lawfully available instruments of national power to 
bring these people to justice and to ensure that they do not 
present a threat to this country.
    To the extent that they present an imminent threat of 
violent attack to this country, the President has, under the 
Constitution, authority to use force in order to protect this 
country. Beyond that, to the extent we are presented with a 
concrete situation, we are in a position to evaluate and 
reevaluate whether they would qualify under the AUMF. And, in 
addition, quite apart from the use of military force and those 
authorities, there is law enforcement authority to apprehend 
and bring to justice, try, and prosecute these criminals.
    The Chairman. Let me ask you two final questions before I 
turn to Senator Corker.
    What authorities does the 9/11 AUMF give the President, in 
terms of authorities to use force, that he does not already 
possess in other authorities, including Article 2 of the 
Constitution?
    Ms. McLeod. Senator, as we have said, the President does 
have authority, under Article 2, to protect the Nation against 
imminent threat of armed attack. However, as the President has 
said, and I agree with, it is always better and more powerful 
to have the executive branch and Congress working together on 
issues involving----
    The Chairman. Yes, that is not my question. My question is 
very simple.
    In order to determine what we do, moving forward--I do not 
mean to interrupt you, but--I have got to get a sense, at least 
from an administration perspective, of what you feel the AUMF 
gave you that you did not have otherwise, constitutionally or 
through some other statutory provisions. Because if you tell me 
that you have all the authorities in the world to go ahead and 
do everything that the 9/11 AUMF provided, then that AUMF was 
not necessary. So, give me a sense of what you got through the 
AUMF that you do not have under existing constitutional or 
statutory law.
    Mr. Preston. Senator, if I might answer that, I think it 
would be fair to say that, with or without an AUMF, to the 
extent that it grants authority for the use of military force 
against al-Qaeda and the Taliban and associated forces in which 
we are in armed conflict, and to the extent that those groups 
continue to pose an imminent threat of violent attack to this 
country, the President does have constitutional authority to 
act. It is not----
    The Chairman. So, you are telling us, that AUMF was not 
necessary.
    Mr. Preston. No, sir.
    The Chairman. Other than an expression of congressional 
support for that engagement.
    Mr. Preston. Not an unimportant point, Mr. Chairman, but I 
think the point is that these two sources of authority are not, 
and I do not think were ever intended to be, mutually 
exclusive. And, in fact, as your question suggests, they are 
very largely overlapping when it comes to groups that present a 
terrorist threat of attack to this country.
    I am not going to tell you there are no differences between 
the two. The concept between an Authorization for the Use of 
Military Force, which names enemy groups and, similar to Law of 
War concepts, enables the use of force against groups, 
including to degrade those forces, without specific reference 
to imminent threat, is not the same concept or approach as the 
President's constitutional authority to defend the country 
against imminent threat, and that parallel international law 
concept of national self-defense in which it is rooted in the 
presence of imminent threat.
    But, I think, in terms of the authority to protect this 
country against these groups, at least some of which present a 
threat of imminent attack against the United States, both the 
statute and the Constitution provide authority for the 
President to use military force to protect us.
    The Chairman. Senator Corker.
    Senator Corker. Mr. Chairman, I have to say, I know several 
of us were involved in a very bizarre discussion last night. 
This continues a very bizarre discussion.
    I do want to say, for those who are reading the 
transcripts, Ms. McLeod, it is unbelievable to me that, to 
answer our questions, you have to find the place, a pre-
prepared statement to make, and cannot answer these questions 
directly yourself, which is troubling to me. But, let me just--
I think what you have said, if I can synthesize the legalese 
that you have used, is that the President needs no AUMF to 
carry out the the counterterrorism activities we are carrying 
out around the world. If I heard you correctly, I think that is 
what you said. Is that correct?
    Ms. McLeod. Senator, I think what I said was, he has 
authority to use military force if it is necessary.
    Senator Corker. I think what I heard you say is, he has the 
authority to carry out the activities he is carrying without 
really having an AUMF. And Mr. President--Mr. Preston, with a 
degree of legalese, has, I think, said something similar. I 
would just like to know, yes or no: If the 2001 AUMF was 
undone, can the President carry out the activities that he is 
carrying out right now?
    Ms. McLeod. Yes, I believe he could, Senator Corker. But--
--
    Senator Corker. So, we have really----
    Ms. McLeod [continuing]. I do think----
    Senator Corker [continuing]. As a Congress, do not need to 
be involved in this subject at all.
    Ms. McLeod. What I was going to say, in addition, is that I 
think, when we are talking about sustained military 
engagements, it is definitely appropriate to get Authorizations 
for Use of Military Force.
    Senator Corker. Are we in sustained----
    Ms. McLeod. And that has been the practice----
    Senator Corker [continuing]. Military operations now 
against terrorists?
    Ms. McLeod [continuing]. Certainly against----
    Senator Corker. I know the President, a year ago, said we 
were not. We were doing targeted--I forgot the phraseology that 
he used. And maybe it was to circumvent this, I do not know. 
But, are we, or are we not, in a continuous effort against al-
Qaeda and affiliated groups? Yes or no?
    [Pause.]
    Senator Corker. I would like for the record--she has to----
    Mr. Preston. Yes, we are.
    Senator Corker [continuing]. Look at the other person to 
get the answer. I find this very disconcerting today. Do you 
want to-- 
I guess you want to answer it for her?
    Mr. Preston. I am sorry, I did not understand your question 
was directed solely at her.
    Senator Corker. Well, let me, Ms. McLeod, since you are at 
State Department and that is who we have jurisdiction over--and 
I noticed a staffer has given you the answer, there. If you 
would read it for us, it would be great.
    Ms. McLeod. Could you repeat your question, Senator Corker?
    Senator Corker. Does the President have the ability, 
without an AUMF, to carry out the activities that he is 
carrying out today against terrorists, affiliates of al-Qaeda? 
And are we, or are we not, engaged in continuous activity 
against them?
    Ms. McLeod. We continue to be in an armed conflict with al-
Qaeda----
    Senator Corker. So, we are in continuous activity. So, do 
we need an AUMF, or not?
    [Pause.]
    Ms. McLeod. I think, as we have said, it is important to 
have----
    Senator Corker. Important for what reason, politically or 
legally?
    Ms. McLeod. In part, politically, but also because, when 
the Congress has a role to play----
    Senator Corker. Well, tell me what that role is. Because if 
I understand what you said before, the President can carry out 
the activities he is carrying out without an AUMF. So, it 
sounds to me like we are pretty irrelevant to the process from 
the administration's standpoint.
    Ms. McLeod. That is not true, Senator Corker.
    Senator Corker. Well, tell me----
    Ms. McLeod. We have----
    Senator Corker [continuing]. How we are relevant.
    Ms. McLeod [continuing]. Consulted closely with the 
Congress on our counterterrorism activities.
    Senator Corker. Okay.
    Well, let me ask--let me change topics. I am really--this 
is not the line of questioning I expected, but I also expected 
a different type of testimony today on one of the most 
important issues that our Nation deals with.
    But, Mr. President, do you think--Mr. Preston, excuse me--
do you believe that the 9/11 AUMF authorizes you to take action 
against all terrorist groups that present an ongoing serious 
threat to the United States? Are there any terrorist groups 
that you think the AUMF does not--it sounds like you all do not 
think we need an AUMF at all, so it is kind of becoming an 
irrelevant question. But, are there terrorist groups, per the 
AUMF that you do not think it is relevant, that you do not have 
the ability to go against?
    Mr. Preston. Senator, I would not say the AUMF is 
irrelevant or that Congress's role is irrelevant. The point we 
were trying--that I was trying to make is that there is very 
robust authority, both in the AUMF and in the Article 2, in 
terms of the President's powers----
    Senator Corker. Are there other groups that we cannot go 
against today, yes or no?
    Mr. Preston. Yes, sir. The--I mean, let me finish the 
point, which is to say, the President has invited us to focus 
and engage in dialogue with Congress about the continued 
necessity and utility of the AUMF or a follow-on legal regime.
    To answer your question more directly, the AUMF applies to 
al-Qaeda, Taliban, groups and individuals that are part of al-
Qaeda and the Taliban, and associated----
    Senator Corker. That was not the question. And you are 
really frustrating me.
    Mr. Preston. There are----
    Senator Corker. And I have a generally good nature, but I 
am really getting upset. Okay?
    Are there groups today that the administration cannot go 
against because the AUMF does not allow you to do that? 
Terrorist groups.
    Mr. Preston. Senator Corker, I am not aware of any foreign 
terrorist group that presents a threat of violent attack on 
this country that the President lacks authority to use military 
force to defend against, as necessary, simply because they have 
not been determined to be an associated force within the AUMF.
    In other words, if a group that is not, or may not be, 
covered by the AUMF presents a threat of violent attack to this 
country, the President does have authority to take action, 
including military action, to protect the country from that 
threat.
    Senator Corker. So, there are groups that did not exist at 
the time but are affiliated with the al-Qaeda that today are 
covered by the 9/11 AUMF, even though they did not exist at the 
time.
    Mr. Preston. That is correct, sir. The way I look at it is, 
the AUMF, not by name, but essentially identified the Taliban 
and 
al-Qaeda as our enemies, and that other groups, most notably 
AQAP, which has emerged since that time, have made themselves 
our enemy by joining with al-Qaeda and engaging in hostilities 
against our country.
    Senator Corker. Yes. So, the group that I discussed in my 
opening comments, ISIS, which is split from al-Qaeda, that is 
not affiliated with al-Qaeda--and actually, I heard 
administration officials had expressed concerns about their 
ability to deal with them in Syria and as they migrate back 
across into Iraq. Are you saying that, even though they are not 
a part of al-Qaeda, you have the authority to go against them?
    Mr. Preston. Senator, what we would do if we were presented 
with a need and an opportunity of contemplating the use of 
military force would be to examine what our authorities were. 
That would consist, first of all, of determining whether or not 
they would fall within the AUMF as an associated force, using 
the definition that we have provided, or, if not, if they 
present a threat of imminent attack on this country, we could 
rely on the President's inherent constitutional authority.
    Senator Corker. So, you would not rely on the AUMF. He just 
has authority to do whatever.
    Mr. Preston. We could rely on the AUMF to the extent that 
this group, or any other group, is covered by the AUMF.
    Senator Corker. But--I thought you just--yes.
    Mr. Chairman, I find this bizarre, and I hope that our next 
group of witnesses is a little more clear.
    I do want to say that both of you indicated the President 
has asked you to engage with Congress on this. To my 
knowledge-- 
I am the ranking member of this committee, and, along with 
other members on this committee, have expressed interest in the 
AUMF for some time. I have had no reachout from the 
administration. My guess is, the chairman has not. I would love 
to know if Tim or anybody else has. I know everybody's 
expressed concern.
    So, that is another line of hollow comments from this 
administration. You have reached out in no way to talk to us 
about refining this. I understand you guys want to refine and 
replace some-- 
or repeal--refine and repeal. And I do hope, at some point, you 
will define what that is. But, this is a hearing that is not 
particularly gratifying, and I do look forward to talking to 
you more in the future.
    Mr. Preston. Sir, we look forward to engaging with you and 
the committee and the other committees, as well. I will say, 
since the President's speech, the administration has devoted a 
great deal of energy to focusing on the drawdown in Afghanistan 
and what the mission and presence will be there, to redouble 
the effort to clear detainees from GTMO toward the closure of 
that facility, implementation of policy guidance concerning 
counterterrorism operations outside of Afghanistan. We have 
tried to be in continuous dialogue with congressional 
committees on that, including on the BSA and such. And those 
are the precursors to focusing on possible repeal and, in the 
meantime, refinement of the AUF.
    And we have made progress, particularly I can speak for we 
agency lawyers, in focusing on what sort of legal regime--what 
sort of future legal framework might govern. And we very much 
look forward to engaging with the committee and other 
committees on that when the administration is prepared to 
engage in that discussion in earnest.
    But, a good deal of this is premised on a finalization of 
what the circumstances, the mission and presence, in 
Afghanistan will be. And that still remains to be finalized.
    Senator Corker. Mr. President--Preston--I do not know why I 
keep calling you ``Mr. President.''
    Mr. Preston. I will try not to get used to it.
    Senator Corker. Yes. [Laughter.]
    That last statement, about waiting to see what we are going 

to do in Afghanistan after this Presidential election, is one 
of the 
most bogus, lacking-of-substance comments I have ever heard 
before this committee. It has nothing--nothing to do with this 
AUMF. Nothing.
    And I have to tell you, Mr. Chairman--I know we were 
involved in a discussion last night--I think the administration 
is totally unprepared to discuss this issue, totally unprepared 
to decide how many troops we are going to have in Afghanistan, 
continue to hide behind this Presidential race that is taking 
place in Afghanistan. We all know what the outcome is going to 
be.
    And I just want to say that you discredit our country with 
statements like you just made, that we are waiting to see what 
we are going to do in Afghanistan to determine whether--or what 
an AUMF needs to look like. So, I am very disappointed in your 
testimony. I am disappointed in the White House's inability to 
deal with substance, but to continue to deal with the optics of 
the way things are going to look. And I do look forward to that 
engagement, whenever it occurs. It has not occurred in a long, 
long time.
    The Chairman. Before I turn to Senator Kaine, I think Mr. 
Preston's comment is not necessarily--the way you took it is 
not necessarily the way I took it, in terms of looking at an 
overall AUMF. I actually have a line of questioning, but I 
wanted to turn to other members before, but I will want to come 
back to, specifically, on Afghanistan that might be, I think, 
what was meant.
    I do want to just ask one thing, the prerogative of the 
Chair, before I turn to Senator Kaine so I do not lose the 
train of thought.
    Basically, to now, what I hear is that there is no reason 
why the administration would oppose the repeal of the 9/11 AUMF 
totally, because you basically say the President has all the 
authorities, notwithstanding the AUMF.
    Mr. Preston. Mr. Chairman, I think that is precisely the 
task that the President's put before us in his May NDU speech, 
which is to examine that question, whether and what would be 
appropriate in the way of refinement and ultimate repeal of the 
statute. We are not here today calling for the immediate repeal 
of the statute.
    The Chairman. No, I know you are not calling----
    Mr. Preston. We are here----
    The Chairman [continuing]. For it, but your answers, so 
far, to both myself and the ranking member, would indicate that 
there is no--there is a view that, really, you have all the 
authorities, constitutionally and otherwise, outside of the 
AUMF.
    Mr. Preston. I think what I am trying to address is, in 
terms of fundamentals and the fundamental ability to protect 
our country against imminent threat of attack. That is not to 
say that there are not pros and cons, advantages and 
disadvantages to having a statutory authorization versus 
relying on the President's authority. That is precisely what we 
are working through now, with the President's initiation. We 
are looking forward to engaging with the committee.
    The Chairman. I appreciate that both of you want to 
preserve, to the maximum degree possible, all Presidential 
authorities. I get that. I understand that. But, we are trying, 
in a good-faith effort here, to actually be helpful, not 
harmful.
    Senator Kaine has been very involved in this issue, and I 
look forward to his questions.
    Senator Kaine. Thank you, Mr. Chairman.
    And, to the witnesses, these are hard questions, but they 
are not ``gotcha'' questions, because we are trying to figure 
out what to do with a law that Congress passed. And I have a 
number of concerns about the AUMF. Congress put in it no 
temporal or geographic limitation. Congress did not put such 
limitations in the AUMF. Administration witnesses testified 
last year before the Armed Services Committee, opined pretty 
blithely that the war, so declared, would likely last another 
25 or 30 years. I do not think that is what Congress intended.
    I have concerns about the breadth of the definition that 
both administrations, the Bush and Obama administrations, have 
used about the associated entities to al-Qaeda that could be 
targeted.
    I have concern about allowance of military action against 
those who intend harm against coalition partners, which is a 
huge group of partners. That was not part of the AUMF language.
    And I have some concern that Congress rejected a notion of 
preemptive war in drafting the original AUMF, but the 
interpretation, especially of the ``coalition partners'' and 
``associated entities'' phrases, have essentially allowed 
preemptive action in contravention to what Congress originally 
intended.
    But, to my colleagues, this is something that I think only 
we can solve, because, as we have heard from administration 
witnesses in the Armed Services hearing last year, an Executive 
is comfortable with a carte blanche. Why would they not be 
comfortable with a carte blanche? And they are not going to 
move, I do not think, as expeditiously to rein in a carte 
blanche as we probably need to. So, if there is going to be 
action taken here, it is up to Congress to take it. And of 
course we want thoughts and guidance and opinions from the 
administration so that we take the right action, not the wrong 
action.
    If a bill was introduced today--you have indicated that the 
administration supports the repeal of the Iraq AUMF--if a bill 
was introduced today to repeal the 9/14/01 AUMF, would the 
administration's position be: support, oppose, or ``I do not 
know''?
    Ms. McLeod. As of today, Senator, I think the answer is, we 
do not know.
    Senator Kaine. Is that fair, Mr. Preston?
    Mr. Preston. What I would say, Senator Kaine, is that the 
prospect of repealing the AUMF is precisely what the President 
has functionally asked us to do, and that the administration 
wants to engage with Congress to decide.
    Senator Kaine. So, I--and I follow that, but the----
    Ms. McLeod. And----
    Senator Kaine. Please, Ms. McLeod.
    Ms. McLeod [continuing]. If I could just say. And I think 
we are not here to say that it should be repealed today, 
although it is clear that that is the President's ultimate 
goal.
    Senator Kaine. Well, so I asked this question because the 
President did suggest that we should engage around these 
questions, in a speech that he gave in May have 2013. That is 1 
year ago. So, as of today, 1 year later, if a bill was 
introduced to repeal the AUMF, the position would not be 
``support,'' and the position would not be ``opposed''; in your 
testimony, the position would be ``I do not know what the 
administration's view would be about such a proposal.'' Is 
that--Ms. McLeod, that was your testimony.
    Mr. Preston.
    Mr. Preston. We did not come here this morning equipped to 
answer that question.
    Senator Kaine. Okay. Let me ask this. What is the United 
States doing right now of importance that it could not do 
without the AUMF?
    [Pause.]
    Senator Kaine. So, let me give you some--well, please, 
answer, and then I have some example questions.
    Mr. Preston. Well, I think as we discussed earlier, in 
terms of--the AUMF provides broad authority to use force 
against al-Qaeda, the Taliban----
    Senator Kaine. Can I--that covers ground already covered. 
What is the United States doing right now that it could not 
do----
    Mr. Preston [continuing]. I think----
    Senator Kaine [continuing]. If there was no AUMF?
    Mr. Preston [continuing]. In terms of the authority to use 
military force in order to address an imminent threat of armed 
attack against this country, that the President's 
constitutional authority would enable him to----
    Senator Kaine. Right. So, that is what he can do. But, what 
could we not do if there was no AUMF?
    Let me be more specific. Is there ample authority, without 
the AUMF, for follow-on U.S. military force in Afghanistan? If 
the AUMF did not exist, is there ample legal authority for 
follow-on U.S. military force presence in Afghanistan?
    Mr. Preston. I think, sir, that that would have to be 
addressed with Congress. Right now, we have that authorization. 
Without that authorization, depending on the nature and scope 
of the U.S. mission post-2014, we may well need to engage with 
Congress, in terms--under the war powers process or otherwise.
    Senator Kaine. So, the absence of an AUMF could affect the 
legality of United States presence in Afghanistan.
    Let me ask you a second one. Would the absence of the AUMF 
affect the carrying out of CT operations by the Department of 
Defense? I know there are separate statutes dealing with CT 
operations by other agencies, but would the absence of an AUMF 
affect the carrying out of CT operations by the Department of 
Defense?
    Mr. Preston. Not in terms of our ability to address 
imminent threat of armed attack.
    Senator Kaine. So, there would not be a worry about the 
absence of an AUMF affecting DOD's CT operations.
    Mr. Preston. Not for that purpose. Now, in terms of the--
the fact is that our authority on which we have relied up until 
now has been the AUMF. So, we would have to reexamine the 
impact of its repeal on our ongoing operations.
    Senator Kaine. So, there would be some potential effect on 
ongoing operations, in the absence of an AUMF, that you would--
--
    Mr. Preston. There are certain----
    Senator Kaine [continuing]. Want to engage with Congress--
--
    Mr. Preston. And certainly--and that is, I think, what--I 
know for a fact--is what we are focusing on now within the 
administration, and looking forward to engaging with you, the 
committee, and other committees, in exploring.
    Senator Kaine. Just so you will know, when you say, 
``looking forward to engaging,'' what we hear over here is--
this is what engaging is. You know, we are--and so, when we 
come to a hearing and we are talking and we are told that we 
are--we can look forward to having somebody engage with us, it 
is like, ``That is why we are here. That is why we are doing 
the hearing. We are engaging.''
    Let me ask a third one. Would the absence of an AU--and so, 
we do not like it to be deferred to a day that we may never get 
to. We are trying to do this right now. Would the absence of an 
AUMF raise legal questions about the continued detention of 
detainees at Guantanamo?
    Mr. Preston. Do you want to take that?
    Ms. McLeod. We are holding the detainees, pursuant to the 
Law of War. So, as long as we are in an armed conflict with al-
Qaeda, I think we would have authority to continue to hold 
them.
    Senator Kaine. Okay, so if----
    Mr. Preston. To answer----
    Senator Kaine. Mr. Preston.
    Mr. Preston [continuing]. Further answer, the AUMF does 
provide domestic authority for those purposes. So, I think, in 
the absence of an AUMF--and this is one of the issues that we 
are looking at--we would have to focus on what its impact is on 
our ability to continue to hold detainees.
    Senator Kaine. So, if I could just summarize, what I have 
heard is, the administration does not have a current position 
about whether it would support an AUMF repeal. The issues of at 
least concern for examination, say, the administration believes 
it has the ability to counter imminent threats against the 
United States under constitutional powers or international laws 
of war. But, the absence of an AUMF would require some 
reexamination of DOD powers for certain CT operations, the 
continued detention of detainees at Guantanamo or domestically, 
the follow-on status of U.S. forces in Afghanistan. Those would 
be three areas where the absence of an AUMF would cause at 
least good lawyers to say, ``We are not yet sure whether we 
want to repeal the AUMF.''
    Mr. Preston. Senator Kaine, those were all issues that are 
proper considerations and part of the mix as we focus on what 
the legal framework should be in the future, after Iraq and 
Afghanistan.
    Senator Kaine. See, and this is helpful--and I will 
conclude, Mr. Chair--because if there is an effort to refine, 
we have to refine around what are the concerns. Carte blanche 
is a bad thing. Time to get done with the carte blanche grant 
of authority to the Executive. But, we do--we would want to 
come up--have a meaningful discussion about the particular 
areas--and we have just identified three--where there is at 
least a need to examine what might happen if the status quo 
were to change and there would be no AUMF.
    Thank you, Mr. Chairman.
    The Chairman. Thank you.
    Senator Rubio.
    Senator Rubio. Thank you, Mr. Chairman.
    Mr. Preston, as I think you would--others have also ceded 
to in their statements and--again, al-Qaeda has changed--the 
nature of al-Qaeda has dramatically changed over the last 
number of years. It is now spread to a number of different 
countries. Just since 2012, when we heard al-Qaeda was on the 
run, we have actually seen them establish safe havens in a 
number of places, including Syria. We are hearing reports, of 
course, of Iraq. Libya has become increasingly unstable. So, 
this is an evolving and, in many ways, more dangerous threat 
than it used to be.
    So, let me ask you. Under the administration's 
interpretation of the 2001 AUMF, which of these affiliates are 
we currently authorized or able to use all necessary and 
appropriate force against? Which of the al-Qaeda affiliates are 
we authorized to use force against under the existing AUMF?
    Mr. Preston. Pardon me. Senator Rubio, I believe that the 
administration has pursued a policy of being as transparent on 
matters of national security as national security will permit. 
In this particular area, I think that we have been very clear 
in stating, for the Congress and publicly, where it is that 
U.S. forces are using military force under the AUMF, against 
whom, and on what basis.
    My prepared statement, my oral statement today, it clearly 
states the groups against which the United States is currently 
operating and which the United States military is currently 
applying military force under the authority of the AUMF.
    Senator Rubio. I guess--the reason why I am asking that 
question is because the nature of al-Qaeda has changed since 
the AUMF was first passed. It has spread to different places. 
As I understand what you have said here today, the 
administration has not taken a position as to whether the 
existing AUMF should be expanded or revised to take into 
account the changing nature of the threat.
    Mr. Preston. Well, the President has made very clear that 
he would not support expanding the existing AUMF, but he has 
also made very clear that he fully supports the effort to 
examine the AUMF toward its refinement to ensure that it is 
narrowly tailored to meet that evolving threat.
    Senator Rubio. Does he not support expanding the AUMF 
because he believes he does not need that authority, he already 
has it, or is it because he simply wants to bring to an end 
this conflict and he believes that the war against al-Qaeda is 
winding up?
    Mr. Preston. I think he has explained it in terms of 
wanting authority toward a series of persistent, targeted 
efforts to dismantle specific networks of violent extremists 
that threaten our country and getting away from a regime in 
which there is unbound powers more suited for judicial armed 
conflict between nation-states. So, I think that----
    Senator Rubio. But, I guess the problem that I have is, I 
am trying to understand, Is it because he believes that the 
existing authorities he now has--because al-Qaeda continues to 
evolve and find new havens in which to operate from, and we 
cannot necessarily predict where that is, 10 years out, 5 years 
out, 3 years out. So, what I am trying to understand, from a 
legal perspective, is, Is it his believe that, under his 
inherent powers as Commander in Chief, he does not need the 
authority of the Congress to go after that in--or--and 
therefore, that is why we no longer need to expand the AUMF, or 
revise it to account for that new threat?
    Mr. Preston. Sir, I think his beliefs are best stated in 
his public statements, and, most particularly, the NDU speech 
and the State of the Union. What----
    Senator Rubio. Which State of the Union? Because in one 
State of the Union, he said that al-Qaeda was on the run and 
that--basically, he made it sound like that they were incapable 
of posing an ongoing threat. I think now he would not say that, 
today, given the realities that we have now seen emerge.
    Mr. Preston. Well, I was referring to the most recent State 
of the Union. But, my point is that we are engaged in an effort 
at addressing precisely the questions that you are posing, in 
terms of what future legal framework is best suited to 
adequately meet the terrorist threat as it has evolved, and 
narrowly tailored to meet that threat, and not granting unbound 
powers of all-out warfighting of the sort you get between 
nation-states.
    Senator Rubio. But, going back to this analogy that you are 
using, of nation-states, it is, in fact, a reality, in the 21st 
century, that--one of the challenges we have is that these most 
dangerous conflicts that we now find ourself in are not against 
nation-states, they are against nonstate actors who do not 
necessarily have the confines of a nation-state, but they 
present a very serious risk to the United States. And so, I 
guess my problem with the terminology that you keep using, in 
terms of pulling us away from conflicts that may look like the 
ones we once had against nation-states, is that, in essence, 
that is the modern threat, is these--in addition to nation-
states that pose a threat, are these nonstate actors that are a 
very serious threat.
    But, I want to pivot back to another point that I know is 
of interest to some members of the committee, and that is the 
following. We have seen open-source reporting in evidence, for 
example, that in Syria there are a large number of foreign 
fighters, including many Westerners. And I read an open-source 
reporting article today that estimated that as many as 100 
Americans may be involved with jihadist groups within Syria. 
What authorities does the United States have to target 
individual American--even if they happen to be American 
citizens who are affiliated with radical groups such as these 
and are actively participating in their efforts to target 
America and America's interests?
    Ms. McLeod. Senator Rubio, the United States has the 
authority to target individuals, including Americans, who pose 
an imminent threat of armed attack to our country. And it is, 
of course, a very grave matter to decide to use lethal force 
against a U.S. citizen, but, in some cases, it has proven to be 
necessary.
    Senator Rubio. Ms. McLeod, I wanted to ask you, actually--
in your view, and in the view of the State Department, is al-
Qaeda and its affiliates today--are they a widespread threat 
against America or are they a targeted threat against America? 
Are they just isolated groups that from time to time are 
problematic, or is this part of a larger growing, evolving 
problem that, quite frankly, at this stage, is unpredictable 
but seems to trend toward growth?
    Ms. McLeod. I think it is fair to say, as I believe the 
President said in his NDU speech, that, while core al-Qaeda has 
been gravely diminished, there is an evolving threat with 
respect to affiliates of al-Qaeda who are located in various 
parts of the world.
    Senator Rubio. Is it not fair to say that, instead of one 
core 
al-Qaeda, we now see emerging eight or nine core al-Qaedas, 
just because they are now dispersed into different areas? And, 
in addition to al-Qaeda, by the way, they are not the only 
radical Islamic threat that the West faces--al-Qaeda in--as we 
define it. There are also other radical groups out there that 
we know pose a threat to American interests around the world, 
and even potentially in the homeland, right?
    Ms. McLeod. Yes, that is correct. And I believe--and some 
of those would not be covered by the AUMF. But, as I believe we 
said, we believe the President has authority to proceed against 
those groups if they, indeed----
    Senator Rubio. So, just to understand the position, there 
are additional groups, outside of the Taliban and al-Qaeda, 
that pose a serious threat to our national security, they are 
not covered under the AUMF, but you do not believe that we need 
to revise the AUMF to cover them, because you have existing 
constitutional authorities that allow you to target them if, in 
fact, they pose that threat.
    Ms. McLeod. I did not say that we have determined that 
there are other groups that pose an imminent threat to the 
United States. I said we would have the authority to proceed 
against them if we, indeed, made those determinations.
    Senator Rubio. Without an AUMF expansion.
    Ms. McLeod. Yes.
    The Chairman. Senator Johnson.
    Senator Johnson. Thank you, Mr. Chair.
    I am finding this hearing quite confusing. I mean, it is 
true that, on May 23, 2013, President Obama did declare the 
global war on terror over? That is a correct statement, true? 
Does he believe that? I mean, you are working in this 
administration. Do you believe President Obama believes the 
global war on terror is over?
    Mr. Preston. Well, I guess I would just point out--I 
believe the view of the administration is that we are engaged 
in armed conflict. We are engaged in armed conflict with al-
Qaeda, with the Taliban, and with associated forces. That 
conflict continues.
    Senator Johnson. So, really, nobody in the administration 
really believes the global war on terror is over. I mean, we 
are still involved in conflict.
    Mr. Preston. I think the administration has not embraced 
the characterization of a global war on terror as if the enemy 
here were a religion or a set of techniques----
    Senator Johnson. So, it is just--semantically, we are not 
in a global war on terror, we are just in a war against 
terrorist elements. Is that the----
    Mr. Preston. We are at war with al-Qaeda, the Taliban, and 
associated forces, and we are actively involved in efforts to 
detect and address threats from terrorist elements otherwise.
    Senator Johnson. Do you believe the AUMF covered the 
current situation?
    Mr. Preston. I think the AUMF has served well in providing 
full authority to use military force against our enemies in 
those conflicts.
    Senator Johnson. So, why would the administration not have 
a position of whether or not they want the AUMF to continue or 
they want it repealed?
    Mr. Preston. I think the administration, through the 
President, almost a year ago, has clearly stated a policy 
favoring refinement and, ultimately, repeal of the statute. 
That, I do not think translates into, necessarily, immediate 
repeal of the statute.
    Senator Johnson. So, has the administration proposed any 
refinement or any redefinition of the AUMF? I mean, have they 
provided us language, in terms of what they think they need to 
handle the current situation?
    Ms. McLeod. No, Senator. We have not. We need to engage 
with you all to get your ideas and take them back. And we are 
actively----
    Senator Johnson. Well, like Senator Kaine said, this is 
engagement. Why would you not lay down a proposal so we could 
evaluate it? I mean, why will the administration not--as 
President of the United States, I mean, he is in charge of 
foreign policy. He is the Commander in Chief. Why would he not 
bring us the language he needs to prosecute this evolving war 
on terror? I mean, that is what I would like to see. I do not 
think it is my job. I am not an attorney, I do not understand 
the complexity of these things. I would like to see the 
administration propose what it needs in a refined Authorization 
of Use for Military Force.
    The Chairman. Senator Johnson, if I might add, you know, it 
seems that the President, in May, established an objective, if 
you will, the repeal and--the refinement and, ultimately, the 
repeal. He has set us about a course to focus on and develop a 
future legal framework for the use of force.
    Senator Johnson. Okay. Oh, good, good. So, we are on a 
course.
    Is he going to provide any kind of roadmap, in terms of 
what he needs? He is the Commander in Chief. He is the one that 
needs the authorization. Is he going to come to Congress and 
let us know what he needs to stay within his constitutional 
powers to protect this Nation? Is he going to provide a 
proposal that we can review and that we can debate? Or are we 
supposed to come up with one? I mean, what is the process going 
to be?
    Mr. Preston. I think, as he said, in May have last year, 
that he envisions the administration's engaging with Congress, 
with this and other----
    Senator Johnson. That was a year ago.
    Mr. Preston. I understand that.
    Senator Johnson. He declared the war on terror over, and 
now we are having a hearing, and there is no proposal, there is 
no language, there is really nothing, that I am hearing in this 
setting, in terms of what he wants, what he needs. When are we 
going to get that? How do we get to that point? Where does the 
engagement actually occur, then?
    Mr. Preston. The way I would describe it, sir, is that he 
has established an objective, a vision, if you will, that we 
formulate a post-Iraq and -Afghanistan legal framework. He is--
--
    Senator Johnson. So, who is going to do that?
    Mr. Preston. He did not establish that as an immediate 
tasking, but as something that we need to take on deliberately 
and at the--and then engage with Congress----
    Senator Johnson. So, why did he declare the war on terror 
over, a year ago? I mean, again, this makes no sense to me.
    Can you--again, I am not an attorney, I am relatively new 
to this process, here--can you define an ``imminent threat''? I 
mean, if we would do away with the AUMF, if we did not have one 
on the books--and I believe that the President does have the 
authority to protect this Nation--what is an ``imminent 
threat''? Can you explain that, in layman's terms? How is that 
made operational?
    Ms. McLeod. Senator Johnson, most obviously an individual 
who is planning a specific attack against U.S. persons would be 
an ``imminent threat'' against the United States. And a person 
that is hard to articulate all of the factors that would go 
into a decision of whether an individual poses an imminent 
threat, but I want to read to you from what the Attorney 
General said in explaining this concept, because the Justice 
Department has done some long and hard thinking on this.
    And he explained that the determination of whether an 
individual presents an imminent threat may incorporate 
consideration of the relevant window of opportunity to act 
against that individual, the possible harm that missing the 
window could create, and the likelihood of heading off further 
disastrous attacks against the United States. And then he said, 
with respect to the kind of terrorist threat that we are facing 
today, ``We learned, on 9/11, that al-Qaeda has demonstrated 
the ability to strike with little or no notice, and to cause 
devastating casualties. Its leaders are continually planning 
attacks against the United States, and they do not behave like 
a traditional military, wearing uniforms, carrying arms openly, 
or amassing forces in preparation for an attack. Given these 
facts, the Constitution does not require the President to delay 
action until some theoretical end stage of planning when the 
precise time, place, and manner of an attack become clear. Such 
a requirement would create an unacceptably high risk that our 
efforts would fail and that Americans would be''----
    Senator Johnson. Okay, listen. I completely understand this 
is an amorphous, evolving, incredibly difficult threat. And I 
realize the standards are quite amorphous, as well. I guess 
what I am asking for is that the administration--this President 
lead, that he comes and proposes to us what language, you know, 
what he needs to actually carry out his constitutional duty of 
protecting this Nation. That would be the way I would like to 
see this administration engage with us.
    Thank you, Mr. Chairman.
    Ms. McLeod. Senator, we will certainly take that back.
    The Chairman. Let me just, before I call the next member-- 
I think, in fairness to these witnesses, policy is not their 
purview. Legal analysis is. And it is in that context that I 
invited these witnesses to appear before the committee, to get 
a legal analysis of the issues that surround the President and 
any potential AUMF. Members, of course, are free to pursue 
policy discussions. But, if I wanted to hear the policy of the 
administration today, I probably would have invited a different 
set of witnesses.
    Senator Corker. Since that comment was made----
    The Chairman. And I may do that in the future.
    Senator Corker. Okay. I would just like to say, though, the 
fact is that what the witnesses have said is, they do not know 
what current operations rely on the AUMF. That is what they 
have said. So, in fairness, they may not be speaking to policy, 
but they cannot even answer a question as to what operations 
rely on what authorities. So----
    The Chairman. Well, I am referring to the broader questions 
that have been raised here about, What does the administration 
view as the AUMF that they would desire? I do not think that 
that is in the bailiwick of the witnesses before us. In that 
context.
    But, Senator Murphy has deferred, for the moment. So, 
Senator Flake, you are up next. And you are going to defer to 
Senator McCain.
    Senator McCain.
    Senator McCain. Thank you.
    And I appreciate the deference that Senator Flake gives to 
me, and I am sure it will be short-lived over time. [Laughter.]
    I thank you, Mr. Chairman, and I thank my friend.
    Mr. Preston, in testimony in the Senate Armed Services 
Committee, the Director of National Intelligence, James 
Clapper, and the Director of the DIA, agreed that al-Qaeda and 
its associated forces are not on the run and not on a path to 
defeat. Subsequent testimony in the Armed Services Committee, 
General Austin, General Rodriguez, and others, stated that the 
threat posed by 
al-Qaeda and its associated forces is increasing, not 
decreasing, in their geographic areas of responsibilities.
    Do you agree with our senior military and intelligence 
leaders, that al-Qaeda and its associated forces have not been 
defeated?
    Mr. Preston. As General Counsel----
    Senator McCain. You know, it is a fairly straightforward 
question. Do you agree that--with our senior military and 
intelligence----
    Mr. Preston. My lane is the law, so I would defer to the 
senior intelligence and military----
    Senator McCain. So, you do not want to answer.
    Mr. Preston [continuing]. On matters of intelligence and 
operations.
    Senator McCain. I see. Working over at the Department of 
Defense, you would not have a view of that, even though you 
told this committee, at your confirmation, that you would 
answer questions, if asked.
    Mr. Preston. I would just----
    Senator McCain. In your personal opinion, do you think that 
the DOD counterterrorism operations, and those that conduct 
them, are better served by maintaining the 2001 AUMF unchanged, 
repealing, or updating it in some way, Mr. Preston?
    Mr. Preston. Senator McCain, that is precisely the set of 
issues that we agency lawyers in the administration are focused 
on and that the President, I think, has foretold engaging with 
Congress on.
    Senator McCain. Again, a nonanswer. So, according to your 
answers to previous questions, either with or without AUMF 
authority, the United States can attack those that pose a 
imminent threat to the United States of America. Is that 
correct?
    Mr. Preston. I believe the legal authority is there, yes, 
sir.
    Senator McCain. I see. And would you say that the people 
who attacked our Embassy--our consulate in Benghazi are a 
terrorist organization?
    Mr. Preston. I understand that they are, yes, sir.
    Senator McCain. So, therefore, would we have the authority 
to strike, with a drone, members of that organization that 
attacked our consulate and killed four Americans?
    Mr. Preston. I think, if and when a concrete situation is 
presented, the judgment is that that group presents the 
requisite threat, then there is that authority. Or if that 
group is determined to fall within the AUMF, there would be 
that authority.
    Senator McCain. So, you just agreed that they were part of 
a terrorist organization, right?
    Mr. Preston. Yes, sir.
    Senator McCain. So, if they are part of a terrorist 
organization, according to the interpretation of the AUMF, then 
is it your view the President has the authority to attack them 
and eliminate them?
    Mr. Preston. I think there are multiple potential sources 
of----
    Senator McCain. I am asking, in your view, does the 
President, under the AUMF and the authorities that you say he 
has, do they have a legal right to strike members of the 
organization that committed the attack on Benghazi?
    Mr. Preston. There is the authority to use military force 
if they present an imminent threat and/or if they qualify as an 
associated force of al-Qaeda. So, the answer----
    Senator McCain. I just asked you if they did, and you said 
yes.
    Mr. Preston. Well, sir, that depends on the particular 
factual circumstances, and it is a judgment that is made on 
that basis. But, the answer----
    Senator McCain. Whew.
    Mr. Preston. I think the short answer is that our 
government is committed to applying all lawfully available 
instruments of national power. That includes law enforcement 
authority----
    Senator McCain. I am asking, specifically, about a 
situation where four Americans were killed, that was carried 
out by a terrorist organization--that has been the conclusion--
whether the President of the United States, in your legal 
opinion, has the authority to strike these people and eliminate 
them. Now, that is a pretty straightforward question.
    Mr. Preston. And I think I have tried to answer it as 
straightforwardly----
    Senator McCain. Then the answer is ``yes'' or ``no.'' Does 
he have the authority, or not?
    Mr. Preston. I believe----
    Senator McCain. You are not being straightforward, sir.
    Mr. Preston. There are two sources of authority, and----
    Senator McCain. I am asking whether he has the authority, 
not the sources of authority.
    Mr. Preston. And that requires a determination as to----
    Senator McCain. That is a third nonanswer. Nicely done. You 
are----
    Mr. Preston. I have tried my best.
    Senator McCain. It is remarkable.
    So, does the--the President said he wants to refine and, 
ultimately, repeal the AUMF's mandate. That was his speech at 
the--President's speech in the National Defense University. 
Does that mean that, if the AUMF were repealed, that that would 
mean that the detention facility at Guantanamo would be, then, 
closed?
    Mr. Preston. I think that is a critical issue that is in 
the mix, inasmuch as the AUMF is a domestic source of authority 
for----
    Senator McCain. I am asking, again, Does that mean that the 
detention facility at Guantanamo would then required to be 
closed if the AUMF were, as the President desires, ultimately 
repealed?
    Mr. Preston. It would create a substantial question about 
our ability to do long-term detention, which is what is going 
on at the Guantanamo facility.
    Senator McCain. I am wasting the committee's time.
    The Chairman. Senator Murphy.
    Senator Murphy. Thank you very much, Mr. Chairman.
    This morning, I have, unfortunately, missed part of the 
hearing. I was under the wonderful care of a constituent of 
Senator Kaine's, getting a root canal. And it sounds like the 
experience of the witnesses and perhaps some members of this 
committee may have been more or less pleasant than mine--
experience this morning. But, I am glad to be here.
    And what has been explained to me is that the panel has 
given a pretty robust defense of the administration's Article 2 
powers. And I guess if I was sitting in your seat, I would 
probably do the same, or some version of the same, with maybe 
some more specific answers as to the hypotheticals that were, I 
think, pretty clear to be posed today.
    So, let me ask you a broader question. I think there is a 
reason why it is Article 2 that lays out the administration's 
powers, and not Article 1. I think there is a reason why we are 
all subject to Article 1, and there are very specific powers 
given to Congress with respect to foreign affairs in Article 1: 
the power to declare war and the power to raise armies.
    And so, I am just going to ask you--you are both lawyers, 
you both have studied both articles well--I am just going to 
ask a very broad question, which is, In your mind, where does 
Article 2 powers end and Article 1 powers begin? What is your 
rendering of what is left in Article 1 if we understand the 
broad rendering of Article 2 powers that you have explained 
today? Tell us what--instead of explaining what your role is, 
let me flip it. Explain to us what our role is.
    Mr. Preston. Senator, let me start with a very general 
proposition, which is the strongly held belief that our 
government works best, and our Nation is strongest, in matters 
of military force and war, when both of the political branches 
are working together. So, the short, and perhaps most 
important, answer is, both Congress and the Executive need, and 
ought, to work together on matters of military force and war.
    Beyond that, it is, I think, very much a part of the 
President's initiative, in May at the NDU speech, in inviting 
dialogue with Congress to ensure that the administration is 
engaging with Congress as we seek to develop that future legal 
framework.
    Congress obviously enacted the 2001 AUMF and provided the 
congressional imprimatur for the use of force in that setting, 
and we very much look forward to engaging with Congress as we 
seek to shape what that follow-on or future legal framework 
will look like.
    Senator Murphy. Ms. McLeod.
    Ms. McLeod. Senator Murphy, I do not think I am going to be 
able, even though I am a lawyer, to give you a precise 
delineation of authority between the Congress and the executive 
branch in the area of the use of military force. I think this 
has been the subject of much debate in the scholarly world, and 
I think that the War Powers Resolution was enacted to try and 
achieve a mechanism under which we could consult with the 
Congress before using force, and provide reporting, and, if 
necessary, get authorization.
    Senator Murphy. You clearly believe that if an individual 
has made a threat against the United States and is carrying it 
out, you have existing authority, with or without the AUMF, to 
pursue that individual. Correct?
    Ms. McLeod. If they pose an imminent threat, yes. But, I 
would point out, there are other constraints that can come into 
play. If that individual is in a different country, there are 
certain considerations of sovereignty that we have to address. 
So, you have to consider whether you can get consent; or, if 
not, you have to consider whether that country is unable or 
unwilling to address the threat to us, in which case we would 
still feel we were able to----
    Senator Murphy. But, those are considerations separate and 
aside from whether or not you need consent from Congress.
    Ms. McLeod. Yes.
    Senator Murphy. If an organization has, in your mind, 
constituted an imminent threat, is there any limitation on the 
size of that organization that would require you to come to the 
Congress, so long as you had made a determination that they 
posed an imminent threat?
    Ms. McLeod. No, I do not--I do not think so.
    Senator Murphy. A nation harboring an entity that poses an 
imminent threat, in coordination with that entity that poses an 
imminent threat, if that country has not, itself, expressed a 
threat to the United States, but is harboring an entity or 
organization that poses an imminent threat, in order to pursue 
conduct against that nation, do you need prior congressional 
authorization?
    Ms. McLeod. Well, I would say that our actions taken in 
self-defense always have to be necessary and proportionate. So, 
we would have to go through that analysis before considering 
what action, if any, we could take against a state that 
harbored terrorists. And we would have to consider--I think I 
am--we would have to think about whether that--whether 
individuals in that state were--or the government of that 
state--actually posed an imminent threat.
    Senator Murphy. And there would not necessarily be a time 
limitation on it.
    So, let me get this straight. So, you are suggesting that 
the state, itself, would have to pose an imminent threat, not 
simply harboring or providing or hosting an organization that 
provides an imminent threat.
    Ms. McLeod. I think I need to think about your question 
further. I cannot give you a definitive answer.
    Senator Murphy. I will--and my line of questioning there-- 
I mean, to the extent that we--I will express the same level of 
frustration that others on the panel have faced here to--that 
is a critical question--in part, because, you know, we have 
dealt with that question in real terms over the last decade. We 
had a nation that harbored a terrorist group that, arguably, 
did not present an independent threat to the United States. In 
that case, there was an authorization of military force.
    But, a suggestion that the Executive can undertake an 
action against a sovereign, independent nation simply because 
they have made a decision to harbor that organization, and not 
have to come to the United States Congress, with war-making 
authorities, for that authorization, that is--I would love a 
clear ``no'' to that question. I would love a clear indication 
that, if a nation has not presented an imminent threat and is 
simply harboring an organization, that, in order to wage war 
against a sovereign nation, you would have to come to the 
United States Congress for authorization.
    Ms. McLeod. Senator, I would note that we did just that in 
seeking----
    Senator Murphy. I understand you did, but to the--but, it 
would be nice to hear, very clearly, that your interpretation 
of the law is that you are always required, in that 
circumstance, to come to the Congress.
    Thank you.
    The Chairman. Senator Flake.
    Senator Flake. Thank you.
    I planned, but I believe it was already asked by Senator 
Corker, just, in the absence of--if the AUMF were to sunset 
tomorrow, what advice would you give to the President, in terms 
of what activities we are involved in around the world that we 
would need to cease. And I understand that you are--you say 
that--none of them, that you would not offer any advice to 
disengage or to not continue anything that is being done. Is 
that----
    Mr. Preston. I think, Senator, what I would say is that the 

impact of that on operations in Afghanistan, against al-Qaeda 
elsewhere, detention operations--those are all things that we 
would need to examine in framing whatever future follow-on 
legal framework would be in place.
    The point we were making earlier is that, on the 
fundamental question of authority to take military action in 
order to address and protect the country from imminent threat 
of armed attack, that that authority does exist in the 
Constitution with the President, quite apart from the presence 
of a legislative authorization.
    Senator Flake. There has been quite a bit of talk of 
hypotheticals, here, what would happen here or there. Why do we 
not take an actual case, here. And I would like your 
explanation as to where the President got his authority.
    Let us take Libya. In the spring of 2011, was Libya a 
sovereign country?
    Ms. McLeod. Yes, it was.
    Senator Flake. Was there an imminent threat posed to the 
United States?
    Ms. McLeod. In the case of Libya, the U.S. took military 
action as a matter of international law, pursuant to an 
authorization by the U.N. Security Council, which has authority 
to take measures that are binding on states or can give 
authority to states to take action in order to address threats 
to peace and security.
    Senator Flake. So, not pursuant to any AUMF here. But, we 
took military action that was not under the auspices of the 
United Nations, though.
    Ms. McLeod. No, it was not under the auspices, per se, but 
the Security Council resolutions specifically authorized NATO 
and others to take the military action.
    Senator Flake. We took military action, though, independent 
of the United Nations, on our own. We put Osprey aircraft 
there, we needed to rescue a pilot later. So, this was not 
action that was pursuant to a U.N. Security Council resolution, 
was it not? This is action that we took independently, still.
    Ms. McLeod. I believe it was pursuant to the U.N. Security 
Council resolution, Senator.
    Senator Flake. But, right now we are moving troops to Italy 
to be closer to the situation in Libya. If we were to move in, 
what auspices would we be moving in now? I think we hear 
reports that four additional Osprey aircraft arrived overnight 
in Italy to join four B-52s and 200 marines that had been moved 
there last week. Libya, things are going south there pretty 
quickly. If we were to move into Libya and take some action 
there, would it be under--under what authority would it be?
    Ms. McLeod. Senator, I believe the troops that are in Italy 
are being positioned there in case our personnel at the U.S. 
Embassy need to be evacuated, which is a very standard----
    Senator Flake. Certainly.
    Ms. McLeod [continuing]. Operation that we----
    Senator Flake. Nobody would argue with that. But, 
additional action that was taken--that would be taken would--
would it be pursuant to some U.N. Security Council resolution 
or under the President's Article 2 powers or--certainly not 
under any AUMF that has been passed here.
    Ms. McLeod. Well, I am not aware that any sort of military 
action, beyond the possibility of going in and extracting our 
personnel, has been under discussion.
    Senator Flake. All right.
    Well, I said I share the frustration that others here have 
expressed that we were told that an additional--you know, that 
the President would like to refine the AUMF, and ultimately 
eliminate it. But, when asked what would change if the AUMF 
were absent tomorrow and we did not have it, then we do not get 
much of answer on what would change, in terms of any activities 
we are involved with now. So, it leaves Congress with not much 
direction from the administration as to what the administration 
really wants, here. So, it is just--it is a bit confusing.
    Thank you.
    The Chairman. Let me--I have a couple of other questions, 
and there may be one or two members who have some--let me--
look, I think part of our challenge, here, is that this area of 
the law is not fully defined. And so, that is--at least from my 
perspective--so, I think that is part of the challenge. But, I 
do want to clarify some things, or at least understand clearly, 
for the record, where you stand.
    In pursuance of Senator Flake's questions, our action in 
Libya was a humanitarian action, in a sense, maybe subject to, 
you know, a NATO action and maybe subject to some Security 
Council resolutions, but does it--is it your opinion that those 
authorizations of a NATO operation or a Security Council 
resolution allows a President, who is not responding to 
imminent threat, to circumvent the United States Congress, in 
terms of an authorization for the use of force? Because that is 
basically what I heard you say. And if I am wrong about 
understanding what you said, please correct me.
    Ms. McLeod. No, Senator, that was not what I was saying.
    The Chairman. Okay.
    Ms. McLeod. I was talking about----
    The Chairman. What did you say?
    Ms. McLeod [continuing]. International law authority for us 
to use force in that case.
    The Chairman. But, in international law authority to use 
force, that is what gives you the imprimatur to go act against 
a certain country. But, to use the forces of the United States 
even under that international law, would you not have to come 
to the Congress to get authorization to act? Especially when it 
is not an imminent-threat situation.
    Ms. McLeod. In the case of Libya, we did file a report, if 
not more than one report, under the War Powers Resolution, and 
we consulted with the Congress on the actions we were taking.
    The Chairman. The----
    Ms. McLeod. But, it is true, we did not seek prior 
authorization.
    The Chairman. Yes. And even under the War Powers Act, of 
course, there would be an action by the President, but, within 
a certain time period, there would have to be a response from 
the Congress. I am concerned, while I believe in Security 
Council resolutions to create international support in efforts 
and direction to intervene in the sovereignty of another 
country, I am still am concerned that, when we want to 
participate under such an umbrella, that there must be an 
authorization of the Congress to do so if it is not an 
imminent-threat situation.
    So, I would like you to all go rethink that and come back 
at some point, either you or policymakers, to define for us 
what your view is. It may not be my view, but I would like to 
hear what your view is.
    Let me ask you, Did the President need the authorization 
for the use of force, had he decided to act in the chemical 
weapons issue in Syria?
    [Pause.]
    Ms. McLeod. As you know, the President ultimately did 
decide that he would seek congressional authorization.
    The Chairman. I know he did. But, my question is, Did he 
need to do that, or do you believe he had the authorities, 
based upon what had transpired in Syria with Assad using 
chemical weapons against his people? Did he need authority, or 
did he not need authority? Did he have the authority to act, 
independent of the Congress?
    Ms. McLeod. Senator, it would be my view, but I--mine was 
not--I was not the one who made this decision. It would be my 
view that he would have the authority to act, but that it was 
prudent, as he did, to seek the authorization----
    The Chairman. You believe he had the authority act, 
notwithstanding.
    Now, that is not, per se, an imminent threat to the United 
States, as far as I can tell. It is certainly something I 
strongly supported giving the President the power for, as did 
most of the members of this committee. But, there was no 
indication, at least to my knowledge, that those chemical 
weapons would be used against U.S. citizens, U.S. forces, or 
whatnot. So, this is where we need to define what is the 
standard.
    Let me ask you a third question. And you can divvy up your 
responses, as may be appropriate, between your two respective 
roles.
    The United States plans to end its combat operations in 
Afghanistan by the end of the year. While the 2001 AUMF has 
been the primary basis in domestic law authorizing these 
operations, its authorization is not limited to operations in 
Afghanistan. Nevertheless, the end of combat operations in 
Afghanistan, and the absence of sustained combat operations 
under the 2001 AUMF in any other theater, will undoubtedly have 
implications for the continued use of this authority in other 
contexts. So, could you please describe for the committee what 
you anticipate to be the consequences, in terms of the limits 
of legal authority, of the end of Afghanistan combat operations 
in the following three areas: one, detention operations at 
Guantanamo Bay in Cuba; two, targeted killing operations 
against al-Qaeda and associated forces; and three, Defense 
Department counterterrorism operations, including relevant 
security assistance?
    Mr. Preston. Let me tackle that one, Mr. Chairman.
    The Chairman. Okay.
    Mr. Preston. Ms. McLeod can supplement, as appropriate. And 
let me address that, first, generally, and then specifically 
the areas you mentioned.
    The President has made clear that it is not in our national 
interest to remain on a perpetual wartime footing, and that 
this war, like all others, will come to an end. At the same 
time, while the United States military mission in Afghanistan, 
after 2014, is an important milestone, it does not necessarily 
mark the end of the armed conflict with the Taliban. Now, of 
course, as we seek to finalize what precisely the presence and 
mission in Afghanistan will be, we would better able to judge 
its impact on that armed conflict.
    By similar token, even when the conflict with the Taliban 
ends, that will not necessarily mark the end of the conflict 
with 
al-Qaeda. And it is in that context that we look at the three 
issues that you raised.
    First, I believe, was detention. The United States will 
continue to have legal authority to detain individuals from al-
Qaeda, the Taliban, associated forces, until the end of the 
armed conflict, as a matter of international law and, as we 
have discussed earlier, under the AUMF.
    In terms of the targeted strikes that you were referring 
to--and I would say, more broadly, direct action against 
counterterrorism targets, which would include capture 
operations or lethal operations--again, while the United States 
mission in Afghanistan is a--in its narrowing post-2014 is an 
important consideration--we will retain the authority to use 
force, as appropriate, against our enemies in the armed 
conflict and otherwise to protect to the country.
    The third area that you mentioned is foreign assistance or 
other counterterrorism activities and assistance. And that, 
again, notwithstanding the narrowing of the mission in 
Afghanistan, we would expect that DOD's assistance efforts--
and, in particular, capacity-building by partner countries--
will continue apace and unabated.
    The Chairman. So, your answer, then, to my three specific 
questions is that you will have continuing legal authority, 
notwithstanding the ending of that conflict or any narrowing or 
repealing of the AUMF under which you are operating in 
Afghanistan.
    Mr. Preston. I agree with most of what you said, sir. With 
the end of the conflict--and we do face issues about--under 
international law principles--the extent to which use of force 
in certain applications would continue to be justified under 
international law.
    The Chairman. Let me say one final thing and then I will 
turn to Senator Corker.
    Would it be fair to say that statutory authorization 
essentially provides a broader authority on which to act 
militarily, particularly in the absence of an immediate threat?
    Mr. Preston. It certainly can. And in the case of the AUMF, 
it does represent a broad grant of authority.
    The Chairman. And an AUMF also transcends the War Power 
Resolution, because it requires the President to come to 
Congress for authorization 30 days after insertion of U.S. 
forces in hostilities.
    Mr. Preston. That is right. A legislated authorization 
provides Congress' participation in that decision.
    The Chairman. Senator Corker.
    Senator Corker. Mr. Chairman, I will be very brief. I do 
want to thank you for having this hearing. I think it is been 
very educational for all involved, even though it has been 
difficult to get direct answers. I think it has really 
highlighted, in many ways, a real debate that needs to occur 
here in action taken by the committee.
    I do want to say, for my friends who may not have been here 
during the Libya debate--I know that Harold Koh is here and 
will be a witness in just a moment. I know sometimes people 
leave these hearings. But, when we challenged the 
administration over the War Powers Act issue as we were bombing 
Libya--bombing Libya--Mr. Koh testified, on behalf of the State 
Department, that we were not involved in hostilities in Libya.
    So, I just want to highlight the fact that this is a real 
debate that we need to have. There are people who, on behalf of 
the administration, want to give any answer that works for the 
administration, will justify actions that, to me, go beyond. 
And so, I really want to thank you so much for having this 
debate.
    And I would like to ask Mr. Preston which of these groups--
I am going to name some groups--you are authorized to go after 
under the 9/11 AUMF.
    AQAP, yes or no?
    Mr. Preston. As I said in my statement, we have previously 
disclosed that AQAP is a part of or----
    Senator Corker. Is it yes--I want to move through this 
quickly. Yes or no?
    Mr. Preston. It--yes, sir.
    Senator Corker. ISIS?
    Mr. Preston. Sir, with respect to groups in addition to the 
ones that----
    Senator Corker. Yes or no? I want a yes-or-no answer. Are 
you authorized, under the 9/11 AUMF, to go after ISIS?
    Mr. Preston. Sir, I cannot speak publicly about which 
groups--particular groups we may or may not have determined----
    Senator Corker. Is this a classified answer? Is that the 
reason?
    Mr. Preston. That is my understanding, yes, sir.
    Senator Corker. So, I do wonder how--again, this gets back 
to a topic many of us discussed last night--I do not know how 
we can debate these issues, when you cannot even tell us 
whether we can or cannot go after groups based on 
authorizations that Congress itself passed. I just want to 
highlight that.
    AQIM. Can we go after AQIM? Yes----
    Mr. Preston. Same answer----
    Senator Corker [continuing]. Or no?
    Mr. Preston [continuing]. Sir----
    Senator Corker. Same answer. Classified, you cannot tell 
us----
    Mr. Preston. We would----
    Senator Corker [continuing]. Whether we can go after groups 
in northern Africa that are committing----
    Mr. Preston. We have publicly identified the groups that we 
are operating against using military force under AUMF. As for 
other groups, whether or not they would qualify is a 
determination that is made as concrete situations are 
presented.
    Senator Corker. Well, there are very concrete situations 
happening. So, right now, you have made a determination, I 
guess, with ISIS. Very concrete things are happening there in 
AQIM. So, I assume, in a classified setting, you could share 
with us whether, in fact, you have the authorities to go after 
these groups. Is that correct?
    Mr. Preston. In a classified setting, we could discuss the 
available classified intelligence and how the standards----
    Senator Corker. No, I just want to know if we can or 
cannot. Can you tell me those things in a classified setting?
    Mr. Preston. That would have to take place in a classified 
setting.
    Senator Corker. Okay. Well, I will set that up the first 
day we are back, and I look forward to that meeting.
    Al-Nusra.
    Mr. Preston. Sir, again, the groups that we have not 
identified as groups we are currently operating against, the 
intelligence and application of the standards under the AUMF is 
not something that we are prepared to discuss in an open 
session.
    Senator Corker. But, in a classified setting, you will 
share that with the entire committee.
    Mr. Preston. That would have to take place in a classified 
setting.
    Senator Corker. Well, since we--I just will close with 
this. Ms. McLeod, I know I gave you somewhat of a hard time, 
and I know that you are sent up here on behalf of the State 
Department to represent the State Department. And I actually 
want to say to you that my wrath should really be taken toward 
the State Department and not yourself. We asked people to come 
up here today to answer questions that I think are of a great 
challenge for our Nation to deal with. And just as Ann 
Patterson came up here 56 days ago and told us that she would 
be glad to lay out to us what our policy was in Syria, it has 
never happened. I think you all know.
    And I realized, actually, last night, while the 
administration has been hiding behind intelligence, not being 
able to share it--I realized, last night, that the 
administration has no policy in Syria, has no strategy in 
Syria, and that is why they have not been willing to talk with 
us about this. It just dawned on me last night why this 
stonewalling is taking place. There is no objective there other 
than acting like we are doing something.
    And I just want to say to this group, it is obvious the 
administration has no opinion--has no opinion--on whether we 
should refine the AUMF, or not.
    And I just want to say to Chad, who works on behalf of the 
State Department, you would serve the State Department much 
better by actually sending folks up here who can speak to these 
issues, or just tell us that there is no opinion that the State 
Department has.
    And so, with that, I thank you both for being here. I 
apologize, on behalf of the Departments you represent, them 
sending you up here, when they really do not have, quote--as 
the Chairman referenced appropriately, they have not made any 
policy statements.
    I do hope the committee will take this issue up. And again, 
I want to thank the chairman for his diligence. My guess is--
this has peaked a lot of interest here, and my guess is that if 
we are going to be responsible Senators, we should respond.
    The Chairman. Senator Durbin.
    Senator Durbin. Very briefly, because I know there is 
another panel.
    I do not know that there were any Members of the Senate who 
really understood, when we voted on this Authorization for the 
Use of Military Force, what we were voting for. We were 
reacting to the 9/11 attack and saying, ``Go after those 
responsible.'' None of us could have envisioned that we were 
voting for the longest war in the history of the United States, 
which still goes on, to this day. None of us could have 
understood the military aspects and nonmilitary aspects of the 
commitment that we were making. And I think it is entirely 
appropriate, though monumentally challenging, for us to take on 
a redefinition of the Authorization of the Use of Military 
Force.
    And I would say to my friend--and he is my friend--Senator 
Corker, of Tennessee--his frustration over this reflects many 
things, not the least of which are the rules of the Senate 
about how information is exchanged and given to Members of the 
Senate. As I mentioned to him last night in a separate meeting, 
in a separate capacity from this committee, I am told things 
that other Members are not. And I understand when witnesses 
come before us and say, ``I--you know, I am dutybound not to 
disclose classified information in an open public hearing. It 
may endanger lives of Americans and others.'' That is a 
responsibility that I am sure you take very seriously. And I 
would not put you on the spot as to whether or not any specific 
piece of information--your right to make that claim. But, I do 
believe we need to discuss, as an institution, the exchange of 
more information so that we understand the nature of this 
conflict we are now in with terrorism. It is much different 
than any of us envisioned when we were voting that day on the 
Authorization of the Use of Military Force.
    Thank you, Mr. Chairman.
    Mr. Preston. Sir, if I could just thank Senator Durbin for 
those comments, and particularly about the information. We will 
take back Senator Corker's request for additional information 
that I am not at liberty to provide.
    Thank you.
    The Chairman. Is there any other member who has any 
questions? [No response.]
    If not, with the appreciation of the committee, this panel 
is excused.
    Let me call up our next panel, a very important panel: The 
Honorable Harold Koh, Sterling Professor of International Law, 
Yale Law School, and former State Department Legal Adviser; and 
the Honorable Michael Mukasey, partner, Debevoise & Plimpton, 
former Attorney General of the United States.
    I welcome both of you to the committee. We appreciate your 
willingness to share your insights. Your full statements are 
going to be included in the record, without objection. So, I 
would ask you to try to summarize them in about 5 minutes or 
so. And this way, we can get into the type of dialogue that we 
just had with the previous panel.
    And, with that, Mr. Koh, you are recognized.

  STATEMENT OF HON. HAROLD HONGJU KOH, STERLING PROFESSOR OF 
  INTERNATIONAL LAW, YALE LAW SCHOOL, FORMER STATE DEPARTMENT 
                  LEGAL ADVISER, NEW HAVEN, CT

    Mr. Koh. Thank you, Mr. Chair, Ranking Member Corker, for 
inviting me back.
    A year ago, the President gave a speech, at the National 
Defense University, that outlined elements of his post-9/11 
counterterrorism strategy. And there are three aspects that I 
think are particularly important and achievable, which I have 
described in my written statement: First, eventually ending the 
war with al-Qaeda and the associated forces when the facts on 
the ground permit. And that is the key. The nature of the 
threat on the ground is what matters and is logically prior to 
any legal action. Second, eventually repealing the AUMF. And 
third, in the meantime, narrowing its mandate.
    And, to me, each of these three elements--ending the war 
with al-Qaeda, seeking repeal, and narrowing the AUMF--is 
possible, in time. So, there are three questions to which 
each--the answer, I think, should be ``yes.''
    Should our long-term goal be ending the war? Yes. I think 
we should choose an exit strategy over a perpetual war, because 
war has a distorting effect on our priorities, our economies, 
and our liberties. And, under our Constitution, peace is the 
norm; perpetual war is a distortion.
    And I do not think that Congress should extend or expand 
the war, over the President's objection. First of all, it is 
Congress' role to end wars. And, secondly, in our entire 
constitutional history, I know of no example where Congress has 
enacted a law to expand or extend a war, over the explicit 
objection of the President. And this should not be the first 
such occasion. So, should we end the war? Yes.
    Second, could you eventually, when the facts on the ground 
allow, repeal the AUMF without leaving legal gaps in our 
authority to target or detain? And the answer is, ``yes,'' when 
the situation on the ground permits.
    With regard to both targeting and detention, think of it as 
belt and suspenders. Last May, the President signed a 
Presidential policy guidance that formalized the executive 
branch's targeting practice and made clear that they conform to 
domestic and international law. And that lawfulness of this 
executive branch action depends on two things: the existence of 
an armed conflict with 
al-Qaeda, the Taliban, and associated forces, but it 
separately--and this is the suspenders part--rests on the 
President's lawful authority to act in self-defense against 
continuing and imminent threats to the United States.
    Now, if al-Qaeda is defeated on the ground and you do not 
need to have an armed conflict with them, but all threats are 
not ended, you can remove the belt--namely, repeal the AUMF--
and still have enough legal authority on your side through the 
Law of Self-Defense. And I describe, on pages 7 to 9 of my 
testimony, that if Congress would like this to be done in a 
statute, as opposed to Article 2 constitutional authority, it 
could codify the self-defense authority with regard to 
continuing and imminent threats so that the Congress could 
place conditions on reporting and the like.
    What about detention? Same thing. If the facts on the 
ground lead to the situation where the United States has 
transitioned Afghan detention to Afghan control, where 
traditional detention tools can be used for some of the other 
individuals and can work with Congress on a plan to close 
Guantanamo, at that point there would be no need for Law of War 
detention authority. What the AUMF gives you is the authority 
to act against belligerent combatants as targets or as 
detainees. And if you do not need to do that anymore, you do 
not need the AUMF anymore.
    Third, and finally, does it make sense to amend the AUMF? 
My view is, to expand it and create an ongoing war is not a 
good idea. No new legislation is better than bad new 
legislation. But, if Congress wants to set the stage for repeal 
by narrowing the AUMF, I suggest, in pages 12 through 14 of my 
written statement, how this could be done, and I suggest four 
particular steps Congress might consider: first, a sunset 
provision; second, stronger congressional reporting 
requirements; third, stronger public reporting requirements, 
particularly about civilian casualties; and finally, 
exploration of some kind of post/ex-post external review 
mechanism to examine the legality of past drone strikes.
    So, in closing, the three goals--eventually ending the war, 
eventually seeking repeal, and narrowing the AUMF--are 
important, they are achievable, and they are worthy of 
thoughtful consideration by this committee and Congress.
    My point is simple. The AUMF is not the only law we have. 
We have other laws. We should not treat the AUMF as a perpetual 
all-purpose security blanket that can be distorted and that 
will itself become a distorting force.
    We can, in time, when the facts on the ground permit, 
repeal the AUMF and rely on other authorities to fill these 
gaps. And not to do so, from that point, I think would be bad 
for our counterterrorism policy and bad for our Constitution.
    Thank you.
    [The prepared statement of Mr. Koh follows:]

                Prepared Statement of Harold Kongju Koh

    Thank you, Mr. Chairman and Members of the committee, for inviting 
me before this committee today.
    I am Sterling Professor of International Law at the Yale Law 
School, where since 1985, I have taught international law, national 
security law, and the law of U.S. foreign relations.\1\ For 10 years, I 
served in the U.S. Government, most recently from 2009 to 2013 as Legal 
Adviser of the U.S. Department of State.\2\ Having worked daily during 
my time as Legal Adviser on counterterrorism issues, I appear today to 
support the President's commitment, stated in his important speech at 
the National Defense University last May, to ``continue to fight 
terrorism without keeping America on a perpetual wartime footing.'' \3\
    When President Obama took office, the United States was engaged in 
congressionally authorized armed conflicts in Iraq, Afghanistan, and 
against al-Qaeda and its co-belligerents. Since then, the Iraq conflict 
has ended.\4\ The President has declared his intent to withdraw combat 
troops from Afghanistan by the end of this calendar year.\5\
    Today, let me explain why, after Iraq and Afghanistan, this 
country's counterterrorism policy should include three important and 
achievable elements of the President's NDU proposal: ending the war 
with al-Qaeda and its co-belligerents; repealing the Authorization for 
Use of Military Force (AUMF) enacted on September 18, 2001; \6\ and 
prior to repeal, narrowing the AUMF's mandate. I agree with the 
President: first, that the armed conflict that began against al-Qaeda 
and its co-belligerents nearly 13 years ago, ``like all wars, must 
end''; second, that Congress should aim to ``ultimately repeal, the 
mandate'' of the AUMF; and third, that in the interim, Congress should 
explore ways to narrow the AUMF rather than ``to expand the AUMF's 
mandate further.'' \7\
         i. ending the war with al-qaeda and its cobelligerents
    In 4 months time, this coming September, the United States armed 
conflict with al-Qaeda will turn 13 years old. That is 9 years longer 
than either the Civil War or World War II, and nearly 5 years longer 
than the Revolutionary War. As I argued last year in a speech at 
Oxford, this conflict has become so protracted that it has come to feel 
like a ``Forever War.'' \8\ It has changed the nature of our foreign 
policy, consumed our new Millennium, and made it hard to remember what 
the world looked like before September 11.
    In his NDU speech last May, the President summarized why we should 
reject indefinite war in favor of an ``exit strategy'' to bring this 
protracted conflict with 
al-Qaeda, like all wars, to an end:

          [T]he choices we make about war can impact--in sometimes 
        unintended ways--the openness and freedom on which our way of 
        life depends. And that is why I intend to engage Congress about 
        the existing Authorization to Use Military Force, or AUMF, to 
        determine how we can continue to fight terrorism without 
        keeping America on a perpetual wartime footing . . . The 
        Afghan war is coming to an end. Core al-Qaeda is a shell of its 
        former self. Groups like AQAP must be dealt with, but in the 
        years to come, not every collection of thugs that label 
        themselves al-Qaeda will pose a credible threat to the United 
        States. Unless we discipline our thinking, our definitions, our 
        actions, we may be drawn into more wars we don't need to fight, 
        or continue to grant Presidents unbound powers more suited for 
        traditional armed conflicts between nation states.\9\

    Last October, I argued that despite public skepticism, without 
fanfare, President Obama has made slow but steady progress toward 
achieving three key elements of his effort to end the Forever War: (1) 
disengaging from Afghanistan; (2) closing Guantanamo; and (3) 
disciplining drones.\10\ The government witnesses you heard from 
earlier today have clarified how efforts in all three of those arenas 
continue.\11\
    As outlined in the President's NDU speech, the administration's 
counterterrorism strategy treats ``kill and capture'' as only a small 
part of a much broader U.S. ``smart power'' strategy toward 
counterterrorism.\12\ Within that broader strategy, the President 
insists upon maintaining a lawful and workable framework to govern our 
use of force against al-Qaeda and its associated forces, now formalized 
in Presidential Policy Guidance that President Obama signed last May. 
``In the Afghan war theater,'' the President said, ``we must--and 
will--continue to support our troops until the transition is complete 
at the end of 2014 [by continuing] to take strikes against high value 
al-Qaeda targets, but also against forces that are massing to support 
attacks on coalition forces.'' \13\ But ``[b]eyond the Afghan 
theater,'' the President clarified, ``we only target al-Qaeda and its 
associated forces. And even then, the use of drones is heavily 
constrained'' by four principles, which are clearly enumerated in the 
important Fact Sheet that accompanied the President's NDU speech: \14\ 
(1) the priority of capture over kill; \15\ (2) respect for 
international law and state sovereignty; \16\ (3) the requirement that 
targets present a ``continuing and imminent threat'' to U.S. persons 
\17\ and (4) a ``near-certainty'' test for avoiding civilian 
casualties. At the same time, the President remains committed to 
maintaining a clear, lawful, and workable framework to govern detention 
of al-Qaeda and its associated forces at Guantanamo and elsewhere.\18\ 
Finally, the President committed himself to transparency and 
consultation with Congress and our allies,\19\ and to considering 
future workable proposals to extend oversight of lethal actions outside 
of active warzones.\20\ Each of these key principles--a smart-power 
strategy, legal frameworks to govern drones and detention, and a 
commitment to transparency, consultation, and oversight--seems to me 
both correct and worth supporting.
    For our country, peace is the norm and war is the exception. 
Condoning a state of perpetual war would mark a gross deviation from 
our constitutional norms. We need not, and should not, allow a wartime 
footing to become a perpetual state of affairs. Applying the 
President's declared principles steadily over time, we can end the war 
against al-Qaeda and its allies when circumstances on the ground allow, 
and while so doing, continue to meet all our domestic and international 
law obligations.
                         ii. repealing the aumf
    The President's speech more than a year ago made clear his intent 
to work with Members of Congress to ``refine and ultimately repeal'' 
the 2001 AUMF. He expressly stated, ``I will not sign laws designed to 
expand this mandate further.'' \21\ Nevertheless, some argue that the 
AUMF must continue, or even be expanded, despite the President's 
clearly stated position. They claim that repealing the 2001 AUMF will 
leave legal ``gaps'' \22\ in both the President's targeting and 
detention authority that will prevent the Executive from successfully 
protecting America and our allies from known as well as future 
terrorist threats.
    As a policy matter, any proposal to expand and extend the AUMF's 
mandate would be both unprecedented and exceedingly unwise. After more 
than three decades of studying, writing, and teaching the law of U.S. 
foreign policy, I know of no example in our long constitutional history 
where the Congress--traditionally the branch that seeks to end wars--
has enacted a law expressly to extend or expand a war over the 
President's explicit objection.\23\
    As a legal matter, the President's goal of ``refining, then 
repealing'' the AUMF is both achievable and sustainable without 
undermining the security of the American people. Substantial legal 
authorities for both targeting and incapacitation of terrorists were 
available to the Executive branch before the 2001 AUMF. These 
authorities have been significantly strengthened since then, and would 
remain in its absence.\24\ The current legal authorities are sufficient 
to provide the administration with all the authority needed to address 
threats to the United States. At the proper time, the President and 
Congress can work together to repeal the 2001 AUMF without risking 
exposing our population to future threats.
A. Targeting
    As I argued as Legal Adviser and continue to believe, the Executive 
branch is employing lawful standards for targeting both: (1) Taliban 
and al-Qaeda combatants in Afghanistan, and (2) al-Qaeda, the Taliban, 
and ``associated forces'' both inside and outside of Afghanistan.\25\ 
As the administration has explained, the U.S. Government defines 
``associated forces'' in accordance with international law to include 
those (1) organized armed groups that have entered the fight alongside 
al-Qaeda; and (2) are a co-belligerent with al-Qaeda in the hostilities 
against the United States and its coalition partners.\26\ While not 
part of the 2001 AUMF's wording, the term ``associated forces'' derived 
from a shared Executive \27\ and judicial interpretation of the 
statute's text \28\ used to clarify the authority of the AUMF in 
aftermath of 9/11, which was later codified in the 2012 NDAA.\29\ As 
now construed by all three branches of government, the 2001 AUMF 
authorizes all necessary and appropriate force against al-Qaeda, the 
Taliban, and associated forces under U.S. law. Those strikes are lawful 
under international law because the Obama administration's standards--
as expressed in the President's May 2013 NDU speech and accompanying 
Presidential Policy Guidance--construe the AUMF to be read consistently 
with international humanitarian law, which our Supreme Court has held 
governs the Non-International Armed Conflict (NIAC) in which the United 
States is currently engaged against al-Qaeda and associated forces.\30\
    That said, the 2001 AUMF is not needed as a perpetual legal 
authority. It can be repealed at the appropriate time, once al-Qaeda 
has been effectively defeated. At that time, repeal would create no 
``legal gap'' if the United States found an ongoing need to strike 
particular remaining al-Qaeda terrorists and associated forces who pose 
a continuing and imminent threat to the United States. In such cases, 
future strikes against groups that pose a continuing and imminent 
threat to the United States could still be justified under both 
domestic and international law.
    As a constitutional matter, it has long been settled that ``[a]s 
Commander in Chief and Chief Executive, [the President] may use the 
Armed Forces to protect the Nation and its people.'' \31\ In the Prize 
Cases, the Supreme Court affirmed the President's inherent authority to 
use force in self-defense to protect the Nation against invasion or 
sudden attack, declaring that ``[i]f a war be made by invasion of a 
foreign nation, the President is not only authorized but bound to 
resist force by force. He does not initiate the war, but is bound to 
accept the challenge without waiting for any special legislative 
authority.'' \32\ Under the principle of self-defense that is inherent 
in the President's Commander in Chief authority, the President has long 
been understood to have constitutional authority to act reasonably in 
self-defense against any threat.\33\
    Read in light of international law, that constitutional authority 
would clearly include the right to act against ``imminent'' threats, a 
term defined in the famous Caroline case as applying to situations in 
which the ``necessity of that self-defence is instant, overwhelming, 
and leaving no choice of means, and no moment for deliberation.'' \34\ 
But under a very narrow set of circumstances, the Caroline requirement 
may also reasonably be read to permit direct strikes as a last resort 
against groups or individuals who pose a continuing and imminent threat 
\35\ by virtue of: (1) engaging in ``a concerted pattern of continuing 
armed activity'' \36\ directed against the U.S.--i.e., demonstrating a 
willingness to attack the U.S. if given the opportunity; (2) past 
successful attacks; and (3) ``actively planning, threatening, or 
perpetrating [future] armed attacks'' \37\ against America.\38\ In my 
judgment, this understanding of imminence is consistent with Article 51 
of the U.N. Charter, which codifies the right of national and 
collective self-defense.\39\
    President Obama essentially embraced this concept in his 2013 NDU 
speech when he said-regarding the use of force outside the Afghan 
theater--``America does not take strikes to punish individuals; we act 
against terrorists who pose a continuing and imminent threat to the 
American people, and when there are no other governments capable of 
effectively addressing the threat.\40\ If, after the Afghan conflict 
ends, the Executive wishes to continue conducting strikes in 
Afghanistan against local groups or individuals that do not pose a 
continuing and imminent threat to the U.S., the President would need to 
seek separate legal authority from Congress. But as President Obama 
noted in his NDU speech, the ``future of terrorism'' is ``lethal yet 
less capable al-Qaeda affiliates; threats to diplomatic facilities and 
businesses abroad; homegrown extremists,'' \41\ a threat that would 
require a range of tools.\42\ With respect to both continuing and 
imminent terrorist threats and new threats that meet the relevant 
constitutional and international law tests, these tools should give the 
President sufficient legal authority to conduct the activities 
necessary to protect the American population.
    I fully understand why Congress might prefer not to leave a matter 
of such importance to inherent constitutional authority. If so, 
Congress could both clarify and narrow the scope of the AUMF going 
forward by codifying a standard authorizing the principles stated in 
the President's May 2013 Presidential Policy Guidance. Such a standard, 
consistent with the international law arguments outlined above, would 
authorize the President to use force against those groups or 
individuals who pose a continuing and imminent threat to the U.S. by 
virtue of: (1) having already attacked the U.S.; (2) engaging in a 
concerted pattern of continuing armed activity directed against the 
U.S.; and (3) actively planning, threatening, or perpetrating armed 
attacks against the U.S. Congressional action to codify the authority 
that the President needs to effectively confront post-9/11 threats 
would update the language of the AUMF to reflect the administration's 
actual policies, now embodied in executive branch mandates. Such a 
reading would draw what the President called an important ``distinction 
between the capacity and reach of a bin Laden and a network that is 
actively planning major terrorist plots against the homeland versus 
jihadists who are engaged in various local power struggles and 
disputes, often sectarian.'' \43\
    If government officials are too loose in who they consider to be 
forces ``associated with'' al-Qaeda, then we will always have new 
enemies, and the Forever War will continue forever.\44\ Instead of 
continuing to rely on the broadly worded 2001 AUMF to codify a 
permanent state of war, it would be far better to narrow the scope of 
targeting authority to match current policy. This would both give 
Congress greater say in authorizing force and bolster the 
constitutional legitimacy of counterterrorism operations by giving the 
President's current standards a shared legislative and executive 
imprimatur.\45\
B. Detention
    Nor should repealing the AUMF create any ``legal gap'' in detaining 
and trying future terrorist detainees in either American courts or 
elsewhere.\46\ As President Obama reiterated in both his 2013 NDU 
speech and his 2014 State of the Union Address,\47\ his administration 
is committed to transferring the Parwan detention facility to Afghan 
control, closing Guantanamo, transferring the prisoners held there to 
other countries, trying them in Article III courts in the United 
States, or trying them before military commissions.
    As for Parwan, the United States has already transitioned detention 
operations to Afghan authorities.\48\ The end of major combat 
operations in Afghanistan may well also lead to renewed legal 
challenges to the President's authority to continue to detain at least 
some of the detainees at Guantanamo.\49\ But as the testimonies of Mr. 
Preston and Ms. McLeod make clear, executive branch lawyers are 
carefully studying this possibility, and assessing the effect it might 
have on law of war detention under the 2012 NDAA.
    While some have expressed concern over so-called ``unreleasable'' 
prisoners still at Guantanamo, as the executive branch report submitted 
last week under the terms of the National Defense Authorization Act 
makes clear, that problem can be managed in a number of ways.\50\ This 
``legacy issue'' should not become ``the tail wagging not only the 
debate over closing Guantanamo, but the debate over repealing/replacing 
the AUMF.'' \51\ Once Congress and the President come to an agreement 
on how to handle the prisoners currently being held at Guantanamo, 
repealing the AUMF should leave no gap in America's detention 
authority.\52\
    In any event, we should not confuse the past with the future. The 
President has repeatedly declared his intent to close Guantanamo and 
not to bring any new detainees there. Thus, debates over continuing 
authority to hold those currently in law of war detention--a population 
that the President has expressly declared his intent to minimize or 
eliminate--lend little support to the claim that new legal authority is 
somehow needed to ensure potential future detentions of dangerous 
terrorist suspects. The administration has now developed an effective 
scheme for detaining and trying defendants in Article III courts, which 
it recently executed effectively against Sulaiman Abu Ghaith, the most 
senior bin Laden associate to be tried and convicted in a civilian 
court in the United States since 9/11, and the radical cleric Abu Hamza 
al-Masri, who was convicted by a federal court this week on 11 criminal 
counts.\53\ Two other Article III defendants, Ahmed Warsame (who 
pleaded guilty) and Abu Anas al Libi (who is currently awaiting trial), 
were initially detained for a period of questioning under AUMF 
authority, before being given Miranda warnings and charged criminally 
under sealed indictments.\54\ Under laws passed since 9/11, the 
government should have ample authority, even without the AUMF, to pick 
up future terrorism suspects overseas.\55\
                        iii. narrowing the aumf
    While eventual repeal of the 2001 AUMF remains the best long-term 
way to finally bring an end to the Forever War, the precise timing of 
that repeal remains a decision about which the administration and 
Congress should agree, based upon the facts as they develop. Some, 
however, have invited Congress to consider proposals broadly to 
``update'' the AUMF to address new threats.\56\ To the extent that 
those proposals amount to proposals to expand, extend, or perpetuate 
the war with al-Qaeda and its co-belligerents--and to extend it to 
currently unknown, future terrorist organizations--I believe they are 
both unwise and unnecessary. In the interim, no legislation would be 
plainly better than new legislation for its own sake.
    Others claim that Congress could prepare the way for eventual 
repeal of the AUMF by refining and narrowing--but not expanding--the 
scope of the 2001 AUMF. Their claim is that reform to narrow the AUMF 
could, first, resolve uncertainties about the continued legality and 
currency of a counterterrorism framework that remains tied to 9/11, an 
event that transpired 13 years ago; second, bring the text of the AUMF 
more into line with the landscape of post-9/11 threats; and third, 
provide Congress with an opportunity to reassert its role in defining 
and limiting the authorities of the executive branch. While I do not 
see pre-repeal reform as either wise or necessary, if Congress wishes 
to consider reforms to refine and narrow (and not expand) the AUMF's 
broad authorization, it would make the most sense to include within the 
AUMF a sunset clause, which would provide increased opportunities for 
congressional and Executive dialogue and force debate and voting at 
timed intervals. As Representative Adam Schiff noted when proposing 
stand-alone legislation that would sunset the 2001 AUMF beginning in 
2015, concurrent with the end of combat operations in Afghanistan, 
``When Congress passed the AUMF shortly after 9/11, we did not intend 
to authorize a war without end.'' \57\ Because the current war against 
nonstate actors responsible for 9/11 will not have a conventional end 
marked by a peace treaty, Congress could amend the 2001 AUMF, without 
narrowing its substantive scope, by adding a sunset provision--of one 
year, or perhaps timed to coincide with the Afghan drawdown--to ensure 
that both elected branches play a role in deciding whether and when the 
U.S. will use force against al-Qaeda and associated forces going 
forward. Adding a sunset clause would also help to ensure that the 
statutory framework for our counterterrorism operations is regularly 
updated to reflect the realities of the threats we are facing, and to 
accurately express the intent and will of the legislative branch.\58\
    To improve public and congressional access to information, Congress 
could further amend the AUMF by codifying more stringent transparency 
and reporting requirements. Strengthened congressional reporting 
requirements might require that relevant committees regularly receive 
information on secret military and covert operations, including 
requiring that Congress be informed as to which groups are covered 
under the AUMF and in which nations the Department of Defense believes 
Congress has authorized the President to use military force.\59\
    These confidential reporting provisions could be strengthened by 
adding public reporting requirements, which might include requiring the 
periodic public release of nonsensitive information as to where and 
against whom the President is using military force under congressional 
authorization. Such reports are regularly given in the context of the 
War Powers Resolution, and it should not unduly burden the Executive to 
require that similar information also be given here.\60\ Nor do I see 
why the President should not be asked to issue a regular public report 
on the number of combatants and civilians killed by the United States 
use of targeted lethal force abroad. Unfortunately, a similar provision 
was recently stripped out of congressional legislation, which would 
have required President Obama to make public each year the number of 
people killed or injured in targeted killing operations.\61\ Such 
transparency would help rebut a wave of drone reports--by Human Rights 
Watch and Amnesty International, and the United Nations Special 
Rapporteur on Counterterrorism and Human Rights and Extrajudicial 
Killings--that have challenged whether the strict standards stated in 
the President's NDU speech have in fact been consistently and 
rigorously applied.\62\ These NGO reports do not assess the total 
number or rate of civilian casualties for all U.S. drone strikes.\63\ 
Nor do they say that all U.S. targeted killings are illegal. They do, 
however, claim that dozens of civilians have been killed, and that the 
U.S. may be misinterpreting and misapplying existing law by applying 
broader notions of targetability and imminence than international law 
permits. These are serious charges that deserve serious responses from 
our government, which is why I argued a year ago, and continue to 
believe, that the administration

          Should make public its full legal explanation for why and 
        when it is consistent with due process of law to target 
        American citizens and residents. . . . [I]t should clarify its 
        method of counting civilian casualties, and what that method is 
        consistent with international humanitarian law standards. [And] 
        where factual disputes exist about the threat level against 
        which past drone strikes were directed, the administration 
        should release the factual record. By so doing, it could 
        explain what gave it cause to believe that particular threats 
        were imminent, what called for the immediate exercise of self-
        defense, and what demonstrated either the express consent of 
        the territorial sovereign or the inability and unwillingness of 
        those sovereigns to suppress a legitimate threat.\64\

    Finally, exploration and eventual implementation of some form of ex 
post review mechanism for targeting would be beneficial both as a 
policy and a legal matter.\65\ The President's own guidelines already 
state that targeting policies should be reviewed for legality.\66\ In 
his NDU speech, the President asked his lawyers to consider a special 
court or an Executive review board as possible ways to extend oversight 
of lethal actions outside of the Afghan theater.\67\ Because European 
courts are showing increased initiative in reviewing European 
cooperation in targeting operations for compliance with domestic and 
international law,\68\ some form of ex post judicial review of these 
actions may prove inevitable in the near future, whether American 
officials favor it or not.
    In sum, while I do not favor legislation for its own sake, until 
the AUMF is ultimately repealed, Congress need not be a passive rubber-
stamp. If Congress wants to play a proactive role in resolving legal 
uncertainties, it could tighten the language of the current AUMF to 
narrow substantive scope and improve accountability. Amending the 2001 
AUMF to narrow and refine its authority could enhance the legitimacy of 
our counterterrorism operations in ways that would encourage 
information-sharing and multilateral cooperation going forward. As 
former FBI Director Robert S. Mueller III noted, ``Our enemies live in 
the seams of our jurisdictions. No single agency or nation can find 
them and fight them alone. If we are to protect our citizens, working 
together is not just the best option, it is the only option.'' \69\ 
Short-term refinements to the scope of the AUMF in anticipation of its 
eventual repeal could send a positive signal to the international 
community of the United States commitment to complying with its 
domestic and international legal obligations and ending the Forever 
War.
                             iv. conclusion
    For the foregoing reasons, I believe that ending the war with al-
Qaeda and its co-belligerents, eventually repealing the AUMF, and 
narrowing its mandate in the meantime are all important and achievable 
elements of this administration's counterterrorism policy.
    Thank you for your attention. I now look forward to answering any 
questions the committee might have.

----------------
End Notes

    \1\ I am grateful to Hank Moon and Mara Revkin of the Yale Law 
School for their help in preparing this testimony. Although I sit on a 
law school faculty as well as on the boards of several organizations, 
the views expressed here are mine alone, not those of my colleagues or 
of any of the institutions with which I am affiliated.
    \2\ I previously served in the Clinton Administration as Assistant 
Secretary of State for Democracy, Human Rights and Labor from 1998-
2001, and in the Reagan Administration as Attorney-Adviser at the 
Office of Legal Counsel of the U.S. Department of Justice from 1983-85.
    \3\ Remarks by the President at the National Defense University, 
White House Office of the Press Secretary (May 23, 2013) [hereinafter 
Obama NDU Speech].
    \4\ See Authorization for Use of Military Force Against Iraq 
Resolution of 2002, Pub. L. No. 107-243, 116 Stat. 1498. On August 31, 
2010, President Obama declared an end to the combat mission in Iraq. 
See Helene Cooper & Sheryl Gay Stolberg, ``Obama Declares an End to 
Combat Mission in Iraq,'' N.Y. Times, Aug. 31, 2010.
    \5\ On December 1, 2009, President Obama announced his intent to 
withdraw troops from Afghanistan. See The White House Office of the 
Press Sec'y, Remarks by the President in Address to the Nation on the 
Way Forward in Afghanistan and Pakistan (December 1, 2009). The number 
of U.S. troops remaining in Afghanistan after the planned drawdown 
could drop below the originally projected figure of 10,000, reflecting 
``a belief among White House officials that Afghan security forces have 
evolved into a robust enough force to contain a still-potent Taliban-
led insurgency.'' Missy Ryan & Arshad Mohammed, ``U.S. Force in 
Afghanistan May be Cut to Less Than 10,000 Troops,'' Reuters, Apr. 21, 
2014.
    \6\ See Authorization for Use of Military Force, Pub. L. No. 107-
40, 115 Stat. 224, 224 (2001) (codified at 50 U.S.C. 1541 note) 
[hereinafter 2001 AUMF] (``That 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. or persons.'').
    \7\ Obama NDU Speech, supra note 3.
    \8\ See Harold Hongju Koh, ``How to End the Forever War,'' Speech 
at Oxford Union (May 7, 2013) [Koh Oxford Speech].
    \9\ See Obama NDU Speech, supra note 3 (emphasis added).
    \10\ See Harold Hongju Koh, ``Ending the Forever War: A Progress 
Report,'' Just Security (Oct. 28, 2013, 3:00 PM) [hereinafter Koh 
Progress Report].
    \11\ See testimonies of Department of Defense General Counsel 
Stephen Preston and Principal Deputy Legal Adviser Mary McLeod before 
the Senate Foreign Relations Committee on May 21, 2014.
    \12\ See Obama NDU Speech, supra note 3 (``[T]he use of force must 
be seen as part of a larger discussion we need to have about a 
comprehensive counterterrorism strategy--because for all the focus on 
the use of force, force alone cannot make us safe. We cannot use force 
everywhere that a radical ideology takes root; and in the absence of a 
strategy that reduces the wellspring of extremism, a perpetual war--
through drones or Special Forces or troop deployments--will prove self-
defeating, and alter our country in troubling ways. . . . [T]he next 
element of our strategy involves addressing the underlying grievances 
and conflicts that feed extremism--from North Africa to South Asia.'').
    \13\ Id.
    \14\ See U.S. Policy Standards and Procedures for the Use of Force 
in Counterterrorism Operations Outside the United States and Areas of 
Active Hostilities, White House (May 23, 2013) [hereinafter Summary of 
White House PPG] (``Lethal force will be used only to prevent or stop 
attacks against U.S. persons, and even then, only when capture is not 
feasible and no other reasonable alternatives exist to address the 
threat effectively. In particular, lethal force will be used outside 
areas of active hostilities only when the following preconditions are 
met:

    First, there must be a legal basis for using lethal force, whether 
it is against a senior operational leader of a terrorist organization 
or the forces that organization is using or intends to use to conduct 
terrorist attacks.
    Second, the United States will use lethal force only against a 
target that poses a continuing, imminent threat to U.S. persons. It is 
simply not the case that all terrorists pose a continuing, imminent 
threat to U.S. persons; if a terrorist does not pose such a threat, the 
United States will not use lethal force.
    Third, the following criteria must be met before lethal action may 
be taken:
    1. Near certainty that the terrorist target is present;
    2. Near certainty that noncombatants will not be injured or 
killed.'') [The appended footnote further clarifies that 
``Noncombatants are individuals who may not be made the object of 
attack under applicable international law. The term `noncombatant' does 
not include an individual who is part of a belligerent party to an 
armed conflict, an individual who is taking a direct part in 
hostilities, or an individual who is targetable in the exercise of 
national self-defense. Males of military age may be noncombatants; it 
is not the case that all military-aged males in the vicinity of a 
target are deemed to be combatants.'']
    3. An assessment that capture is not feasible at the time of the 
operation;
    4. An assessment that the relevant governmental authorities in the 
country where action is contemplated cannot or will not effectively 
address the threat to U.S. persons; and
    5. An assessment that no other reasonable alternatives exist to 
effectively address the threat to U.S. persons. Finally, whenever the 
United States uses force in foreign territories, international legal 
principles, including respect for sovereignty and the law of armed 
conflict, impose important constraints on the ability of the United 
States to act unilaterally--and on the way in which the United States 
can use force. The United States respects national sovereignty and 
international law.

    \15\ Id. (``America does not take strikes when we have the ability 
to capture individual terrorists; our preference is always to detain, 
interrogate, and prosecute.[A]s a matter of policy, the preference of 
the United States is to capture terrorist suspects.'')
    \16\ Id. (``America cannot take strikes wherever we choose; our 
actions are bound by consultations with partners, and respect for state 
sovereignty.'')
    \17\ Id. (``America does not take strikes to punish individuals; we 
act against terrorists who pose a continuing and imminent threat to the 
American people, and when there are no other governments capable of 
effectively addressing the threat.'')
    \18\ Id. (``Today, I once again call on Congress to lift the 
restrictions on detainee transfers from GTMO.'')
    \19\ Id. (``I've insisted on strong oversight of all lethal action. 
After I took office, my administration began briefing all strikes 
outside of Iraq and Afghanistan to the appropriate committees of 
Congress. . . . [I] do not believe it would be constitutional for the 
government to target and kill any U.S. citizen--with a drone, or with a 
shotgun--without due process, nor should any President deploy armed 
drones over U.S. soil.'')
    \20\ Id. (``Going forward, I've asked my administration to review 
proposals to extend oversight of lethal actions outside of warzones 
that go beyond our reporting to Congress.'')
    \21\ See Obama NDU Speech, supra note 3.
    \22\ See, e.g., Robert Chesney, Jack Goldsmith, Matthew C. Waxman & 
Benjamin Wittes, ``A Statutory Framework for Next-Generation Terrorist 
Threats,'' Hoover Inst. at Stanford Univ. 6 (2013) [hereinafter Hoover 
Report] (Authors are ``skeptical'' that the President's inherent powers 
under Article II combined with ordinary law enforcement tools ``[a]re 
adequate to address any gap that may emerge between what defense of the 
nation demands and what law enforcement and intelligence options can 
provide in extra-AUMF scenarios.'').
    \23\ See, e.g., Melvin Small, ``Democracy and Diplomacy: The Impact 
of Domestic Politics in U.S. Foreign Policy,'' 1789-1994, 30 (1996) (a 
congressional declaration of war without Presidential approval ``has 
never happened . . .''); Jennifer K. Elsea & Richard F. Grimmett, 
``Declarations of War and Authorizations for the Use of Military Force: 
Historical Background and Legal Implications 1'' (2007) (when Congress 
has legislated authorizations for the use of force rather than formal 
declarations of war, ``[i]n most cases, the President has requested the 
authority, but Congress has sometimes given the President less than 
what he asked for.''). Theoretically, Congress may by a two-thirds 
majority declare war over the objections of the President, but ``[i]n 
practice, such a situation cannot be imagined.'' Stephen Vladeck, ``Why 
a Drone Court Won't Work--But (Nominal) Damages Might,'' Lawfare (Feb. 
10, 2013, 5:12 PM) [Vladeck Drone Court].
    \24\ These include various statutory authorities and other agencies 
to make arrests, which are not territorially limited (e.g., 18 U.S.C. 
3052), as well as extraterritorial expansions in civilian criminal 
statutes especially 18 U.S.C. 2339B. For a review of the various legal 
changes that have led to a dramatic increase in counterterrorism 
capacities since 2001, see generally Jennifer C. Daskal & Stephen I. 
Vladeck, ``After the AUMF,'' Harv. Natl. Secur. J. 115, 132-37 (2014) 
[hereinafter Daskal & Vladeck, After the AUMF].
    \25\ See Harold Hongju Koh, Legal Adviser, U.S. Dept. of State, 
``The Obama Administration and International Law,'' Address to the 
American Society of International Law (Mar. 25, 2010) [hereinafter Koh 
Speech] (noting that all operations by the U.S. Government must comply 
with international humanitarian law).
    \26\ See, e.g., Jeh Charles Johnson, General Counsel, U.S. Dep't of 
Def., ``The Conflict Against Al Qaeda and its Affiliates: How Will It 
End?'' Speech Before the Oxford Union (Nov. 30, 2012) [hereinafter 
Johnson Oxford Speech].
    \27\ The term ``associated forces'' first appeared in a Department 
of Justice habeas brief filed during the early days of the Obama 
administration, on March 13, 2009, which argued that the President has 
authority to detain those who ``substantially support'' Al Qaeda or the 
Taliban and ``associated forces.'' Marty Lederman & Steve Vladeck, 
``The NDAA: The Good, the Bad, and the Laws of War--Part II,'' Lawfare 
Blog (Dec. 31, 2011, 4:48 PM). The then-new Obama administration 
offered this narrowed executive interpretation of the AUMF in response 
to calls from many, including myself, to clarify and narrow the 
Executive's tendency to ``construe the vaguely worded Authorization for 
Use of Military Force (AUMF) Resolution to override existing 
legislation . . .'' See Statement of Harold Hongju Koh Before the 
Senate Judiciary Committee, Subcommittee on The Constitution on 
Restoring the Rule of Law, Sept. 16, 2008.
    \28\ In Hamlily v. Obama, 616 F. Supp. 2d 63, 78 (D.D.C. 2009), 
Judge Bates of the U.S. District Court for the District of Columbia 
accepted the Obama administration's interpretation of the AUMF, holding 
that ``[t]he President also has the authority to detain persons who are 
or were part of Taliban or al-Qaeda forces or associated forces that 
are engaged in hostilities against the United States.'' The D.C. 
Circuit has since adopted this language on multiple occasions. See, 
e.g., Al-Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir. 2010); Barhoumi 
v. Obama, 609 F.3d 416, 432 (D.C. Cir. 2010).
    \29\ See FY 2012 NDAA Sec. 1021(b)(2), 125 Stat. at 1562 
[hereinafter 2012 NDAA] (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''). See also Hussain v. Obama, 718 F.3d 
964, 967 (D.C. Cir. 2013) (citing the 2012 NDAA to hold that the AUMF 
authorizes the President to detain individuals who are part of Al 
Qaeda, the Taliban, or ``associated forces''). I should caution that no 
court has yet considered whether precisely the same legal standards for 
membership in or co-belligerency with al-Qaeda should apply to 
determine whether an individual is targetable, as opposed to 
detainable. To trigger a legal right of self-defense sufficient to 
target an individual, the United States might well be required to 
demonstrate that the individual has played a senior operational role 
capable of generating a continuing and imminent threat to the United 
States.
    \30\ See generally Koh Speech, supra note 25 (discussing relevant 
international law standards). In Hamdan v. Rumsfeld, 548 U.S. 557 
(2006), the Supreme Court held that the U.S. was engaged in a NIAC with 
al-Qaeda, and was therefore bound by Common Article 3, a provision 
appearing in all four Geneva Conventions, ``which provides that, in a 
conflict not of an international character occurring in the territory 
of one of the High Contracting Parties [i.e., signatories], each Party 
to the conflict shall be bound to apply, as a minimum, certain 
provisions protecting [p]ersons . . . placed hors de combat by . . . 
detention, including a prohibition on the passing of sentences . . . 
without previous judgment . . . by a regularly constituted court 
affording all the judicial guarantees . . . recognized as indispensable 
by civilized peoples.'' Id. at 562 (quotations omitted).
    \31\ See United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).
    \32\ See The Prize Cases, 67 U.S. (2 Black) 635, 668 (1863).
    \33\ See Daskal & Vladeck, ``After the AUMF,'' supra note 24 
(``[I]t is well settled that the President has inherent authority under 
Article II of the U.S. Constitution and Article 51 of the U.N. Charter 
to take immediate--and, where necessary, lethal--action in defense of 
the nation,'' while noting that the authority to engage in self-defense 
under Article II is not unlimited).
    \34\ Department of State, Letter from Mr. Webster to Lord 
Ashburton, Washington, Aug. 6, 1842.
    \35\ See Daniel Bethlehem, ``Self-Defense Against an Imminent or 
Actual Armed Attack by Nonstate Actors,'' 106 Am. J. Int'l L. 769 
(2012) [hereinafter Bethlehem Self-Defense Principles].
    \36\ As former Legal Adviser to the Foreign and Commonwealth Office 
of the United Kingdom, Sir Daniel Bethlehem, explained: ``While 
`imminence' continues to be a key element of the law relevant to 
anticipatory self-defense in response to a threat of attack, the 
concept needs to be further refined and developed to take into account 
the new circumstances and threats from non-state actors that states 
face today.'' Id. at 5.
    \37\ Id. at 6 (``Armed action in self-defense may be directed 
against those actively planning, threatening, or perpetrating armed 
attacks. It may also be directed against those in respect of whom there 
is a strong, reasonable, and objective basis for concluding that they 
are taking a direct part in those attacks through the provision of 
material support essential to the attacks.'').
    \38\ As one commentator recently put it, ``There is . . . support 
for the argument that a state facing an impending devastating attack 
cannot be expected to have to wait for it to actually strike its cities 
before engaging in forcible self-defence.'' See Noam Lubell, ``The 
Problem of Imminence in an Uncertain World 5'' (M. Weller, ed., ``The 
Oxford Handbook of the Use of Force in International Law,'' forthcoming 
2014) (``There does appear to be a growing number of views that support 
preemptive action when limited to imminent attacks,'' particularly 
against those terrorist networks that have previously attacked a 
country successfully.'').
    \39\ U.N. Charter art. 51 (``Nothing in the present Charter shall 
impair the inherent right of individual or collective self-defence if 
an armed attack occurs against a Member of the United Nations, until 
the Security Council has taken measures necessary to maintain 
international peace and security.''). By so saying, let me make clear 
that I am not supporting the considerably broader notion of 
``preemptive self-defense'' favored by some international lawyers, 
which I have long rejected. See, e.g., Harold Hongju Koh, ``On American 
Exceptionalism,'' 55 Stanford L. Rev. 1479, 1516 (``Preemptive self-
defense arguments cannot clearly distinguish between permitted 
defensive measures and forbidden assaults''); Harold Hongju Koh, 
Comment to Michael W. Doyle, ``Striking First: Preemption and 
Prevention in International Conflict 99'' (2011) (S. Macedo, ed.).
    \40\ See Obama NDU Speech, supra note 3. In 2012, CIA Director John 
Brennan, then-Assistant to the President for Homeland Security and 
Counterterrorism, similarly stated: ``[T]he use of force against 
members of al-Qaeda is authorized under both international and U.S. 
law, including both the inherent right of national self-defense and the 
2001 Authorization for Use of Military Force.'' John O. Brennan, 
Assistant to the President for Homeland Security and Counterterrorism, 
Speech at the Woodrow Wilson International Center for Scholars (Apr. 
30, 2012).
    \41\ Id.
    \42\ See supra note 24.
    \43\ See David Remnick, ``Going the Distance: On and Off the Road 
with Barack Obama,'' The New Yorker, Jan. 27, 2014 (`` `The analogy we 
use around here sometimes, and I think is accurate, is if a jayvee team 
puts on Lakers uniforms that doesn't make them Kobe Bryant,' Obama 
said.'').
    \44\ In recent War Powers Reports to Congress, for example, the 
administration has correctly taken pains to specify that ``[t]he U.S. 
military has taken direct action in Somalia against members of al-
Qaeda, including those who are also members of al-Shabaab, who are 
engaged in efforts to carry out terrorist attacks against the United 
States and our interests.'' Letter from President Barack Obama to 
Speaker of the House, Presidential Letter--2012 War Powers Resolution 
6-Month Report (Jun. 15, 2012) [hereinafter 2012 War Powers Resolution 
6-Month Report], (``the U.S. military has worked to counter the 
terrorist threat posed by al-Qaeda and al-Qaeda-associated elements of 
al-Shabaab'') (emphasis added). By so saying, the administration has 
made clear that it has acted against particular individuals because 
they themselves are part of or co-belligerents with al-Qaeda, not 
because we are at war with all of al-Shabaab.
    \45\ Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 at 635-36 
(Jackson, J., concurring) (``When 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.'').
    \46\ See generally Daskal & Vladeck, After the AUMF, supra note 24.
    \47\ Barack H. Obama, President of the United States, Remarks by 
the President in State of the Union Address (Jan. 28, 2014), (``with 
the Afghan war ending, this needs to be the year Congress lifts the 
remaining restrictions on detainee transfers and we close the prison at 
Guantanamo Bay--because we counter terrorism not just through 
intelligence and military action, but by remaining true to our 
constitutional ideals, and setting an example for the rest of the 
world.'').
    \48\ The March 9, 2012, Memorandum of Understanding (MOU) between 
Afghanistan and the United States transferred authority for Parwan 
detainees to Afghan control after a ``Transition period, which [was] 
not to last more than 6 months.'' Memorandum of Understanding between 
the Islamic Republic of Afghanistan and the United States of America on 
Transfer of U.S. Detention Facilities in Afghan Territory to 
Afghanistan (Mar. 9, 2012).
    \49\ See generally Marty Lederman,`` Justice Breyer's Intriguing 
Suggestions In Hussain: A Sign of Habeas Challenges to Come?'', Just 
Security (Apr. 23, 2014, 10:30 AM), (``[W]hen such active combat 
operations in Afghanistan do cease in the near future, and/or if and 
when the U.S. concludes that al-Qaeda's capabilities have been 
sufficiently degraded so that it is no longer a continuing threat to 
strike the U.S., attorneys for the GTMO detainees will begin to more 
strenuously press the argument that the continued detention of Taliban 
and al-Qaeda forces is no longer necessary and appropriate, on the 
theory that there will be no `battle' to which the detainees might 
return''); Johnson Oxford Speech, supra note 26 (after al-Qaeda's 
defeat, ``[w]e will also need to face the question of what to do with 
any members of al-Qaeda who still remain in U.S. military detention 
without a criminal conviction and sentence. In general, the military's 
authority to detain ends with the ``cessation of active 
hostilities.'').
    \50\ See Charlie Savage, ``U.S. Report Addresses Concern Over 
Obama's Plan to Close Guantanamo,'' N.Y. Times, May 16, 2014, at A17. 
For the full text of the report, see U.S. Dep't of Justice, Report 
Pursuant to Section 1039 of the National Defense Authorization Act for 
Fiscal Year 2014 (May 14, 2014).
    \51\ Stephen I. Vladeck, ``Detention After the AUMF,'' 82 Fordham 
L. Rev. 2189 (2014).
    \52\ One recent proposal worth exploring may be ``[a] compromise 
solution wherein the government transfers or otherwise releases all of 
the detainees who have been cleared for transfer, moves all of the 
other detainees into the United States, and accepts a repeal of the 
AUMF in favor of a more specific authorization for long-term civil 
detention of those detainees who are too dangerous to be released, and 
yet who cannot be subjected to trial in civilian or military court.'' 
Stephen Vladeck, ``Detention After the AUMF,'' Just Security (Apr. 4, 
2014, 1:39 PM). See also Benjamin Weiser, ``Jurors Convict Abu Ghaith, 
Bin Laden Son-in-Law, in Terror Case,'' N.Y Times, Mar. 26, 2014. In 
light of reports that Yemen is making progress toward building a secure 
rehabilitation center to hold Guantanamo returnees, the increasing 
feasibility of transfers to Yemen and other third countries will reduce 
the number of detainees who would need to be held in long-term civil 
detention. See ``Yemen Takes Step to Set Up Secure Rehab for Guantanamo 
Detainees,'' Reuters, May 14, 2014.
    \53\ Abu Ghaith was convicted on three counts for which he could 
face life in prison. See Benjamin Weiser, ``Jurors Convict Abu Ghaith, 
Bin Laden Son-in-Law, in Terror Case,'' N.Y Times, Mar. 26, 2014; Karen 
McVeigh, ``Abu Hamza Found Guilty of Terrorism Charges at New York 
Trial,'' The Guardian, May 19, 2014. (Statement of U.S. Attorney Preet 
Bharara) (``As we have seen in the Manhattan federal courthouse in 
trial after trial . . . these trials have been difficult, but they have 
been fair and open and prompt.'').
    \54\ After interrogation and charging, Warsame pleaded guilty in 
the Southern District of New York in 2011 and is awaiting sentencing. 
See Press Release, Federal Bureau of Investigations, Guilty Plea 
Unsealed in New York Involving Ahmed Warsame, a Senior Terrorist Leader 
and Liaison Between al-Shabaab and Al Qaeda in the Arabian Peninsula, 
for Providing Material Support to Both Terrorist Organizations (Mar. 
25, 2013). See generally Charlie Savage, ``U.S. Tests New Approach to 
Terrorism Cases on Somali Suspect,'' N.Y. Times (Jul. 6, 2011). Abu 
Anas al Libi has pleaded not guilty to all charges, and currently 
awaits trial in the Southern District of New York. See Deborah Feyerick 
& Lateef Mungin, ``Alleged Al Qaeda Operative Abu Anal Al Libi Pleads 
Not Guilty,'' CNN (Oct. 15, 2013, 8:07 PM). See generally Koh Progress 
Report, supra note 10.
    \55\ These include the various statutory authorities enumerated in 
supra note 24. If Congress wished specifically to preserve the 
possibility of the kind of pre-presentment detention (used in the 
Warsame and Al-Libi cases) for the purpose of questioning surviving 
members of al-Qaeda or its co-belligerents about possible future 
attacks, it could narrow the AUMF's detention authority to cover just 
this narrow circumstance. Congress could also codify the preferences 
for counterterrorism operations already explicit in the Presidential 
Policy Guidance: (1) Capture over targeted killing; (2) Law enforcement 
over military action; and (3) Local government action in countries 
whose governments are able and willing. Summary of White House PPG, 
supra note 14. (``The policy of the United States is not to use lethal 
force when it is feasible to capture a terrorist suspect, because 
capturing a terrorist offers the best opportunity to gather meaningful 
intelligence and to mitigate and disrupt terrorist plots. Capture 
operations are conducted only against suspects who may lawfully be 
captured or otherwise taken into custody by the United States and only 
when the operation can be conducted in accordance with all applicable 
law and consistent with our obligations to other sovereign states.'').
    \56\ Compare Hoover Report, supra note 22, with Jennifer Daskal & 
Stephen Vladeck, ``After the AUMF, II: Daskal and Vladeck Reply,'' 
Lawfare (Mar. 18 2013, 7:16 PM), (noting that the Hoover proposal would 
entail ``a much more expansive use-of-force regime than that which 
currently exists.'').
    \57\ See Press Release: Rep. Adam Schiff to Introduce Legislation 
to Sunset Authorization for Use of Military Force (June. 10, 2013). See 
also H.R. 2324 Sunset to the Authorization for Use of Military Force 
Act (2013). In three different years, Rep. Barbara Lee (D-Calif.) and 
33 cosponsors have also introduced a bill that would repeal the AUMF 
180 days after passage. See H.R. 198, Repeal of the Authorization for 
Use of Military Force (2013), H.R.198 Bill Summary & Status, 113th 
Congress (2013-2014).
    \58\ The Patriot Act provides one model for sunset provisions, and 
illustrates how sunset clauses can force congressional debate at the 
time of reauthorization. See Uniting and Strengthening America by 
Providing Appropriate Tools Required To Intercept and Obstruct 
Terrorism (USA PATRIOT) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272.
    \59\ Such a provision would simply require as a matter of law what 
the President is already providing as a matter of policy. See Obama NDU 
Speech, supra note 3 (``After I took office, my administration began 
briefing all strikes outside of Iraq and Afghanistan to the appropriate 
committees of Congress. Let me repeat that: Not only did Congress 
authorize the use of force, it is briefed on every strike that America 
takes. Every strike. That includes the one instance when we targeted an 
American citizen--Anwar Awlaki, the chief of external operations for 
AQAP. This week, I authorized the declassification of this action, and 
the deaths of three other Americans in drone strikes, to facilitate 
transparency and debate on this issue and to dismiss some of the more 
outlandish claims that have been made.'').
    \60\ For examples of recent war powers reports that include drone 
strikes, see 2012 War Powers Resolution 6-Month Report, supra note 44.
    \61\ See Mark Mazzetti, ``Senate Drops Bid to Report on Drone 
Use,'' N.Y. Times, April 28, 2014.
    \62\ See Human Rights Watch, ``Between a Drone and Al-Qaeda: The 
Civilian Cost of U.S. Targeted Killings in Yemen'' (2013); Amnesty 
International, ``Will I Be Next?: U.S. Drone Strikes in Pakistan'' 
(2013); Philip Alston, ``IHL, Transparency, and the Heyns' U.N. Drones 
Report,'' Just Security (Oct. 23, 2013, 4:15 PM).
    \63\ See Sarah Knuckey, ``Human Rights Groups Release Investigation 
Reports into U.S. Targeted Killings: A Guide to the Issues,'' Just 
Security (Oct. 22, 2013, 12:02 AM).
    \64\ See Koh Oxford Speech, supra note 8.
    \65\ One commentator has noted that proposals for a ``drone court'' 
modeled after the Foreign Intelligence Surveillance Court (FISC) face 
``formidable legal and policy obstacles,'' but urges as a first step 
toward creating a meaningful regime of judicial supervision ``the 
codification of a statutory cause of action for nominal damages . . . 
for those unlawfully injured by [drones] . . .''. Vladeck Drone Court, 
supra note 23.
    \66\ See Summary of White House PPG, supra note 14 (``Senior 
national security officials . . . and attorneys . . . including the 
senior lawyers of key departments and agencies--will review and 
determine the legality of proposals.'').
    \67\ See Obama NDU Speech, supra note 3 (``The establishment of a 
special court to evaluate and authorize lethal action has the benefit 
of bringing a third branch of government into the process, but raises 
serious constitutional issues about Presidential and judicial 
authority. Another idea that's been suggested--the establishment of an 
independent oversight board in the executive branch--avoids those 
problems, but may introduce a layer of bureaucracy into national 
security decisionmaking, without inspiring additional public confidence 
in the process. But despite these challenges, I look forward to 
actively engaging Congress to explore these and other options for 
increased oversight.'').
    \68\ British officials were recently the subject of a domestic 
civil lawsuit for allegedly sharing intelligence used to conduct a 
drone strike outside the Afghan theater. See Noor Khan v. Secretary of 
State for Foreign and Commonwealth Affairs (2014). The German federal 
courts are currently considering whether the death of a German citizen 
in an alleged U.S. drone strike was conducted with the help of mobile 
phone data provided by the German Government. See Louise Osborne, 
``Germany Denies Phone Data Sent to NSA Used in Drone Attacks,'' The 
Guardian, Aug. 12, 2013. See also Frederik Rosen, ``Extremely Stealthy 
and Incredibly Close: Drones, Control and Legal Responsibility,'' J. 
Confl. Secur. Law 24 (2013) (``The rapidly growing surveillance 
capacity of drone technology combined with ever more sophisticated 
armed capabilities may suggest a capability for exercising a degree of 
control and authority over territories and persons that may trigger the 
extraterritorial application of the European Convention of Human 
Rights.'').
    \69\ See Robert S. Mueller III, ``Defeating Terrorism Through 
Partnerships, Fed. Bur. of Inves.'' (2008).

    The Chairman. General Mukasey.

  STATEMENT OF HON. MICHAEL B. MUKASEY, PARTNER, DEBEVOISE & 
  PLIMPTON, FORMER ATTORNEY GENERAL OF THE UNITED STATES, NEW 
                            YORK, NY

    Mr. Mukasey. Mr. Chairman, first of all, thank you for 
holding this hearing, thank you for hearing me and having me 
here as part of the process.
    I did submit a brief statement. I do not want to duplicate 
what is in it, because this hearing has developed certain 
questions that I think are on your mind, on the minds of the 
rest of the members, and that I probably ought to address those 
rather than simply go off on my own oration.
    With respect to the questions that you posed to the other 
witnesses at the beginning: Is the AUMF--I think words you used 
were ``broken, obsolete, inadequate''? I am not sure what 
broken means in this context, but obsolete and inadequate, for 
sure. I think that the nature of the threat that we face now is 
essentially the same as the nature of the threat we faced on 
and before 9/11, even though we may not have been fully aware 
of it before 9/11, and that is that there are people who are 
committed, as a matter of religious belief, so they say, to 
destroy Western civilization, and we are the principal focus of 
their energies and their activities, although we are not the 
only focus. We could declare, tomorrow, that the war was over, 
we could repeal the AUMF, we could repeal every enabling piece 
of legislation that we have, and that would not change their 
agenda. They get a vote in this. And I think that it is 
unrealistic for us to talk about simply taking a statute off 
the books, as if that, in fact, would change facts on the 
ground.
    I do think, however, that the AUMF can, and should, be 
changed. In what ways? It names--it does name particular 
entities; it names al-Qaeda, it names the Taliban, it talks 
about associated groups and groups that are working in concert 
with them. What that has necessitated, as you saw, to some 
extent, with the testimony of the prior witnesses, is some 
degree of somersaults to find out whether this organization or 
that organization is or is not associated, is or is not 
supporting al-Qaeda as it has been identified? I think, rather 
than doing that, you could come up with a list of 
organizations, come up with a set of goals that those 
organizations pursue in common, and then, in very much the same 
way that the State Department puts groups on the lists of 
foreign terrorist organizations, have a consultative process 
involving the State Department, the Defense Department, the 
Justice Department, and Homeland Security to include entities 
that, whether they are directly associated, or not, are 
pursuing the same goal that we know generated the attacks of 9/
11 and attacks before that, that Congress would then maintain 
an ongoing involvement with that process and could examine the 
legitimacy of having groups on that list, or not, and could 
examine what steps had to be taken.
    Detention authority is not even mentioned in the AUMF and, 
as I understand it, is simply a derivative authority from the 
existence of a war. I think we ought to provide for detention 
authority in a straightforward way, determining who, how, and 
under what circumstances.
    And I am happy to answer your questions.
    [The prepared statement of Mr. Mukasey follows:]

                Prepared Statement of Michael B. Mukasev

    First, I would like to thank the committee, through its chairman 
and its ranking member, for addressing an issue vital to the security 
of this country--namely, whether the Authorization for the Use of 
Military Force (AUMF), passed in the days following the attacks of 
September 11, 2001, still provides all the authority necessary to 
protect us. And thank you as well for the privilege of testifying on 
this subject.
    The AUMF, as you will recall, authorized the President to ``use all 
necessary and appropriate force against those nations, organizations, 
or persons he determines planned, authorized, committed or aided the 
tenorist attacks that occurred on September 11, 2001, or harbored such 
organizations or persons. . . .'' Upon passage of the AUMF, all three 
branches of government understood that language to authorize force 
against al-Qaeda--the organization that planned and carried out those 
attacks, and the Taliban, the organization that once controlled 
Afghanistan and harbored al-Qaeda. The power to detain prisoners is not 
specified anywhere in the AUMF; it has been read into the statute as an 
implied power of the sort incident to a war.
    Events since September 11, 2001, including successes of two 
administrations in combating both al-Qaeda and the Taliban, have made 
the AUMF not only obsolete, but dangerously so; future events--
including the current administration's decision to cease the war in 
Afghanistan by mid-December 2014--threaten to make it even more 
irrelevant.
    What has been referred to colloquially as core al-Qaeda has been 
diminished, and the Taliban no longer formally control Afghanistan. 
However, other groups loosely related to al-Qaeda, or having the same 
goals, have sprung up across a broad arc of countries stretching from 
Asia to Africa, and perhaps in Latin America as well. Some call 
themselves al-Qaeda--for example, Al Qaeda in the Arabian Peninsula and 
Al Qaeda in the Islamic Maghreb; others do not--for example, Ansar al-
Sharia in Libya and the al-Nusra Front in Syria. Their effects have 
been seen in conduct as diverse as the attack that killed our 
Ambassador and three others in Benghazi, in plots to set off bombs in 
New York's subways and in Times Square. They are inspired by a common 
ideology that claims to find authority in the Quran. That claim is one 
that will have to be resolved by Muslims, but Western civilization in 
general, and the United States in particular, is the focus of that 
ideology and it is not going away any time soon. Simply saying that 
there is no war will not fend off the violence generated by that 
ideology any more than the absence of a state of war before September 
2001 prevented the attacks of 9/11.
    In spite of the actual or potential lethality of these groups, it 
becomes increasingly difficult to identify them with any certainty as 
``affiliates'' or ``supporters'' of 
al-Qaeda, and we find ourselves going through increasingly fanciful 
contortions in order to fit them within the definitions in the AUMF so 
as to permit action to be taken against them.
    There are some who have suggested that we can rely on the authority 
inherent in Article II's grant of ``the executive power''--all of it, 
to the President, to authorize any response to these people and groups. 
Even if that authority is sufficient to permit a President to act in an 
emergency, I think there is no way it can be sufficient politically to 
permit long-term action. I believe that a basis in legislation is 
necessary to confer that kind of political authority.
    Although it might be possible to define the conduct of these groups 
in a comprehensive yet precise enough way to permit the President to 
act, there are bound to be close decisions to be made, and I do not 
think it is politically wise or even possible simply to delegate to the 
President the authority to determine who does and who does not fit the 
statutory definition.
    As others have, I urge the committee to consider and send to 
Congress legislation that would designate some groups that we know 
about, and create a mechanism for designating others, perhaps in the 
way that the Secretary of State now designates groups as Foreign 
Terrorist Organizations, through a group drawn from the Departments of 
State, Defense, Justice, and Homeland Security. I am certainly no fan 
of sunset provisions, and I do not believe that there is any sunset 
provision in any authority that inspires our enemies. However, I 
recognize that it may be politically difficult to authorize an open 
ended use of force, particularly when the people and groups against 
whom it is used may expand with time. Accordingly I recommend that a 
rational but limited deadline be established--perhaps 10 years--beyond 
which the authority would expire unless extended.
    You may also wish to address related issues, including criteria for 
targeting drone strikes against U.S. citizens abroad away from the 
battlefield and a requirement that at least the number of such strikes 
and the estimated number of victims, both intentional and collateral, 
be reported.
    These suggestions subsume many issues and invite many questions, 
and I would be happy to explore those issues and attempt to answer some 
of those questions in my oral testimony. Again, I am grateful to the 
committee for allowing me to participate in its important work.

    The Chairman. Well, thank you.
    Thank you both very much.
    Let me go to--ask you both of--one of the first questions I 
asked the previous panel. What does the 9/11 AUMF provide the 
President, in terms of authorities to use force, that he does 
not already possess in other authorities?
    Mr. Koh. So, Senator, I think a point that did not clearly 
emerge is, there are two states of affairs. One is armed 
conflict. When we are in an armed conflict with an organized 
group that is of a certain intensity and duration, as a matter 
of law, it is easier to conduct that ongoing struggle until you 
reach a point where they are defeated. And certainly, on 
September 19, 2001, we were in that state of affairs. You had 
al-Qaeda, the Taliban, and associated forces. That went on, and 
many major actions were taken as part of an armed conflict.
    At a certain point--and this is what Jay Johnson called the 
``tipping point''--you could say that that group has, 
essentially, been defeated. They may not surrender, but, at 
that point, they are less of an organized group than they are a 
set of threats. And when you have that set of threats and you 
consider them a continuing imminent threat, you can get rid of 
the belt and go with the suspenders, which is the authority to 
respond to those continuing imminent threats in self-defense 
against known attackers.
    And the question is, When do you do that? You have to do it 
when the situation on the ground permits. So, you were giving 
the example of Iraq. It may well be that now, several years 
after all troops are withdrawn, is a good time to withdraw the 
AUMF authority; where it might not have been, in the last days 
of the drawdown, when there were still American soldiers there.
    So, that is the key; we have a belt-and-suspenders system, 
but the armed-conflict scenario works best when you are in an 
ongoing armed conflict with an organized, armed group and you 
need to be using targeting and detention on a very regular 
basis. That does not fit well into the sporadic threat 
scenario.
    The Chairman. But, my question still prevails, in trying to 
get a greater clarity of answer. Could the President have--
conduct and continue to conduct all activities that he has--
being conducted, absent an AUMF of 9/11?
    Mr. Koh. Well, I do not--I am no longer part of the 
information flow on the threat stream. My view is that some 
parts of al-Qaeda have been pretty much subdued, other parts 
are still very active--AQAP, AQIM. And then there are other 
entities which are dangerous, but they are not going to attack 
the homeland and they are not part of al-Qaeda and they do not 
fall under the AUMF. However, they do present continuing and 
imminent threats. For example, the Benghazi attackers. So, you 
have the legal authority to respond to them, even without an 
AUMF.
    The Chairman. General Mukasey, do you have a view?
    Mr. Mukasey. I think part of it was responded to before--
the AUMF does override the War Powers Act. And so, any action 
taken would not have to be reported under the War Powers Act. 
In addition, it provides a coordinating mechanism for 
responses. Yes, there is Article 2 authority for the President 
to respond to imminent threats. But, evaluating imminence, as 
was pointed out before, can be an elusive process, particularly 
when obviously we are not privy to the plans of terrorists. 
They do not tell us precisely when they are going to act, they 
do not tell us, necessarily, even what, precisely, they are 
planning. But, once they are identified as a terrorist 
organization, it is, I think, rational, at least, to consider 
members of those organizations, and the organizations 
themselves, to constitute imminent threats, unless there is 
good evidence to the contrary.
    The Chairman. The previous panel suggested, I think, by 
their testimony, that, absent the AUMF, Article 2 provisions 
would give the President all the authorities that he needed to 
continue to conduct those operations. Almost seemed like it was 
superfluous to have an AUMF. Is that a view that you share? And 
if not, what is the difference, in your view?
    Mr. Koh. So, Senator, a little history of the kind that 
Senator Durbin recalled, I think is helpful. On September 11, 
the Nation was shocked, people wanted the President to respond 
with all available tools. He could invoke his Article 2 
authority, but Congress gave him a very broad statutory 
authority, as well. But, it was supposed to be against those 
people who were responsible for September 11 and to prevent a 
future September 11.
    In the last administration, these two rationales were 
merged. Constitutional authority was invoked all the time, the 
AUMF was used in a very broad way. There was a lot of objection 
to that. At the beginning of this administration--at this 
point, we were in the middle of habeas litigation, et cetera--
the Justice Department offered a narrowing interpretation of 
the AUMF, and the Obama administration shifted to the AUMF as 
the main basis for its activities. It rejected the notion that 
there was a Global War on Terror, but said that there was a war 
against al-Qaeda, the Taliban, and associated forces that was 
not limited to just one country, but it was not limited--it was 
not the whole world, either. And the net result of that is, 
there has been more of a convergence on the legal rationales.
    A year ago, the President, at the NDU, not only gave a 
speech setting forth the standards, but signed Presidential 
policy guidance specifying those standards. So, I think we are 
now operating in a world in which the President's power is, by 
his own statement, much more constrained. And he stated that 
his long-term goal is to bring the war to an end.
    The Chairman. So, based upon your answer, if the AUMF was 
repealed and the President, as you described, relying upon that 
AUMF for action, would either have to cease such activities or 
he would then have to turn to his--to make his Article 2 
claims.
    Mr. Koh. Well, let me just make a hypothetical situation. 
If the President thought he needed to make 100 more strikes 
against 
al-Qaeda to defeat them, it would be very unwise to eliminate 
the AUMF. If he thought that the core of al-Qaeda has been 
defeated, that al-Qaeda--those remnants might occasionally 
strike, that would be a moment in which it would be safe to 
move for repeal of AUMF authority and rely on self-defense 
authorities, going forward. In other words, the self-defense 
arguments are not all-purpose alternatives.
    Finally, if Congress wanted to codify the self-defense 
authorities in a more limited way, that would be a narrowing of 
the AUMF. And, to my mind, that would be more appropriate for a 
situation in which there were fewer need to attack or detain 
al-Qaeda, the Taliban, or associated forces.
    The Chairman. What would happen to the government's legal 
authority to continue to detain prisoners at Guantanamo if, 
hypothetically, the 2001 AUMF were repealed?
    Mr. Koh. Well, again, Senator, it would depend on how many 
people were there. If there are 150 people or so, if those who 
are in Yemen have been moved to Yemen pursuant to negotiations 
that are apparently going on, if those who are Taliban had 
moved off, if you are talking about a small group of people, 
some of those individuals might be still detainable under 
criminal detention authorities, some of them might be 
detainable under immigration detention authorities, some of 
them might have to be dealt with by new legislation considered 
by you. But, that would be, at that point, a very small number 
of people, say 30 people as opposed to 150 people.
    The Chairman. Regardless of the size, what is the legal 
authority if the AUMF is repealed? What is the legal authority 
to detain people at Guantanamo?
    Mr. Koh. Well, we just have to remember, Senator, that the 
AUMF is belligerent combatant authority, authority to use 
necessary and appropriate force against belligerent combatants. 
Individuals may not be detainable as belligerent combatants, 
but they may be criminals, they may have committed immigration 
violations, they may be subject to other forms of civilian 
detention. And you have to evaluate that on an individualized 
basis.
    The Chairman. But, civilian detention in a place like 
Guantanamo?
    Mr. Koh. My understanding is that the goal would be to move 
people off of Guantanamo. But, this is, to me, akin to the 
question--if you are trying to bail out a boat, you worry about 
the last 4 inches of water when you get there. I think the main 
challenge now is to bring the numbers in Guantanamo down by 
moving off people who can be transferred, by moving off 
people----
    The Chairman. I would disagree----
    Mr. Koh [continuing]. Through negotiations----
    The Chairman [continuing]. Insofar as that there is a 
broader essence of policy of what is the legal authority to 
maintain people in a place like Guantanamo, whether 150 are 
there and tomorrow there will be a different Guantanamo. And 
that is what I was trying to----
    Mr. Koh. So, Senator Menendez, the Justice Department, last 
week, issued a report, in response to a congressional mandate, 
which described the legal authorities that would be used if 
individuals were brought from Guantanamo to the United States. 
And I think they would be anticipating a relatively small 
number at the point in which that would be exercised. They 
argued there are various legal authorities. I think you would 
have to engage them to see whether you agree.
    The Chairman. Senator Corker.
    Senator Corker. Thank you, Mr. Chairman.
    And thank you both for being here.
    It seems to me that the description of ``imminent threat'' 
is one that, over time, needs to be teased out. I mean, do you 
guys agree that imminent threat is one that can evolve, 
determined--based on what someone actually wants to do and, 
really, is difficult to define?
    Mr. Koh. I think the term that is being used is 
``continuing and imminent threat,'' which is even a narrower 
set of people. So, we know what an imminent threat is, Senator. 
You know, a guy gets on a plane wearing underwear in his bomb--
a bomb in his underwear or in his sneakers, and the next thing 
to do is to launch the attack. That is an imminent threat.
    But, if you have an organization which is repeatedly 
planning attacks, and sometimes they use underwear bombs, 
sometimes they use shoes, sometimes they use cartridges, 
sometimes they use something in Times Square, the need to act 
against them may come earlier, because they never use the same 
delivery mechanism twice. I mean, they will not fly a plane 
into the Twin Towers----
    Senator Corker. And I think the point you make about that 
type of threat is, certainly, really clear. But, my guess is, 
if we get into a classified setting and discuss these things, 
there are numbers of groups that the administration has 
determined that are under, you know, this imminent-threat 
issue, and, you know--I do not know, AQAP, I do not know, are 
they planning threats against us today? ISIS, in Syria, are 
they--right now, they have their hands full. My guess is, at 
some point they may well do that. But, if we determined that 
they were an imminent threat----
    Mr. Koh. Senator----
    Senator Corker [continuing]. I think that would be an 
interesting----
    Mr. Koh [continuing]. Your question----
    Senator Corker. Is that not an interesting question to you?
    Mr. Koh. You have looked at this intelligence and in----
    Senator Corker. No, I have not looked at intelligence. I 
want to make sure any intelligence people watching--I have not 
looked at the intelligence. I am just basing my question off 
the last witness.
    Mr. Koh. In general terms, the primary factors are whether 
they attacked us before, whether they had success in that, and 
whether they are planning to attack us again in the very near 
future, and whether all signs leave no innocent explanation for 
that. That is an imminent threat.
    Senator Corker. And to the question that Mr. Preston raised 
earlier about Afghanistan and getting back to the fact that the 
administration has not called this a Global War on Terror, but 
has--you know, is certainly carrying out counterterrorist 
operations all around the globe, if Afghanistan winds down at 
some point--let us say 24 months from now we do not have people 
doing what they now, today, are doing--would there need to be 
an AUMF to continue to strike entities that, you know, could 
pose a threat to us down the road? And I would like both of you 
to answer that, if you would.
    Mr. Koh. Unfortunately, there are many terrorist networks. 
But, you can distinguish two kinds: those who want to attack 
us--attack our buildings, attack our people, attack our soil--
and those who are just dangerous or have local aspirations, and 
they may not like us. Now, the latter group are not members of 
al-Qaeda, we are not at war with them; and we may not like them 
and they may not like us, but we have to keep them under 
surveillance. The group that we care about are those who would 
attack the homeland and who pose a continuing and imminent 
threat of doing so, and where you think that there is a very 
good likelihood, because they did it before.
    Senator Corker. Mr. Mukasey.
    Mr. Mukasey. The standard is continuing imminent threat. I 
think where I part company, to a certain extent, with Professor 
Koh is the characterization of some of the local groups as 
people who, ``do not like us.'' It is much more than that. They 
are people who have this attacking our homeland figuratively on 
their list of things to do on the refrigerator in the morning, 
if they had refrigerators. So, I think I would be somewhat more 
generous in my definition. But, yes, it has to be a continuing 
imminent threat, and one that can be rationally interpreted as 
continuing imminent threat.
    Senator Corker. And so--but, let me come back. I mean, if 
we end the actual physical operations that we have ongoing in 
Afghanistan, I know there may be covert activities that would 
not as Murphy pointed out earlier, may not be defined under 
these--but, would we need to continue to have an AUMF of any 
kind to continue our fight against, not the Global War on 
Terror, per this administration, but terror that happens all 
around the world?
    Mr. Mukasey. As a legal matter, there is at least one vote 
in Hamdi that says that we need it in order to detain. But, 
more broadly--and I know the last group was cautioned to stay 
away from policy, but this does trench into policy--we need 
some kind of backing from Congress in order for the country to 
be behind any effort that we make. And that is true regardless 
of where we do it.
    Senator Corker. But, I do not think Mr. Koh agrees with 
that.
    Mr. Koh. Well, I agree with your view, Senator, that 
Congress has a role to play in defining how much authority it 
wants the President to have to deal with the current situation. 
And the current situation, it seems to me, is one where if the 
organizations with which we have been in armed conflict for the 
last 13 years are reduced in danger, you could shrink the AUMF 
to address their remnants or, at a certain point, when you 
think that they are a sporadic threat, you could eliminate the 
AUMF altogether and rely on continuing and imminent threat. 
But, that would allow you, for example, it seems to me, to have 
legal authority to--as an imminent threat, deal with the people 
who killed our citizens in Benghazi. They did it before, they 
pose a continuing imminent threat, they seem to raise those 
issues. Now, there would be things that would need to be done. 
If the Libyan Government is capable of addressing them, you 
might have to defer to that first.
    Senator Corker. Mr. Chairman, thank you.
    And thank you both for being here.
    The Chairman. Senator Murphy.
    Senator Murphy. Thank you, Mr. Chairman.
    Mr. Koh, I really appreciate your suggestions on how 
Congress can grapple with this expanded Article 2 authority, 
especially in perhaps the future absence of an AUMF.
    I guess you hear that one of the questions--this is a 
question for General Mukasey, as well--you hear that we have 
twin struggles here. We have a struggle with what authority we 
grant the President, and then we have a struggle with what 
role, then, Congress plays to oversee that authority. And part 
of the danger that I see is that, as more and more potential 
activities happen under covert authorities, there is a very 
small group of Senators and Congressmen that actually get to 
oversee those questions of what is an imminent threat. There is 
a tiny, select group of people who have jurisdiction and 
clearance in order to determine whether there is or is not an 
imminent threat that would trigger those Article 2 authorities.
    I would love to get rid of AUMF, but my concern is that we 
then live in a world in which the determination of imminent 
threat and the factors that go into that are available to be 
debated by a very small number of Senators and Congressmen. 
And, given how fuzzy the first panel suggested the limitations 
on that authority are, reserving the authority, as I heard it, 
to take action against a sovereign nation without consulting 
Congress first, what is both your recommendations on how we 
provide for a more robust and open debate in Congress about the 
specifics relative to authorities under Article 2?
    Mr. Koh. So, Senator, your questions, I think, illustrate 
the--how to--what is the relationship between constitutional 
authority of the President and statutory authority of the 
Congress. And maybe the best way to think of it is what we call 
``framework statutes.'' There is a constitutional space in 
which the President can act. And if he acted under 
constitutional authority, it would not be illegal, but he has 
no guidance. And so, in many areas of the law--intelligence 
oversight, international emergencies, sanctions, arms export 
control--Congress has passed, essentially, framework 
legislation that defines what can or cannot be done, defines 
reporting requirements, defines who is supposed to be part of 
the process, and clarifies what some of these issues mean. For 
example, it could clarify what ``continuing and imminent 
threat'' means.
    Now, the reason why it is important to put it this way is, 
if that statute suddenly disappeared, would the President still 
have authority? As a constitutional matter, probably, yes. But, 
would that be the best policy, as opposed to working with 
Congress to be what they called in the ``Steel Seizure Case,'' 
category 1, the highest level of legitimacy? Clearly, it is 
better for Congress to have framed this constitutional space 
and then for the President to operate pursuant to these rules, 
both the restrictions as well as getting the authorities.
    Senator Murphy. General Mukasey, do you see a policy danger 
in a limited number of Members of Congress being involved in 
these discussions about Article 2 authority in the absence of 
AUMF?
    Mr. Mukasey. Of a statute?
    Senator Murphy. Yes.
    Mr. Mukasey. Absolutely. And I think you put your finger on 
a good reason for not simply letting the AUMF lapse or get off 
the books, but, rather, reshaping it, doing some of what 
Professor Koh suggested, maybe some of what I suggested before. 
You have--because if you have a statute on the books, then this 
committee, the Intelligence Committees, the Armed Services 
Committee can conduct their oversight functions in addition to 
having particular Members of Congress briefed, and--a limited 
number of Members of Congress briefed, and have that 
information restricted to only a few people.
    Senator Murphy. And I think the claim that many of us is--
have made is that, as we have seen broadened the authority to 
conduct activities under Article 2, to conduct ongoing large-
scale military activities in a covert manner, it becomes more 
problematic to not have the Foreign Relations Committee and the 
Foreign Affairs Committee read into those matters, because they 
have broad and sometimes crippling foreign policy implications 
for the United States. I think it is a worthwhile endeavor.
    I want to just follow up on some questions that the 
chairman was asking the first panel specific to the authority 
on operations in Syria. I am not sure that we got--I think the 
answer was--is that there was authority for the President to 
conduct military operations in Syria, as was initially 
proposed, without congressional authorization. I was not 
particularly clear as to where that authority would have come 
from. But, let me just ask that to both of you.
    Do you believe that the President had authority, should he 
have decided independently to take military action in Syria, as 
he had proposed and asked Congress for authority, without 
congressional authorization?
    Mr. Koh. So, I think it depends on what he would have done. 
If what he did was simply hit a bunch of chemical weapons 
sites, and that was a one-time thing, we would be hard-pressed 
to say that was unconstitutional.
    The question, as a matter of law, is, Is it war, in a 
constitutional sense? If it is war, Congress has to approve it. 
A one-time hit on a bunch of chemical weapons may not rise to 
the level. If it goes on for 60 days, then, under the War 
Powers Resolution, the question is, Is it hostilities, in a 
statutory sense? And, contrary to what Senator Corker said, the 
setting up of the no-fly zone happened in 10 days. Sixty days 
on, less than 1 percent of the ordnance in Kosovo was being 
dropped in Libya. My view was then, and remains, that it was 
not hostilities, in a statutory sense.
    I want to come back to one point, Senator, which I think is 
important. I think Congress has three options. One bad option, 
which I would urge you not to pursue, which is to use a sense 
of frustration with the AUMF to expand it and extend it 
inadvertently. I think that would perpetuate war. I think you 
have two good options, or two better options than that. One is, 
if you want to narrow it to meet the current situation, and 
then ultimately repeal it, that is the best. If this is not a 
good time to legislate because people cannot agree, you could 
see whether the situation on the ground leads to the eventual 
diminishing of the threat of al-Qaeda, and just repeal it 
later. In other words, not narrow, but just move right to the 
repeal later on down the road.
    But, I think that is the real choice. Do not extend and 
expand. Either wait and repeal or narrow and repeal.
    Senator Murphy. I know we have a vote on the floor, so I 
will yield back at this point.
    The Chairman. Okay.
    Well, with the thanks, to both of you, of the committee for 
your insights--and I have a feeling we will be continually 
seeking to engage you in the days ahead--the record for this 
hearing will be held open until the close of business on 
Friday.
    And, with that, this hearing is adjourned.
    [Whereupon, at 12:28 p.m., the hearing was adjourned.]
                              ----------                              


              Additional Material Submitted for the Record


                Written Statement of Human Rights First

                      summary and recommendations
    Human Rights First welcomes the Senate Foreign Relations 
Committee's attention to the status and future of the 2001 
Authorization for the Use of Military Force (AUMF). The debate at hand 
raises profound legal and policy issues that are critical to our 
democracy and our security. Is the United States engaged in armed 
conflict as defined by international law? If so, does the 2001 AUMF 
meet domestic and international legal criteria for authorizing the 
types of use of force that the U.S. is now employing?
    These questions may seem inessential at best to policymakers and 
operators intent on securing authorization to go after a suspect or 
push an interrogation in real time. And they may seem academic or a 
luxury when placed against the lives of comrades lost on the 
battlefield in Afghanistan, or the fate of 200 girls ripped from school 
into sexual servitude.
    In fact, the strong wall between war and peace underpins the 
democratic stability that Boko Haram wants to keep out of Nigeria and 
Osama bin Laden sought to undermine here at home. A state of perpetual 
warfare skews our policymaking framework toward decisions designed to 
eliminate--rather than manage--threats, an unrealistic goal that leads 
to unbalanced and unhealthy policy results. The longer the United 
States remains in a state of armed conflict to take advantage of the 
flexibility war allows, the more likely it is that extraordinary powers 
become the norm and, in the worst case, that policies creep in that are 
the hallmarks of dictatorships and enemies of human rights: detentions 
without charge or trial, extrajudicial killings, military tribunals, 
and mass surveillance.
    In recent years, military and diplomatic leaders have documented 
the high increasing costs of prolonged and global armed conflict: 
partners and allies reluctant to cooperate on counterterrorism 
operations, authoritarian leaders cynically pointing to U.S. excesses 
to justify their own repressive policies, loss of support and trust in 
American efforts among publics in countries such as Yemen. At home as 
well, public controversy and distrust has risen around every aspect of 
our wartime activities. And counterterrorism professionals continue to 
point to a suite of core competencies--nonmilitary policies that are 
essential to our security--that are underemphasized and underresourced.
    To date, Congress, military leaders, and outside experts have 
debated reforms and transparency piecemeal. Below, Human Rights First 
reviews the legal and policy ramifications of maintaining the current 
AUMF, adopting a new one, or moving to reliance on nonwar national 
security authorities, and makes the following recommendations:

   Congress and the administration should publicly debate and 
        clarify the shifting nature of the threat posed by Al Qaeda, 
        and the core competencies and additional legal authorities, if 
        any, needed to keep Americans secure.
   The administration should remedy the lack of transparency 
        about current U.S. policy under the AUMF, by disclosing to 
        Congress and the American people:

        With which groups the administration considers the United 
            States to be at war;
        Which groups the administration considers to be 
            ``associated forces'';
        The countries in which military force is currently being 
            used, the criteria it uses to classify targets and 
            collateral damage; and
        Any and all legal memoranda and policy guidance that 
            govern lethal targeting operations.

   The administration should describe in concrete and specific 
        terms the conditions necessary to bring an end to the armed 
        conflict with Al Qaeda and associated forces.
   The administration should clarify and reform its legal and 
        policy framework for the use of lethal force outside of active 
        zones of hostilities to put it on more solid footing by 
        bringing it further in line with the requirements of 
        international human rights law.
   Congress should hold a series of hearings, with the 
        cooperation of the administration, to examine the most 
        effective way to narrow and ultimately repeal the 2001 AUMF. 
        Congress should not pass any new AUMF that would expand the 
        mandate contained within the 2001 AUMF.
   The administration and Congress should seek and implement a 
        bipartisan solution to remove one of the most problematic 
        legacies of the AUMF--the detention facilities at Guantanamo 
        Bay--by transferring all cleared detainees to their home or 
        third countries, prosecuting detainees suspected of criminal 
        conduct in Article III courts, and transferring the remaining 
        detainees to the United States with a view toward their 
        ultimate release or prosecution elsewhere.
                              introduction
    Is war the best way for the government to organize, and citizens to 
understand, a campaign that reflects few of the attributes of how we 
understood war for hundreds of years?
    The law has much to say about this; America's best lawyers and 
soldiers believed a clear separation between wartime and peacetime 
behavior was essential, and worked to codify it in our laws and 
international law.
    This hearing has as its starting point a legal debate: is the 
United States engaged in armed conflict as defined by international 
law? If so, does the 2001 AUMF meet domestic and international legal 
criteria for authorizing the types of use of force that the U.S. is now 
employing?
    These questions may seem inessential at best to policymakers and 
operators intent on securing authorization to go after a suspect or 
push an interrogation in real time. And they may seem academic or a 
luxury when placed against the lives of comrades lost on the 
battlefield in Afghanistan, or the fate of 200 girls ripped from school 
into sexual servitude.
    In fact, the strong wall between war and peace underpins the 
democratic stability that Boko Haram seeks to keep out of Nigeria and 
Osama bin Laden sought to undermine here at home. A state of perpetual 
warfare skews our policymaking framework toward decisions designed to 
eliminate--rather than manage--threats, an unrealistic goal that leads 
to unbalanced and unhealthy policy results. The longer the United 
States remains in a state of armed conflict to take advantage of the 
flexibility war allows, the more likely it is that extraordinary powers 
become the norm and, in the worst case, that policies creep in that are 
the hallmarks of dictatorships and enemies of human rights: detentions 
without charge or trial, extrajudicial killings, military tribunals, 
and mass surveillance.
    Congress, military leaders, and outside experts have debated such 
reforms piecemeal, out of concern for fundamental rights and freedoms 
and a sense that U.S. counterterrorism efforts are warped by an 
overemphasis on tools available in wartime.
    Course correction must come with limiting the scope of the 
government's claimed armed conflict to situations that actually 
resemble war--the exchange of hostilities of sufficient intensity 
between the United States and another state or an organized armed 
group. They can begin when the administration sets out clearly where 
and against whom it believes the United States to be in an armed 
conflict, and works with Congress to decide whether such authority is 
the wisest choice to achieve its objectives. The United States clearly 
remains in an armed conflict in Afghanistan. However, counterterrorism 
operations far from any battlefield against groups that have limited to 
no connection to core Al Qaeda or the Taliban and the 9/11 attacks do 
not fall within an armed conflict framework, unless the facts on the 
ground meet the legal test for what constitutes an armed conflict under 
international law: ongoing hostilities of sufficient intensity with an 
organized armed group. Sporadic acts of violence or terrorist attacks 
by groups or individuals do not meet this test.
    Despite the best efforts of intelligence and security agencies, the 
United States will likely continue to face threats from terrorism, 
which may result in successful terrorist attacks such as the attacks 
against our Embassy in Benghazi on September 11, 2012. The response, 
however, cannot and should not be to declare war or authorize the use 
of military force against any terrorist group that presents a concern 
to the United States. To do so would not only be inconsistent with the 
fundamental principles of the rule of law, but would also likely be 
ineffective in the long-term struggle against extremist groups that 
seek to goad the U.S. into overreaction.
                           what is the aumf?
    Three days after the unprecedented attacks of September 11, 2001, 
Congress passed the most open-ended Authorization for the Use of 
Military Force (AUMF) in American history. This law's key 60-word 
sentence granted then-President George W. Bush power to use ``all 
necessary and appropriate force against those nations, organizations, 
or persons'' that he determined either executed the attacks or aided 
those who did.\1\
    The AUMF does not specify whom its mandate is directed against, or 
what military objectives would satisfy the mandate. Perhaps 
consequently, in the nearly 13 years since its passage, the AUMF has 
been invoked not only to conduct the war in Afghanistan but also to 
justify targeted killings under the drone program reaching from Somalia 
to Yemen and the prolonged detention without charge of prisoners in 
Guantanamo Bay and Bagram Air Field. It has contributed to a wartime 
climate enabling expanded government powers such as the PATRIOT Act and 
the NSA's expansive domestic surveillance programs.
                             why revisit it
    The 2001 AUMF was passed by Congress within days of the 9/11 
attacks, before the Bush administration had identified with certainty 
the full universe of those perpetrators.
    As the Obama administration prepares to end combat operations in 
Afghanistan, numerous legal authorities have called into question the 
continued viability of the AUMF. The Supreme Court stated of the AUMF 
in Hamdi v. Rumsfeld that ``If the practical circumstances of a given 
conflict are entirely unlike those of the conflicts that informed the 
development of the law of war, that understanding [of who may be 
detained until the cessation of hostilities] may unravel.'' \2\ This 
concern has been echoed by Brigadier General Mark Martins,\3\ chief 
prosecutor for the military commission trials at Guantanamo Bay, and 
former Pentagon General Counsel Jeh Johnson,\4\ now Secretary of 
Homeland Security.
    The 2001 AUMF is, on paper, confined to organizations responsible 
for committing or helping with the 9/11 attacks, or others who harbored 
them--generally understood to be core Al Qaeda, the group directly led 
by Ayman al-Zawahiri, and the Taliban in Afghanistan, and other groups 
directly engaged in hostilities with the United States. The 
administration has officially interpreted those organizations to 
include Al Qaeda and ``associated forces,'' including groups such as Al 
Qaeda in the Arabian Peninsula (AQAP), even though groups such as AQAP 
have little to no connection to the 9/11 attacks.
    Terrorist organizations in the headlines today, and groups that now 
pose specific, credible threats to the United States, often have a 
loose or unclear connection to ``core Al Qaeda'' and the 9/11 
attackers. Security professionals from across the political spectrum 
have commented that the 2001 AUMF bears little relevance to the shape 
of the struggle against terrorist groups that the U.S. remains engaged 
in.
    At least as important, the greatly varying tactics and levels of 
competence and ambition of our adversaries do not lend themselves to 
the set of rules and policies set aside in law as ``armed conflict,'' 
or the all-or-nothing approach evoked for Americans by the word 
``war.''
``Armed Conflict'' is no longer the most effective paradigm for U.S. 
        counterterrorism policy
    An overreliance on our military does a disservice to the 
extraordinary economic, diplomatic, and human capital resources that 
the United States can marshal in support of policy goals. Moreover, 
pursuing an unachievable goal of complete security, contributing to an 
inability to contextualize threats appropriately and deploy a full 
range of counterterrorism strategies short of war-making contributes to 
a dangerous stagnation in the foreign policy making apparatus of the 
U.S. Government.
    Shifting away from the authorities created by the overstretching of 
the 2001 AUMF is the first step in reforming U.S. counterterrorism 
policy. By continuing institutional development of core competencies 
and acknowledging the shifting nature of the Al Qaeda threat, the U.S. 
Government can move from the post-September 11 framework to a more 
nuanced and flexible approach to protecting our security. Given how our 
adversaries have evolved, where the existing approach has succeeded and 
where it has failed, such a shift will be more effective. Winding down 
controversial wartime activities will free resources and attention to 
remake our security assistance, promote security sector reform, the 
rule of law and democracy, and innovate in economic approaches. Those 
are changes that will ensure the United States can marshal its full 
military, economic, and human capital resources for ongoing efforts to 
thwart the tactics and perpetrators of terrorism.
    The large-scale wars in Iraq and Afghanistan conducted under the 
AUMF have carried a heavy price tag for the U.S. military, particularly 
on equipment, personnel, and veterans. The Department of Defense can 
anticipate an extremely large price tag for the withdrawal of military 
forces from Afghanistan, and even more costly will be the replenishing 
of obsolete or defective equipment. Linda J. Bilmes writes that 
``equipment, material, vehicles and other fixed assets have depreciated 
at an estimated six times the peacetime rate, due to heavy utilization, 
poor repair and upkeep in the field, and the harsh conditions in the 
region.'' \5\ In 2008 testimony to the Senate Armed Services Committee, 
General Richard Cody drew attention to the wars' effects on readiness, 
arguing that because of heavy deployments, soldiers and marines lacked 
training for major combat operations using their entire range of 
weapons. In this testimony, Cody stated that the Army did not have 
fully ready combat brigades on standby should another threat or 
conflict occur.\6\ At a time of tight budgets, and national debate over 
how to meet our obligations to the members of our Armed Forces and 
maintain readiness for tomorrow's security threats, an existing AUMF 
which would permit a return to large-scale combat, and encourage the 
flow of resources into military counterterrorism as opposed to other 
policy options, is not in the Nation's interest.
    As a world leader that promotes prosperity, opportunity, and 
liberty, the U.S. should be actively seeking a state of affairs in 
which armed conflict is minimized and cabined, rather than a permanent 
state of war with occasional lulls in the fighting.
    Asserting that we are entrenched in constant struggle and armed 
conflict projects to the world a lack of confidence in our ideals and 
institutions, and it sends the wrong message about the power of our 
opponents. As George Kennan wrote 68 years ago about another atypical 
international conflict, the cold war, the central challenge facing the 
United States was to ``create among the peoples of the world generally 
the impression of a country which knows what it wants, which is coping 
successfully with the problems of its internal life and with the 
responsibilities of a world power, and which has a spiritual vitality 
capable of holding its own among the major ideological currents of the 
time.'' \7\
    Instead, the continuation of the policies enacted within a war 
paradigm after 9/11--ramped-up levels of targeted killings, lack of 
transparency about targets and outcomes, continued questions around 
rendition, detention, surveillance, detention at Guantanamo and 
prosecutions by military commission--is damaging our global leadership 
and credibility on basic human rights and the rule of law.
    Simply put, the war-based policies the U.S. has adopted are not 
popular with our allies or with civilians in the countries where we are 
engaged in a contest of ideals with extremists, and where the outcome 
may depend on people's belief that the U.S. is on their side.\8\
    The unpopularity of these policies is cynically exploited by those 
who wish us ill, and those who benefit from the United States 
diminished influence. Russian President Vladimir Putin, Zimbabwe's 
Robert Mugabe, Syria's Bashar al-Assad, and Iran's Mahmoud Ahmadinejad 
have all pointed to Guantanamo to deflect attention from human rights 
abuses in their own countries. When the U.S. advocates with other 
governments for respect for human rights, its words are instantly 
undermined when a newscast sets images of Guantanamo against the 
American assertions of human rights as universal values.
    War-based policies have specific negative consequences for our 
security. Extremist groups use them to attract recruits; the New York 
Times has reported that ``drones have replaced Guantanamo as the 
recruiting tool of choice for militants.'' \9\
    These policies also undercut our ability to cooperate with crucial 
partners and allies. After a U.S. drone strike in Waziristan killed two 
German citizens in 2011, Germany restricted the type of information it 
shares with the U.S., a sharp reversal from being an eager partner in 
America's fight against terrorism.\10\
    Our insistence on using military commissions rather than federal 
courts to prosecute some terrorism suspects has also had negative 
consequences for the counterterrorism cooperation we depend upon. 
Attorney General Eric Holder said, ``A number of countries have 
indicated that they will not cooperate with the United States in 
certain counterterrorism efforts--for instance, in providing evidence 
or extraditing suspects--if we intend to use that cooperation in 
pursuit of a military commission prosecution.'' \11\
    AUMF-based military detention policies also continue to have 
negative ramifications. For example, the administration has stated that 
Guantanamo, which is based on AUMF authority, ``plagues our bilateral 
and multilateral relationships, creates friction with governments whose 
nationals we detain, provides cover for regimes whose detention 
practices we oppose, and provides our enemies with a symbol used to 
foster anti-U.S. sentiments around the world.'' \12\
    The choices made by Washington within an armed conflict framework 
are setting precedents that may harm our interests when used by other 
nations. John Brennan has said of drone use that the United States is 
``establishing precedents that other nations may follow, and not all of 
them will be nations that share our interests or the premium we put on 
protecting human life, including innocent civilians.'' \13\
                  why not live with the existing aumf?
    Many observers have suggested that, either because the existing 
AUMF has allowed for counterterrorism policies under which no massive 
attacks on the U.S. have been repeated, or because a polarized Congress 
in an election year is ill-suited to deliberate a new framework, the 
wisest course for the U.S. is to leave matters as they are. We 
disagree.
    First, while concern over the AUMF's validity after withdrawal from 
the Afghanistan theater is real, the President retains sufficient 
authority to counter future threats from terrorism without the AUMF, as 
we lay out below.
    With respect to detention, the President and Congress should not 
allow the issue of Guantanamo to carry forward what has now become the 
longest war in American history. There is a reasonable path forward to 
dealing with Guantanamo, and legal experts agree that detainees must be 
prosecuted or transferred at the end of active hostilities.
    Second, the legal framework created by the AUMF is ill-fitting for 
the current threats we face and does not satisfy human rights 
advocates, the military, or counterterrorism professionals. Both 
liberals and conservatives have expressed concerns about the growing 
disconnect between the authorities and our actions. The further we get 
from 9/11, there is every reason to expect that the fit will grow more 
awkward, pushback from our partners sharper, and possibilities for 
abuse greater.
    Finally, standing war authorities are not needed for effective 
counterterrorism policy, and in some instances prove distorting and 
counterproductive to keeping Americans safe.
         the u.s. can effectively counter terrorism without it
    Counterterrorism and military leaders agree that a successful U.S. 
policy will rely far less on the use of force, especially large-scale 
military engagements and occupations, than was the case in the years 
immediately following 9/11. From former Afghanistan commanders saying 
``we can't bomb our way to victory'' to recent media coverage of the 
difficulty the CIA is having transitioning away from wartime 
activities,\14\ evidence is mounting that Congress and the 
administration have much work to do to strengthen a comprehensive 
approach which leverages economic, diplomatic and human resources as 
well as intelligence and military assets. Continued emphasis on war 
authorities and the activities that flow from them has resulted in 
underdevelopment and underresourcing of some elements of a ``whole-of-
government'' approach. The best counterterrorism policy for the post-
post-9/11 era will put more resources into these core competencies, 
resources gained by getting away from the financial and human costs of 
the war paradigm.
    Conditional Security Assistance: The best way to keep America safe 
is to help partners ensure that terrorist threats are defeated in the 
countries where they start. This entails strong, effective support for 
military, intelligence, law enforcement and the rule of law. But too 
often over the last decade, resources for civilian security assistance 
have been stretched too thin, while counterterrorism training in 
Africa, the Middle East and Southeast Asia was carried out by 
contractors while the best U.S. counterterrorism troops were deployed 
in Iraq and Afghanistan.
    Sustainable Democratic Institutions and the Rule of Law: Funding to 
support independent strong courts, police, and local governments in 
countries facing the threat of terrorism has declined more sharply than 
military spending, while important parts of military assistance, such 
as vetting counterterrorism units for human rights abuse under the 
Leahy Law, remain grossly underfunded. The Leahy Law can also be used 
more robustly to resource and incentivize military justice in partner 
countries.
    Counter Threat Finance as a Tool to Marginalize Extremists: Perhaps 
Washington's greatest counterterrorism innovation in the post 9/11 
years, this approach is most effective when enforced multilaterally 
under U.S. leadership--which requires international support for U.S. 
approaches.
    Maximize the Role of the Criminal Justice System: More than 500 
individuals have been convicted of international terrorism charges in 
federal court since 9/11.\15\
    Improve Effectiveness, Focus of Intelligence Community: Observers 
continue to report that the intelligence community's transition off a 
wartime footing is struggling and needs more emphasis from within and 
oversight from without.
                     challenges and recommendations
    In both his National Defense University (NDU) speech and the 2014 
State of the Union Address, President Obama committed to moving the 
United States away from a permanent war footing, arguing that ``We must 
define the nature and scope of this struggle, or else it will define 
us.'' \16\ His administration has since taken concrete steps toward 
transparency, oversight, and reform in specific areas including the 
targeted killing program and domestic surveillance efforts, and 
reinvigorated efforts to reduce the detainee population at Guantanamo 
and close the detention facility permanently. Ending reliance on the 
AUMF and the policies that go with it is crucial to shifting United 
States counterterrorism policy off of a permanent war footing.
    To that end, Human Rights First urges Congress and the 
administration to work together to develop shared understandings about 
the shifting nature of the threat posed by terrorism; the current uses 
of wartime authorities and what they have accomplished; and the 
framework of an effective, whole-of-government counterterrorism policy 
that keeps Americans safe while reassuring our citizens and the world 
that we remain committed to human rights, liberty, and personal 
freedoms for ourselves and others.
Recognize and clarify the shifting nature of threat
    Al Qaeda is no longer the same organization in terms of capability, 
structure, capacity, or ambition that launched the September 11 attacks 
against the United States. Policymakers no longer frame the 
counterterrorism challenge as hunting down a specific group of 
individuals responsible for specific attacks or protracted troop 
deployments in the Middle East.
    The Al Qaeda core leadership that threatened the United States in 
the aftermath of the September 11 attacks was the highly centralized 
critical node of a financial, ideological, and human capital terrorist 
network. This node has since been vastly reduced in terms of capability 
and influence. As then-Secretary of Defense Leon Panetta said in 2012, 
``over the last few years, Al Qaeda's leadership ranks have been 
decimated. This includes the loss of four of Al Qaeda's five top 
leaders in the last 2\1/2\ years alone--Osama bin Laden, Sheikh Saeed 
al-Masri, Atiyah Abd al-Rahman, and Abu Yahya al-Libi.'' \17\
    What has emerged in its wake is a complex web of groups, sharing at 
minimum an attraction to terrorist violence and a desire to trade on 
the Al Qaeda ``brand.'' Some, such as al-Nusra, have explicitly sworn 
allegiance to Al Qaeda's core leadership and take direction from bin 
Laden's successor, Ayman al-Zawahiri; \18\ others appear to receive 
some training or financial support but limit their aims to internal or 
regional struggles, unlike Al Qaeda (Boko Haram appears to fit in this 
category); \19\ and some have little or no operational connection or, 
as is the case of the Islamic State of Iraq and Greater Syria (ISIS, 
previously known as Al Qaeda in Iraq), have been thrown out of the Al 
Qaeda family.'' \20\
    The AUMF categories of 9/11 perpetrators, supporters, or associated 
groups thus lack relevance to the current challenge. Specific groups, 
be they legitimate ``franchises'' of Al Qaeda core or merely imitators, 
must be assessed individually on the basis of their capabilities and 
ambitions, which vary significantly.
    It is misleading to characterize the rise of these other groups--
connected in varying degrees or not at all to core Al Qaeda--as more or 
even equally dangerous to the United States. President Obama remarked 
that ``in the years to come, not every collection of thugs that labels 
themselves Al Qaeda will pose a credible threat to the United States.'' 
\21\
    Many pose an intense threat to their home governments and regional 
stability--in some cases American allies. Many, such as Boko Haram, 
ISIS, and al-Nusra have carried out large-scale attacks on civilians. 
Their rise must not be a matter of indifference to Americans.
    But that does not mean that a war footing--in legal terms, an armed 
conflict authorized by an AUMF--is the right policy response to most or 
all of them. It is simple logic that as Al Qaeda has changed, so must 
the U.S. response. By failing to recognize that many groups seeking to 
use the Al Qaeda label or connection for their own prestige do not 
constitute an imminent threat to the United States, we provide an 
overblown excuse to use far-reaching wartime policies that breed 
resentment in the international community and put our most fundamental 
rights and principles in jeopardy.
Enable intelligent debate by clarifying for Americans where our Nation 
        is using AUMF authorities and with what results
    Discussion of where armed conflict authorities are or are not 
needed is greatly hampered by the fact that the American people and 
many Members of Congress do not know basic facts about what operations 
are currently conducted under the AUMF, what other authorities are used 
to underpin uses of force, and what the results are. To gauge the costs 
and benefits of war authorities versus other authorities, enact new 
laws or repeal existing provisions, and conduct proper oversight, 
Congress must have this information. As noted above, transparency with 
the American people and the civilians around the world we aim to 
protect is essential to the long-term credibility of American 
counterterrorism policy and American leadership. Some Members of 
Congress have made requests, offered amendments, filibustered bills to 
acquire pieces of this information. Such a piecemeal approach will not 
achieve the goal of making America safer and counterterrorism 
activities more sustainable: Coherence and a commitment to an 
articulated standard of transparency will make the drone strategy more 
defensible and effective.
    To that end, Human Rights First recommends that Congress connect 
its action on the AUMF, and its funding for the use of lethal force 
outside active zones of hostilities, to the release of the following 
information:

          (1) A list of organizations or groups the United States 
        considers itself to be at war with;
          (2) A list of organizations or groups the United States 
        considers to be ``associated forces'';
          (3) The specific laws and legal interpretations each U.S. 
        Government agency involved relies upon in its use of lethal 
        force, within and outside of armed conflicts, including: (a) An 
        unclassified version of the Presidential Policy Guidance 
        referenced by President Obama in his May 23, 2013, speech at 
        the National Defense University \22\ and (b) all relevant 
        Department of Justice legal memos;
          (4) Where, when, and under what circumstances the U.S. 
        believes it is using lethal targeting within an armed conflict, 
        and where, when, and under what circumstances it believes it is 
        acting outside an armed conflict;
          (5) The countries where the U.S. has conducted targeted 
        killings since September 11, 2001, and identities of all 
        individuals killed, both in the past and going forward; how 
        each U.S. agency involved determines who has been killed after 
        a strike; how each agency classifies those killed as 
        ``civilian,'' ``militant'' or ``combatant''; and summaries of 
        all post-strike investigations, including who 
        was killed, who was killed erroneously or constitutes 
        ``collateral damage'' and whether and when apologies and/or 
        compensation were provided for mistaken or collateral killings;
          (6) The criteria each U.S. agency involved (read: Department 
        of Defense and CIA) uses to decide whom it may target with 
        lethal force--that is, who constitutes a targetable member of 
        Al Qaeda, the Taliban, or an ``associated force;'' what 
        signatures are used to justify ``signature strikes''; and what 
        exactly constitutes an ``imminent threat'' that justifies 
        lethal force;
          (7) An explanation of how each relevant U.S. agency decides 
        that capture of a target is not feasible and therefore warrants 
        the use of lethal force, and explanations going forward why 
        capture was not feasible in each instance.
Elucidate a framework for effective post-armed conflict authorities
    U.S. and international law provide a comprehensive framework within 
which the United States can apprehend, detain, interrogate, prosecute, 
and--if necessary--use lethal force against, terrorism suspects without 
relying on AUMF-based law of armed conflict authorities. That framework 
also pertains to intelligence-gathering, an issue which is not 
discussed here, although Washington will face the same pressures to 
align its espionage and surveillance activities more closely with its 
partners' understanding of international and domestic law, in order to 
retain support for its counterterrorism agenda abroad as well as at 
home.
Transfer, arrest, and pre-trial detention
    In many cases, terrorism suspects will be arrested and prosecuted 
by foreign law enforcement and security officials, acting with the 
assistance of the United States Government and broader international 
community. Accordingly, building partner nation capacity to deal with 
threats must be the focus of a comprehensive counterterrorism strategy 
moving forward.
    However, in some cases where the terrorism suspect is of particular 
interest to the United States, U.S. officials must act to effectuate 
the arrest, despite the fact that the suspect is located abroad and 
subject to foreign criminal jurisdiction.
    In these cases, U.S. officials have authority to arrest terrorism 
suspects located abroad far before any terrorist attack has been 
committed or even planned. Several federal offenses apply 
extraterritorially, providing a basis for arresting individuals who 
have even limited connections to terrorist groups through providing 
training, money, logistical support, or other forms of assistance, 
irrespective of whether any terrorist attack has occurred.\23\
    Terrorism suspects are often transferred to U.S. custody pursuant 
to extradition agreements or other formal procedures agreed upon by the 
U.S. and the country in which the suspect is located. In circumstances 
that require it, the military may effectuate capture, or assist U.S. 
law enforcement assets in apprehending and detaining terrorism suspects 
abroad.
Interrogation
    While a terrorism suspect is in custody, nothing prevents 
government officials from interrogating that individual, and using any 
information secured for intelligence purposes. Some have warned that 
the Miranda requirement forces the government to tell the suspect that 
he may remain silent and is entitled to a lawyer, thereby compromising 
an ability to effectively interrogate the suspect. This is incorrect 
for a number of reasons.
    First, in cases where there may be an ongoing terrorist threat, the 
public safety exception to Miranda would apply and government officials 
could interrogate the terrorism suspect and use the resulting 
information for any purpose, including prosecution, so long as the 
subject's statements are voluntary. Second, even where government 
agents elect to read a suspect the Miranda warnings, in the majority of 
cases the suspect waives his rights or otherwise cooperates to provide 
information to the agents.\24\ Finally, Miranda violations occur, if at 
all, not at the point of interrogation, but only when and if the 
government attempts to introduce the ``un-Mirandized'' statements at 
the trial of the suspect. Therefore, government officials always retain 
the option of not reading a suspect the Miranda warnings and proceeding 
with an interrogation. The consequence of doing so is that government 
could use the information gained in such an interrogation for 
intelligence purposes, but not in a prosecution of the individual in 
question. The individual could still be prosecuted on the basis of 
other evidence, and even on the basis of subsequent interrogation by a 
``clean team'' following Miranda warnings.\25\ Intelligence gained 
through lawful interrogations and law enforcement interviews includes: 
Al Qaeda communication protocols, Al Qaeda recruiting techniques, 
information on Al Qaeda's finances, terrorist tradecraft used to avoid 
detection, information on Al Qaeda weapons programs and training, 
locations of Al Qaeda safe houses and training camps, information on Al 
Qaeda security protocols, identities of operatives involved in past and 
future planned attacks, and information about plots to attack U.S. 
targets.\26\
Prosecution
    The United States retains substantial flexibility to prosecute 
terrorism suspects irrespective of the circumstances surrounding their 
initial capture and interrogation. More than 500 individuals have been 
prosecuted and convicted in federal courts for international terrorism-
related offenses. In dozens of these cases, the defendants were 
initially apprehended abroad. A number of these cases involved 
substantial periods of pre-trial detention and interrogation, and in 
many cases cooperation has extended throughout the prosecution phase 
and into the post-conviction phase. One such case is that of Lackawanna 
Six defendant Yahya Goba, who pled guilty to providing material support 
to Al Qaeda and was sentenced to 120 months in prison, but as part of 
his plea agreement, continued to provide information to aid the 
government investigation, even testifying as a government witness in 
several other cases.\27\
    As noted above, military commissions have been a failure in every 
respect; they lack global credibility and have prolonged the wait for 
justice for victims. Recently, 23 senior retired military leaders 
called the military commissions ``a poor substitute for justice.'' \28\ 
To the degree that an end to wartime authorities require a move away 
from military commissions, this will not result in the loss of an 
effective tool for justice but rather will prompt reliance on the more 
credible and effective tools of our Federal court system.
Post-conviction detention
    Likewise, 13 years' experience has not indicated a necessary role 
for wartime authority for post-conviction detention. Hundreds of 
individuals convicted of terrorism-related offenses after 9/11 remain 
incarcerated in high-security U.S. prisons. According to Attorney 
General Holder, ``Not one has ever escaped custody. No judicial 
district has suffered a retaliatory attack of any kind.'' \29\ After 
serving their sentences, noncitizen U.S. terrorism suspects are subject 
to immediate post-conviction deportation and mandatory detention 
pending the conclusion of removal proceedings.
Lethal targeting
    The President has said that the number of instances in which lethal 
targeting is the chosen tool of counterterrorism should decline. 
Experts and military leaders have echoed this, for both moral and 
practical reasons.\30\ In narrow circumstances in which a terrorism 
suspect poses an imminent threat to the lives of Americans that cannot 
be dealt with through detention or other means, the President retains 
the authority under domestic and international law to use force against 
such threats. Christine Wormuth, Deputy Under Secretary of Defense, 
told Congress, ``The President's authority as Commander in Chief 
provides sufficient flexibility to respond to emerging terrorism 
threats posed by organizations not covered by the 2001 AUMF.'' \31\ As 
a matter of domestic law, Article II of the Constitution provides clear 
authority for such operations, and Congress can and should play a role 
in further regulating and ensuring transparency, oversight, and 
accountability over such uses of force.
    As a matter of international law, uses of force in self-defense 
against groups that committed an armed attack against the United States 
are permitted under Article 51 of the United Nations Charter.\32\ 
Further, international human rights law permits using force when it is 
required to save lives and there is no other means to deal with a 
threat.\33\
    The administration has made significant progress toward compliance 
with applicable international law in articulating through Presidential 
Policy Guidance (PPG) criteria governing the use of lethal force 
outside of active zones of hostilities. However, important questions 
remain. The release, with appropriate redactions, of the underlying 
Presidential Policy Guidance (PPG), Office of Legal Counsel (OLC) 
memoranda, or other information pertaining to such lethal strikes is 
essential for Congress to make wise decisions about how the 
administration is defining key terms such as ``imminence'' and 
``feasibility of capture,'' whether those definitions are consistent 
with Article II and international law--and whether the administration 
is fully complying with the criteria that it has laid out.\34\
Reject proposals to expand the AUMF's mandate
    The post-armed conflict framework outlined above is legally 
sustainable and provides operators with substantial discretion to 
investigate, detain, interrogate, prosecute, and--where necessary--use 
lethal force against terrorism suspects, irrespective of whether such 
individuals are connected to Al Qaeda or the 9/11 attacks. By contrast, 
under the current AUMF, the government is only permitted to use law of 
war detention to detain individuals who are determined to be part of or 
substantially supporting Al Qaeda, the Taliban, or an associated force 
in hostilities against the United States. Where the individual does not 
have a strong connection to core Al Qaeda, hostilities in the 
Afghanistan war, or the 9/11 attacks, this is a difficult legal case to 
make.
    The weakness of the AUMF once applied beyond individuals with clear 
links to core Al Qaeda or 9/11 has called into question law of war 
detention and military commission trials at Guantanamo, as well as 
lethal targeting operations outside of the Afghan war theater against 
individuals and groups that have no connection to the 9/11 attacks.
    Noting these limitations, some have argued that Congress should 
pass a new AUMF to provide even broader wartime authorities to use the 
military to detain, prosecute, and target terrorism suspects. For 
example, one proposal would confer onto the executive branch authority 
to add groups to a list that would be covered by a new AUMF, even if 
such groups have not attacked the United States, and are not connected 
to core Al Qaeda, 9/11, or the conflict in Afghanistan.\35\
    Congress should reject the idea of a new or expanded AUMF for three 
reasons:
    We have little or no evidence that preemptive U.S. military action 
against groups that do not pose us an imminent threat is either desired 
by the American people or is an operationally effective way of 
diminishing the long-term threat such groups do pose. Analysts have 
referred to groups such as Boko Haram in Nigeria, ISIS in Iraq, al-
Nusra in Syria as ``emerging threats.'' There is no question that these 
groups are violent, anti-Western, and enormous threats to human rights 
and stability where they operate. But where such groups have not shown 
explicit capability or intention to target the security of the United 
States, the military activities permitted under an AUMF are the wrong 
response.
    An expanded AUMF directed at emerging terrorist threats would pose 
serious legal problems without conferring clear operational benefits. 
An AUMF encompassing groups that have not attacked the United States, 
or do not pose an imminent threat of attack, would not be consistent 
with international law. So-called ``preemptive'' uses of force against 
groups and individuals are not permitted under self-defense criteria.
    Similarly, authorizing AUMF-based wartime authorities in situations 
involving terrorist groups beyond active zones of hostilities would not 
be consistent with the laws of war, which can only be applied in 
``armed conflict''--situations involving hostilities of sufficient 
intensity with organized armed groups. Although some groups, such as 
Boko Haram or Al Qaeda in the Islamic Maghreb, pose a serious threat in 
areas in which they operate, the United States is not engaged in an 
armed conflict with these groups under the laws of war and thus an AUMF 
directed at these groups would not be appropriate.\36\
    An AUMF directed at emerging threats also poses serious 
constitutional problems. Some have noted that an AUMF conferring 
authority to the executive branch to use force generally against 
emerging terrorist threats--without clear and specific limits--would 
run afoul of separation of powers principles, which require Congress to 
clearly define the scope of the authority conferred.\37\ Similarly, 
providing to the executive branch authority to bring new groups within 
an AUMF could constitute a violation of the nondelegation doctrine 
because Congress would be unconstitutionally delegating authority that 
is committed by the Constitution to the legislative branch.
    Finally, the value of an AUMF must be weighed against the risk of 
its use as a future blank check. The drafters of the 2001 AUMF have 
stressed that it is being used in ways they did not intend.\38\ Nothing 
would prevent this or a future administration from using even a 
carefully crafted new AUMF to justify another large-scale invasion or 
costly war without further congressional debate or authorization.
           situations in which a new aumf may be appropriate
    As noted, it is highly problematic as a matter of law and policy to 
expand the existing AUMF or pass a new one to target emerging terrorist 
threats that have not attacked the United States and do not pose an 
imminent threat of attack. Further, the United States has the authority 
under domestic and international law to use force to deal with imminent 
threats absent an AUMF. For these reasons, the administration has not 
requested additional AUMF authority and the President has indicated 
that he will not sign legislation that expands the AUMF's mandate.\39\
    However, there are circumstances in which an AUMF would be an 
appropriate and lawful response to a threat. The clearest example would 
be if the United States was attacked on a large-scale and Congress and 
the President intended to engage in a prolonged and sustained military 
campaign, which rose to the level of armed conflict, against one or 
more responsible armed groups. History also provides examples of 
Presidents choosing to act under imminent threat, and then come to 
Congress for authorization for an extended engagement. Congress has 
proven itself able to move quickly and supportively in such instances, 
and there is no reason to believe that has changed.
    In addition, in some situations, the United States may choose to 
engage on a prolonged basis in an ongoing armed conflict even if the 
United States has not yet been attacked. For example, if the United 
States were to decide to engage in military attacks on a sustained 
basis in the ongoing armed conflict in Syria, it would be appropriate 
for the executive branch to secure an AUMF from Congress before doing 
so. Similarly, most experts agree that there is an ongoing armed 
conflict in Yemen, and though Human Rights First does not take a 
position on whether that conflict is wise, the Congress may choose to 
authorize the United States to engage alongside the Yemeni Government 
in that armed conflict.
                               conclusion
    The work of protecting the United States from terrorist violence is 
far from done. Yet it is increasingly clear that, both for effective 
counterterrorism and for preserving U.S. stature as a leader on human 
rights and the rule of law, the 2001 AUMF and the wartime attitudes and 
policies it has facilitated are outdated. The domestic and 
international laws that built a strong wall between wartime and 
peacetime have a vital policy purpose; absent them, powers that were 
once extraordinary become the norm, and policies that are the hallmarks 
of dictatorships become associated with America. Congress and the 
administration have the opportunity to move beyond piecemeal attempts 
at reform to set a clear legal and policy framework that combats 
terrorism effectively and makes clear to our friends and enemies that 
we will not be goaded into eroding our national strength through a 
permanent state of war. Human Rights First supports this goal and looks 
forward to engaging in the hard work of elaborating specific legal and 
policy understandings on these vital questions.

----------------
End Notes

    \1\ Authorization for Use of Military Force Sec. 2(a), 115 Stat. 
224, 224 (codified at 50 U.S.C. Sec. 1541 note) (2001).
    \2\ Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004).
    \3\ Karen DeYoung, ``Afghan War's Approaching End Throws Legal 
Status of Guantanamo Detainees into Doubt,'' Wash. Post, Oct. 18, 2013.
    \4\ Hon. Jeh Charles Johnson, General Counsel, U.S. Dep't of Def., 
``The Conflict Against Al Qaeda and its Affiliates: How Will It End?,'' 
Speech Before the Oxford Union (Nov. 30, 2012).
    \5\ Linda J. Bilmes, ``The Financial Legacy of Iraq and 
Afghanistan: How Wartime Spending Decisions Will Constrain Future 
National Security Budgets'' (Cambridge, MA: Harvard Kennedy School, 
2013), p. 3.
    \6\ Ann Scott Tyson, ``Heavy Troop Deployments Are Called Major 
Risk,'' The Washington Post (Washington, DC, United States), April 2, 
2008.
    \7\ George F. Kennan (``X''), ``The Sources of Soviet Conduct,'' 
Foreign Aff., July 1947.
    \8\ Pew has documented a marked decrease in global approval of the 
administration's international policy including drone strikes. See, 
e.g., ``Global Opinion of Obama Slips, International Policies Faulted: 
Drone Strikes Widely Opposed,'' Pew Res. Global Attitudes Project (June 
13, 2012).
    \9\ Jo Becker & Scott Shane, ``Secret `Kill List' Proves a Test of 
Obama's Principles and Will,'' N.Y. Times, May 29, 2012, at A1.
    \10\ Holger Stark, ``Drone Killing Debate: Germany Limits 
Information Exchange with US Intelligence,'' Spiegel Online Int'l (May 
17, 2011).
    \11\ Eric Holder, Att'y Gen., Address at Northwestern University 
Law School (March 5, 2012).
    \12\ White House Plan for Closing the Guantanamo Bay Detention 
Facility (July 24, 2013).
    \13\ John O. Brennan, Assistant to the President for Homeland Sec. 
and Counterterrorism, Remarks at Woodrow Wilson Int'l Ctr. for 
Scholars: The Ethics and Efficacy of the President's Counterterrorism 
Strategy (Apr. 30, 2012).
    \14\ Kimberly Dozier, ``Exclusive: CIA Falls Back in Afghanistan,'' 
The Daily Beast (May 4, 2014).
    \15\ Adam Serwer, ``Courts Can Win Terror Convictions After All,'' 
MSNBC (March 26, 2014).
    \16\ President Barack Obama, Remarks by the President at the Nat'l 
Def. Univ. (May 23, 2013) [hereinafter NDU Speech].
    \17\ Kate Brannen, ``Leon Panetta: Al Qaeda's Leadership 
`Decimated' '', Politico (Nov. 21, 2012).
    \18\ ``Al-Nusra Commits to Al Qaeda, Deny Iraq Branch 'Merger' '', 
Naharnet (April 10, 2013).
    \19\ Michael Stothard, William Wallis & Javier Blas, ``West African 
Nations Pledge United Front against Boko Haram,'' Fin. Times, (May 19, 
2014).
    \20\ Abu Bakr Al-Baghdadi, head of ISIS, scoffed that ``I have to 
choose between the rule of God and the rule of Al Zawahiri, and I 
choose the rule of God. See, e.g. Aryn Baker, ``Why Al-Qaeda Kicked out 
its Deadly Syria Franchise,'' Time (Feb. 3, 2014).
    \21\ NDU Speech, supra note 16.
    \22\ NDU Speech, supra note 16.
    \23\ See generally Charles Doyle, Cong. Research Serv., 94-166, 
Extraterritorial Application of American Criminal Law (2012).
    \24\ Richard B. Zabel & James J. Benjamin, Jr., in Pursuit of 
Justice: 2009 Update and Recent Developments 30, Human Rights First 
(2009).
    \25\ See, e.g., Benjamin Weiser, ``Hearing on Terror Suspect 
Explores Miranda Warning,'' N.Y. Times, Dec. 13, 2011, at A31.
    \26\ See generally David S. Kris, ``Law Enforcement as a 
Counterterrorism Tool,'' 5 J. Nat'L Security L. & Pol'y 1 (2011).
    \27\ Richard B. Zabel & James J. Benjamin, Jr., In Pursuit of 
Justice: Prosecuting Terrorism Cases in Federal Courts 118-19, Human 
Rights First (2008).
    \28\ Letter from retired U.S. generals and admirals to Senators 
Richard Durbin and Ted Cruz, Chairman and Ranking Member, Senate 
Judiciary Committee, Re: Subcommittee on the Constitution, Civil Rights 
and Human Rights Hearing on Closing Guantanamo: The National Security, 
Fiscal, and Human Rights Implications (July 24, 2013).
    \29\ Eric Holder, Att'y Gen., Address at the Univ. of Cal. Berkeley 
School of Law Commencement (May 11, 2013).
    \30\ See generally Joshua Foust, Oversight for Effectiveness: A 
Counterterrorism Perspective on the Targeted Killings ``White Paper,'' 
Nat'l Sec. Network (2013).
    \31\ Advance Questions for Christine E. Wormuth, Nominee for the 
Position of Under Secretary of Defense for Policy, S. Armed Serv. Comm. 
(Feb. 25, 2014).
    \32\ U.N. Charter art. 51.
    \33\ Report of the Special Rapporteur on extrajudicial, summary, or 
arbitrary executions, Philip Alston, U.N. Doc. A/HRC/14/24/Add.6 (May 
28, 2010).
    \34\ In active zones of hostilities where the United States may be 
using force to aid a foreign government in an armed conflict against a 
local group with terrorism-related ties, broader law-of-war based 
lethal targeting authorities would continue to apply.
    \35\ Robert Chesney, Jack Goldsmith, Matthew C. Waxman, & Benjamin 
Wittes, A Statutory Framework for Next--Generation Terrorist Threats, 
Hoover Inst. (2013).
    \36\ Although an AUMF does not constitute a Declaration of War 
under domestic law and cannot create a state of armed conflict under 
international law, historically AUMFs have nonetheless constituted, in 
effect, war authorizations and signaled an intent to engage in armed 
conflict.
    \37\ Jennifer Daskal & Steve Vladeck, After the AUMF: ``A Response 
to Chesney, Goldsmith, Waxman, and Wittes,'' Lawfare (March 17, 2013).
    \38\ See Andrew Rosenthal, Op-Ed., ``The Forever War,'' N.Y. Times 
Taking Note (May 17, 2013); Jack Goldsmith, ``Congress Must Figure Out 
What Our Government Is Doing In the Name of the AUMF,'' Lawfare (May 
17, 2013).
    \39\ NDU Speech, supra note 16.
                                 ______
                                 

             Responses of Stephen W. Preston to Questions 
                    Submitted by Senator Bob Corker

    Question. Imminent Threats.--In answering the below question, 
please in every instance clearly distinguish between which portions of 
your answers relate to: legal authorities versus policy guidance; U.S. 
versus international law; and the authorities granted by the 9/11 AUMF 
versus those granted by Article II of the Constitution.
    In your testimony, you discussed the authority of the President to 
use lethal force against ``imminent'' threats to the United States.

   Please define ``imminent'' and explain in detail both the 
        legal authorities on which that definition is based and how the 
        administration arrived at that definition. Does a group that 
        has previously conducted an attack against Americans constitute 
        an imminent threat?

    Answer. Article II of the Constitution provides the President with 
the authority to take military action for the purpose of protecting 
important national interests, and stopping an imminent threat would be 
a clear and compelling example of an important national interest. 
Clearly, an individual or group that is planning a specific attack to 
take place in the near term and that has the capability to carry out 
such plans would constitute an imminent threat. Attorney General 
Holder, in his remarks on March 5, 2012, at Northwestern University 
School of Law, explained that the determination of whether an 
individual presents an ``imminent'' threat may incorporate 
consideration of (1) the relevant window of opportunity to act against 
that individual, (2) the possible harm that missing the window would 
cause to civilians, and (3) the likelihood of heading off future 
disastrous attacks against the United States. As the Attorney General 
said:

          As we learned on 9/11, al-Qaeda has demonstrated the ability 
        to strike with little or no notice--and to cause devastating 
        casualties. Its leaders are continually planning attacks 
        against the United States, and they do not behave like a 
        traditional military--wearing uniforms, carrying arms openly, 
        or massing forces in preparation for an attack. Given these 
        facts, the Constitution does not require the President to delay 
        action until some theoretical end-stage of planning--when the 
        precise time, place, and manner of an attack become clear. Such 
        a requirement would create an unacceptably high risk that our 
        efforts would fail, and that Americans would be killed.

    Indeed, in comments similar to the Attorney General's, John 
Brennan, then-Assistant to the President for Homeland Security and 
Counterterrorism, noted in his speech at Harvard Law School in 
September 2011 that we are finding increasing recognition in the 
international community that a more flexible understanding of 
``imminence'' may be appropriate when dealing with terrorist groups and 
that what constitutes an ``imminent'' attack should be broadened in 
light of the modern-day capabilities, techniques, and technological 
innovations of terrorist organizations. Timely, credible, and accurate 
intelligence and information are critical in determining whether an 
individual or group presents a ``continuing, imminent threat to U.S. 
persons.''

    Question. Lethal Action Against al-Qaeda.--In answering the below 
question, please in every instance clearly distinguish between which 
portions of your answers relate to: legal authorities versus policy 
guidance; U.S. versus international law; and the authorities granted by 
the 9/11 AUMF versus those granted by Article II of the Constitution.

   Does the 9/11 AUMF authorize the President to take lethal 
        action against 
        al-Qaeda or its members or its associated forces regardless of 
        whether they pose an imminent threat? Does the United States 
        currently undertake lethal action outside of Afghanistan 
        against al-Qaeda or its members or its associated forces where 
        they do not pose an imminent threat?

    Answer. The AUMF authorizes the use of military force against al-
Qaeda, the Taliban, and associated forces. This authority is not 
limited to imminent threats.
    Pursuant to the President's policy guidance, the Department of 
Defense currently undertakes lethal counterterrorism direct action 
outside the United States and areas of active hostilities only against 
targets that pose a continuing, imminent threat to U.S. persons.

    Question. Lethal Action Against Nonimminent Threats.--In answering 
the below question, please in every instance clearly distinguish 
between which portions of your answers relate to: legal authorities 
versus policy guidance; U.S. versus international law; and the 
authorities granted by the 9/11 AUMF versus those granted by Article II 
of the Constitution.

   Does the 9/11 AUMF authorize the President to take lethal 
        action against foreign individuals or members of foreign 
        terrorist organizations (other than 
        al-Qaeda or its members or its associated forces) that do not 
        pose an imminent threat?

    Answer. The AUMF authorizes the use of military force against al-
Qaeda, the Taliban, and associated forces. This authority does not 
depend on whether there is an imminent threat.

    Question. Article II Lethal Action Authorities.--In answering the 
below question, please in every instance clearly distinguish between 
which portions of your answers relate to: legal authorities versus 
policy guidance; U.S. versus international law; and the authorities 
granted by the 9/11 AUMF versus those granted by Article II of the 
Constitution.

   Does Article II authorize the President to take lethal 
        action against foreign individuals or members of foreign 
        terrorist organizations that do not pose an imminent threat?

    Answer. Article II of the Constitution provides the President with 
the authority to take military action for the purpose of protecting 
important national interests. Any use of military force by the United 
States would be governed by the law of armed conflict, which includes 
limitations on the use of military force to actions that are necessary 
and proportionate and that are consistent with the principles of 
distinction and proportionality.
    Pursuant to the President's policy guidance, the Department of 
Defense currently undertakes lethal counterterrorism direct action 
outside the United States and areas of active hostilities only against 
targets that pose a continuing, imminent threat to U.S. persons.

    Question. Lethal Action Taken.--Has the administration taken lethal 
action against members of a foreign terrorist organization that was not 
covered by the 9/11 AUMF?

    Answer. Yes. For example, members of the designated foreign 
terrorist organization Kata'ib Hezbollah were reportedly among those 
killed in the course of U.S. or combined U.S.-Iraq military operations 
in Iraq during Operation IRAQI FREEDOM.

    Question. Extent of AUMF Authorities.--In answering the below 
question, please in every instance clearly distinguish between which 
portions of your answers relate to: legal authorities versus policy 
guidance; U.S. versus international law; and the authorities granted by 
the 9/11 AUMF versus those granted by Article II of the Constitution.

   Does the AUMF authorize the President to use force against 
        groups or individuals that pose a threat, imminent or 
        otherwise, to anyone or anything other than the United States 
        and U.S. persons? What about U.S. coalition partners whether 
        located inside or outside Afghanistan? What about U.S. allies? 
        What about U.S. national security or other U.S. national 
        interests?

    Answer. The 2001 AUMF authorizes the President to use military 
force against al-Qaeda, the Taliban, and associated forces. As those 
groups also present ongoing threats to a number of U.S. coalition 
partners and allies, U.S. counterterrorism operations pursuant to the 
2001 AUMF serve mutual interests of the United States and those 
partners and allies.

    Question. Article II Versus AUMF.--In answering the below question, 
please in every instance clearly distinguish between which portions of 
your answers relate to: legal authorities versus policy guidance; U.S. 
versus international law; and the authorities granted by the 9/11 AUMF 
versus those granted by Article II of the Constitution.

   If the AUMF is repealed, how does the scope of Article II 
        authority differ, if at all, from current U.S. policy governing 
        the use of force outside of Afghanistan?

    Answer. The AUMF authorizes the use of military force against al-
Qaeda, the Taliban, and associated forces. This authority does not 
depend on whether any such group poses a threat of imminent attack. 
Article II of the Constitution provides the President with the 
authority to take military action for the purpose of protecting 
important national interests. Pursuant to the President's policy 
guidance, the Department of Defense currently undertakes lethal 
counterterrorism direct action outside the United States and areas of 
active hostilities only against targets that pose a continuing, 
imminent threat to U.S. persons regardless of the legal authority for 
that action.

    Question. Presidential Guidance.--Will you provide the Senate 
Foreign Relations Committee with the text of any current or prior 
Presidential policy guidance related to the 9/11 AUMF?

    Answer. The administration is committed to keeping the appropriate 
congressional committees fully informed of matters within their 
jurisdiction, and consistent with this commitment, senior 
administration officials have briefed the Congress on the written 
policy standards and procedures approved by the President in May 2013, 
concerning operations to capture or employ lethal force against 
terrorist targets outside the United States and outside areas of active 
hostilities. Beyond that, access to Presidential policy guidance 
related to the 9/11 AUMF is not controlled by the Department of 
Defense. I have therefore referred your request for the text of any 
such Presidential guidance to the White House.

    Question. Exceptions to Policy.--Does the Presidential policy 
guidance related to the 9/11 AUMF provide for exceptions to its 
baseline policy requirements, and, if so, have such exceptions been 
employed and in what circumstances? Has the administration ever failed 
to apply, or has it ever deviated from, any applicable Presidential 
policy guidance related to the 9/11 AUMF in the use of lethal force?

    Answer. As noted in the section captioned ``Reservation of 
Authority'' of the May 2013 fact sheet on U.S. Policy Standards and 
Procedures for the Use of Force in Counterterrorism Operations Outside 
the United States and Areas of Active Hostilities, those standards and 
procedures do not limit the President's authority to take action in 
extraordinary circumstances when doing so is both lawful and necessary 
to protect the United States or its allies. To date, the President has 
not authorized any Department of Defense counterterrorism operations 
under this ``extraordinary circumstances'' exception to the policy 
standards.

    Question. Feasibility of Capture.--The administration has limited 
lethal action to those individuals ``whose capture is not feasible.'' 
How is the feasibility of capture determined? What factors are 
considered and how are they balanced? Is the feasibility determination 
made with or without consideration of factors relating to the use of 
lethal force? In other words, is the feasibility, or comparative 
advantage, of the use of lethal force a factor in determining the 
feasibility of capture in that instance?

    Answer. There is no rigid formula for evaluating feasibility of 
capture; it is a judgment based on the facts and circumstances in the 
particular situation. Military determinations about feasibility of 
capture are largely driven by an assessment of risks, such as the risk 
to the capturing forces, the risk of civilian casualties, and the risk 
that the operation may not be successful.

    Question. New Terrorist Groups.--Have any foreign terrorist groups 
been covered by, or targeted under, the AUMF, at any time since its 
enactment, that were not in existence on 9/11/2001? If so, how many?

    Answer. Yes. For example, as I noted in my prepared remarks, in 
Afghanistan, the U.S. military currently conducts operations pursuant 
to the AUMF against 
al-Qaeda, the Taliban, and other terrorist and insurgent groups that 
are engaged alongside al-Qaeda and the Taliban in hostilities against 
the United States or its coalition partners. In addition, the 
International Security Assistance Force and U.S. rules of engagement 
permit targeting of hostile personnel in Afghanistan based on the 
threat they pose to U.S., coalition, and Afghan forces or to civilians.
    To give another example, as I noted in my prepared remarks, in 
Yemen, the U.S. military has conducted direct action under the 2001 
AUMF targeting members of Al Qaeda in the Arabian Peninsula (AQAP), 
which is an organized, armed group that is part of, or at least an 
associated force of, al-Qaeda. AQAP was not known by its current name 
until 2007, but al-Qaeda has been present in Yemen in some form since 
before the attacks of September 11, 2001. Al-Qaeda was responsible for 
the attack on the USS COLE in Yemen in October 2000.

    Question. List of Terrorist Organizations.--Does the administration 
maintain a list of terrorist organizations that fall within the 9/11 
AUMF? If so, can this list be shared with the Foreign Relations 
Committee either in a public or classified setting?

    Answer. In my prepared remarks, I described the three contexts in 
which the United States is currently relying on the 2001 AUMF and the 
groups against which the U.S. military has taken direct action pursuant 
to the AUMF.
    Beyond those groups against which we have taken or contemplated 
taking military action, we do not maintain a comprehensive list of all 
groups that theoretically could be subject to military action pursuant 
to the AUMF. Whether any particular group is an ``associated force'' of 
al-Qaeda is a fact-intensive inquiry that requires a careful 
examination of relevant intelligence at the time military action is 
being contemplated. The administration generally undertakes that 
careful examination only if a concrete situation is presented for 
review. Accordingly, the fact that a terrorist group has not been 
determined to be an associated force of al-Qaeda does not mean that the 
administration has made a final determination that the group is not an 
associated force.
    Per your request during the hearing, additional information on this 
topic has been provided by separate, classified communication to the 
committee.

    Question. Definition of Associated Force.--How do you define the 
term ``associated force'' with respect to al-Qaeda and the Taliban? 
What factors are considered in making the ``associated force'' 
determination? What level of confidence is required, and what legal 
standard must be met, in making such a determination? Would any of the 
following be sufficient on its own for a group to constitute an 
``associated force'' of al-Qaeda: (1) a group's pledge of loyalty to 
al-Qaeda; (2) adoption of the al-Qaeda brand; (3) acceptance of al-
Qaeda's command and control; (4) adherence to al-Qaeda's ideology; and 
(5) use of al-Qaeda's tactics, techniques, and procedures. What if in 
addition there is intelligence indicating that members of the group are 
actively planning operations against U.S. persons? Would a group's 
explicit rejection of affiliation with al-Qaeda and of its command and 
control be sufficient to remove such a group from coverage by the 9/11 
AUMF? What if in addition there is intelligence indicating that members 
of the group share al-Qaeda's goal of targeting U.S. persons? What if 
in addition there is intelligence indicating that members of the group 
are actively planning operations against U.S. persons?

    Answer. As I indicated in my prepared remarks, the concept of an 
``associated force'' is based on the well-established concept of 
cobelligerency in the law of war. To be an ``associated force'' of al-
Qaeda or the Taliban, a group must be both (1) an organized, armed 
group that has entered the fight alongside al-Qaeda or the Taliban and 
(2) a cobelligerent with al-Qaeda or the Taliban in hostilities against 
the United States or its coalition partners. A group that embraces al-
Qaeda's ideology without actually joining the fight alongside al-Qaeda 
is not an ``associated force,'' nor is every group that commits or 
threatens to commit terrorist acts against U.S. persons an ``associated 
force.''

    Question. AUMF and the Taliban Post-2014.--Does it continue to be 
the policy of the President that all combat operations in Afghanistan 
by U.S. Armed Forces will end in 2014? If so, will the 9/11 AUMF 
continue to apply to the Taliban after January 2015? If not, is it 
possible that United States will nevertheless remain in a state of 
armed conflict with the Taliban for purposes of international law?

    Answer. As described in the President's May 27, 2014, speech as 
well as his most recent State of the Union Address, if the Afghan 
Government signs a security agreement that we have negotiated, a small 
force of Americans could remain in Afghanistan with NATO allies to 
carry out two narrow missions: training and assisting Afghan forces, 
and counterterrorism operations to pursue any remnants of al-Qaeda. The 
President has been clear that it is not in our interest to remain on a 
perpetual wartime footing, and that this war, like all others, must at 
some point come to an end.
    The change in the U.S. military mission in Afghanistan is an 
important milestone, but it will not in itself mean that the 2001 AUMF 
will not apply to the Taliban after 2014. Whether and to what extent an 
armed conflict with the Taliban continues will need to be assessed at 
that time based on conditions on the ground.

    Question. Law of War Detention Against Taliban.--Will the President 
maintain the ability to conduct law of war detention against members of 
the Taliban and its associated forces after January 2015?

    Answer. The change in the U.S. military mission in Afghanistan is 
an important milestone, but it will not in itself mean that the United 
States will no longer have authority to detain members of the Taliban 
in law of war detention after 2014. Whether, and to what extent, an 
armed conflict with the Taliban continues will need to be assessed at 
that time based on conditions in Afghanistan.

    Question. Termination of Active Military Operations in 
Afghanistan.--Are there any legal implications of the termination of 
active military operations in Afghanistan on the ability of the United 
States to conduct lethal or detention operations under the 9/11 AUMF 
against al-Qaeda and its associated forces? Are detention authorities 
under the 9/11 AUMF against al-Qaeda and its associated forces 
dependent on the existence of a ``hot battlefield''? What locations are 
considered today by the administration to be a ``hot battlefield''?

    Answer. The change in the U.S. military mission in Afghanistan is 
an important milestone, but it will not in itself mean that the 2001 
AUMF will not apply to 
al-Qaeda and associated forces after 2014. The United States will 
continue to have legal authority to detain individuals from the al-
Qaeda, and associated forces until the end of the armed conflict, as a 
matter of international law, and under the AUMF. As Ms. McLeod noted in 
her prepared remarks, we remain optimistic that there will come a point 
when our efforts to disrupt, dismantle, and defeat al-Qaeda have 
succeeded to such an extent that we will no longer describe ourselves 
as being in an ``armed conflict'' with al-Qaeda to which the law of war 
applies.

    Question. Presidential Action Regarding AUMF.--Can the authorities 
provided by the 9/11 AUMF be terminated by the President acting alone, 
including through a statement declaring the end of the conflict? Can 
the President terminate the 9/11 AUMF in part (i.e., terminate with 
respect to a specific group but not to others)? If so, by what 
mechanism?

    Answer. The President has expressed his commitment to move the 
United States off a permanent war footing and has made clear the intent 
to engage with Congress to ``refine, and ultimately repeal'' the AUMF. 
The President cannot, acting alone, repeal the AUMF, which is a U.S. 
statute. However, military operations that the AUMF authorizes are, 
like all U.S. military operations, subject to the President's direction 
and control. Thus, the President could issue guidance limiting the 
military operations conducted pursuant to the AUMF. Additionally, a 
cessation of hostilities between the United States and al-Qaeda or the 
Taliban could mark the end of the armed conflict, after which the use 
of U.S. military force in the prosecution of that conflict would no 
longer be necessary and might be inconsistent with international law.

    Question. AUMF Termination.--Would the termination of the 9/11 AUMF 
toward any or all covered groups, whether by congressional action to 
repeal or by the President acting alone, end the armed conflict with 
such groups under international law, including with al-Qaeda?

    Answer. The repeal of the AUMF would not, in itself, necessarily 
end the conflict between the United States and al-Qaeda or the Taliban 
under international law. Whether and to what extent an armed conflict 
with the Taliban continued at that point would need to be assessed at 
that time based on conditions on the ground.

    Question. End of Armed Conflict Terminating AUMF.--Would the end of 
the ``armed conflict'' for purposes of international law with all 
groups covered by the 
9/11 AUMF terminate the authorities granted to the President by the 9/
11 AUMF?

    Answer. The end of the armed conflict between the United States and 
al-Qaeda and the Taliban would not itself terminate the 2001 AUMF. The 
AUMF is a U.S. statute that can only be modified or rescinded through 
the process prescribed in the U.S. Constitution.

    Question. Article II Authority for Detention.--In your testimony, 
you discussed the Article II authority of the President to use lethal 
force against an imminent and continuing threat to the United States. 
In such an instance, and in the absence of statutory authorization, 
would the President also have an Article II authority to detain enemy 
combatants under the laws of war? If so, what are the legal parameters 
of such a detention authority, including at what point would such a 
detention authority terminate? Is such a detention authority 
coextensive with the detention authority currently provided by the 9/11 
AUMF as it relates to al-Qaeda and its associated forces? If not, does 
that factor weigh in favor of the use of lethal force in any way, 
including when assessing the ``feasibility of capture''?

    Answer. Where the President has authority under Article II to use 
lethal force against individuals who pose an imminent terrorist threat 
to the United States, he would also have authority to detain 
individuals posing that threat for some period of time. The legal 
parameters of the President's authority for military detention in the 
absence of a statutory authorization are an unsettled area of law, (in 
part because military detention in the current conflict has been 
pursuant to the 2001 AUMF). That said, any legal uncertainty about the 
long-term disposition of captured terrorists would not be a factor 
relevant to the ``feasibility of capture.'' It is the President's 
policy that capture is preferred whenever feasible.

    Question. Article II Authority for Use of Lethal Force Versus 
Detention.--Are there circumstances where the President has Article II 
authority to use lethal force, but where he lacks law of war detention 
authority? In such a circumstance, would the lack of detention 
authority be a factor weighing in favor of the use of lethal force in 
any way, including when assessing the ``feasibility of capture''?

    Answer. The answer to both questions is ``No.'' Where the President 
has authority under Article II of the Constitution to employ lethal 
military force against individuals who pose a continuing imminent 
terrorist threat to the United States, he would also have authority to 
detain individuals posing that threat for some period of time. The 
legal parameters of the President's authority for military detention in 
the absence of a statutory authorization are an unsettled area of law 
(in part because military detention in the current conflict has been 
pursuant to the 2001 AUMF). Any legal uncertainty regarding the long-
term disposition of a detainee would not be a factor in applying the 
President's policy preference to capture rather than kill terrorist 
suspects when capture is feasible.
                                 ______
                                 

                 Responses of Mary McLeod to Questions 
                    Submitted by Senator Bob Corker

    Question. In answering the below questions, please in every 
instance clearly distinguish between which portions of your answers 
that relate to: legal authorities versus policy guidance; U.S. versus 
international law; and the authorities granted by the 9/11 AUMF versus 
those granted by Article II of the Constitution.

   Does the April 1, 2011, OLC Memorandum on Authority to Use 
        Military Force in Libya reflect the administration's current 
        understanding of Presidential authority to take military action 
        without prior congressional authorization?

    Answer. Yes, the April 1, 2011, OLC Memorandum on Authority to Use 
Military Force in Libya continues to reflect the administration's 
position on the scope of Presidential authority to take military action 
without prior congressional authorization for the operations under 
consideration in that Memorandum.

    Question. The Libya OLC Memo states: ``We have acknowledged one 
possible constitutionally based limit on [. . .] Presidential authority 
to employ military force in defense of important national interests--a 
planned military engagement that constitutes a `war' within the meaning 
of the Declaration of War Clause may require prior congressional 
authorization''(emphasis added).

   Does this administration believe that conflict that 
        constitutes a ``war'' within the meaning of the Declaration of 
        War Clause might not require prior congressional authorization?
   If so, under what circumstances?
   Was congressional authorization necessary under the 
        Constitution to conduct Operation Iraqi Freedom?
   Was congressional authorization required at any point under 
        the War Powers Resolution to conduct Operation Iraqi Freedom? 
        If so at what point?
   What is the definition of a ``planned'' military operation?

    Answer. While acknowledging a possible constitutionally based 
limitation on Presidential authority under the Constitution to employ 
military force in cases involving a planned military operation that 
constitutes a war within the meaning of the Declaration of War clause, 
the OLC Memorandum in question concluded that the anticipated nature, 
scope, and duration of the operations under consideration did not rise 
to the level of war in the sense of that clause. At the same time, this 
and other OLC opinions have recognized the congressional interest, 
including as reflected in the War Powers Resolution, in providing 
express congressional authorization for the use of force by the U.S. 
military in major, prolonged conflicts such as the wars in Vietnam and 
Korea, where a fact-specific assessment has been conducted regarding 
the anticipated nature, scope, and duration of the planned military 
operations and of the exposure of U.S. military personnel to 
significant risk over a substantial period. By providing for United 
States involvement in hostilities to continue for 60 days (or 90 days 
for military necessity), Congress signaled in the War Powers Resolution 
that it considers express congressional authorization most critical for 
such major, prolonged conflicts.
    While what constitutes a ``planned'' military operation is a fact-
specific question, the President decided to seek an Authorization to 
Use Military Force for Iraq in 2002 prior to the commencement of 
Operation Iraqi Freedom, the Congress provided such an authorization in 
H.J. Res. 114, and the President in his signing statement set forth his 
position in relation to that authorization. These actions by Congress 
and the President moot the question whether such an authorization would 
have been required under the Constitution and the War Powers 
Resolution. Given international concerns with Iraq's weapons of mass 
destruction (WMD) program and Iraq's failure to comply with relevant 
United Nations Security Council resolutions, there was a sustained 
period of almost 10 months of preparation and planning for possible 
military action while the United States and others sought a diplomatic 
resolution of the crisis. In addition to publicly signaling the ongoing 
planning for military operations by passing the AUMF-Iraq, the United 
States actively sought (and received) commitments from a number of 
allies and partners for the deployment of a multinational force in the 
event that it became necessary to enforce applicable United Nations 
Security Council resolutions through military force.

    Question. According to the Libya OLC memo, the President has the 
constitutional authority to use force if he can ``reasonably determine 
that such use of force [is] in the national interest.''

   Can the President take lethal action against foreign 
        individuals or members of foreign terrorist organizations that 
        do not pose an imminent threat so long as he determines it is 
        in the national interest to do so?
   If so, what if any limits are there on such action?

    Answer. As the April 1, 2011, OLC memorandum indicated, the 
President has authority under the Constitution to use force not 
amounting to ``war'' in the constitutional sense, where he reasonably 
determines that such force is in the national interest, at least 
insofar as the Congress has not specifically restricted it by statute. 
In the case of Libya, the OLC memorandum identified regional stability 
and supporting the U.N. Security Council's credibility and 
effectiveness as a sufficient basis to justify, under Article II of the 
Constitution, the President's use of military force in Libya (a 
determination that did not involve a conclusion that Libya or any 
Libyan party posed an imminent threat to the United States). Whether 
and how the President's constitutional authority to use force might be 
invoked in future cases, including the determination of the national 
interests that form the basis of potential military actions, will 
necessarily turn on the particular facts of those cases.
    As indicated in my testimony, any use of military force by the 
United States would be governed by international law. Under 
international law, the United States has an inherent right of self-
defense to use force to respond to an armed attack, or the imminent 
threat of an armed attack. In addition, the United States may use 
military force on the basis of State consent or when authorized to do 
so by the UN Security Council. In the case of Libya, on March 28, 2011, 
the UN Security Council adopted Resolution 1973, which authorized 
member states, acting individually or through regional organizations, 
``to take all necessary measures . . . to protect civilians and 
civilian populated areas under threat of attack'' in Libya.

    Question. Can a conflict constitute a ``war'' within the meaning of 
the Declaration of War Clause, or constitute ``hostilities'' for the 
purposes of the War Powers Resolution, in situations where the U.S. 
takes military action but there are no ``boots on the ground''?
    At what point or under what circumstances do unmanned drone strikes 
constitute a ``war'' within the meaning of the Declaration of War 
Clause, or constitute ``hostilities'' for the purposes of the War 
Powers Resolution?

    Answer. Whether the use of military force constitutes a ``war'' 
within the meaning of the Declaration of War Clause would, as described 
in previous OLC opinions, involve the need for a fact-specific 
assessment of the anticipated nature, scope, and duration of the 
planned military operations and of the exposure of U.S. military 
personnel to significant risk over a substantial period. Whether a 
military operation rises to level of ``hostilities'' for purposes of 
the War Powers Resolution similarly is a fact-based assessment. Whether 
there are ``boots on the ground,'' and how and to what extent the 
United States may be employing unmanned aerial vehicles or other 
weapons systems, would be among the considerations in conducting such 
assessments, but it is not possible in the absence of a specific 
factual context to anticipate how those factors would be assessed in 
every case.

    Question. In your testimony, you appeared to suggest the President 
had the authority to strike Syria after the August 2013 chemical 
weapons attack without congressional authorization. Is this the 
position of the administration?

   If so, under what specific constitutional and statutory 
        authority would those strikes have been conducted?
   Please also provide your analysis of how such authorities 
        apply to permit such strikes.
   Under what theory of international law would such strikes 
        be authorized?
   Would the President have been required to notify Congress 
        or seek congressional authorization pursuant to the War Powers 
        Resolution of any such strikes?

    Answer. In his August 31, 2013, Rose Garden speech, the President 
communicated his decision to seek authorization for the use of force 
from the American people's representatives in Congress prior to taking 
military action against targets in Syria. In describing the planned 
military action, he explained that U.S. military action in Syria would 
not be an open-ended intervention and would not involve putting ``boots 
on the ground,'' and that instead military action would be designed to 
be limited in duration and scope. In explaining his decision, the 
President said that ``while I believe I have the authority to carry out 
this military action without specific congressional authorization, I 
know that the country will be stronger if we take this course, and our 
actions will be even more effective.'' As the crisis was avoided and no 
military engagement in fact occurred, it is not possible to assess the 
precise nature and scope of notifications and reports that would have 
been provided consistent with the War Powers Resolution had military 
action taken place.
    The administration did not present a position on the international 
law implications of a possible Syrian military engagement in August 
2013, although the President made clear in his August 31, 2013, speech 
that he was prepared to take military action ``without the approval of 
a United Nations Security Council that, so far, has been completely 
paralyzed and unwilling to hold Assad accountable.'' Any finalized U.S. 
position on this question would have been articulated after close 
consultation with allies as part of our efforts to develop a coalition 
to pursue military action; the resolution of the crisis through Syria's 
agreement to disarm its chemical weapons capabilities in accordance 
with United Nations Security Council Resolution 2118 obviated the need 
for these consultations.
                                 ______
                                 

             Responses of Stephen W. Preston to Questions 
                Submitted by Senator Benjamin L. Cardin

              dod directive 2311.01e reportable incidents
    Department of Defense Directive Number 2311.01E requires that ``all 
reportable incidents committed by, or against, U.S. personnel'' be 
``investigated thoroughly, and where appropriate, remedied by 
corrective action.'' This reflects law of war and international human 
rights law requirements to investigate potentially unlawful killings.

    Question. What steps are U.S .personnel required to take to 
investigate reports of civilian deaths or potentially unlawful deaths, 
including from drone strikes, as a matter of law and U.S. policy?

    Answer. The United States goes to great lengths to avoid civilian 
casualties, providing protections as a matter of policy that go well 
beyond those required by the law of armed conflict. Unfortunately, 
civilian injuries or deaths may occur in U.S. counterterrorism 
operations despite these precautions. Where there is credible 
information that civilians may have been injured or killed, the United 
States investigates the matter, drawing on available information to 
make an informed determination about whether civilians were, in fact, 
injured or killed. After-action reviews are conducted both to ascertain 
what occurred and to ensure that the United States is taking the most 
effective steps to minimize the risk of noncombatants being injured or 
killed in future operations. Additionally, longstanding DOD policy 
requires prompt reporting, thorough investigation and, where 
appropriate, corrective action in response to any possible, suspected, 
or alleged violation of the law of war for which there is credible 
information.

    Question. Does this directive apply to all Department of Defense 
personnel, including those operating under Title 50 covert action 
authority?

    Answer. DOD personnel are required to conduct themselves consistent 
with law of armed conflict principles at all times, and always remain 
subject to the War Crimes Act of 1996 and, in the case of military 
members, to the Uniform Code of Military Justice. DOD's long-standing 
practice is entirely consistent with the classified annex to the joint 
explanatory statement accompanying the National Defense Authorization 
Act for Fiscal Year 2014.

    Question. How does the executive branch interpret the laws of war 
with regard to the authority to use lethal force and the legal 
definition of armed conflict?

    Answer. During an armed conflict, the United States views the law 
of armed conflict as the relevant legal framework governing the conduct 
of hostilities. Under the law of armed conflict, military operations, 
including the use of lethal force, must comply with the principles of 
necessity, proportionality, distinction, and humanity. The use of 
force, including lethal military force, in prosecuting the armed 
conflict against al-Qaeda, the Taliban, and associated forces is 
consistent with the law of war. All U.S. military operations against 
al-Qaeda, the Taliban, and associated forces are conducted in a manner 
consistent with Common Article 3 of the Geneva Conventions and all 
other international law applicable in noninternational armed conflicts.

    Question. In particular, how does the administration's claim to be 
in a global armed conflict of indefinite duration comply with the 
requirement for armed conflict that hostilities be between the United 
States and a group that is sufficiently organized and reach a level of 
intensity that is distinct from sporadic acts of violence?

    Answer. The U.S. conflict against al-Qaeda qualifies under 
international law as an armed conflict not of an international 
character. The U.S. Supreme Court adopted this characterization in 2006 
in determining that Common Article 3 of the Geneva Conventions of 1949 
is applicable to detainees captured in the conflict.
                                 ______
                                 

                  Response of Mary McLeod to Question 
                Submitted by Senator Benjamin L. Cardin

    Question. The executive branch has stated that the AUMF authorizes 
the use of force against al-Qaeda and its ``associated forces,'' 
defined as organized armed groups that have ``entered the fight 
alongside al-Qaeda'' and are ``co-belligerent[s] with al-Qaeda in 
hostilities against the United States or its coalition partners.''

   What specific organizational features or conduct would lead 
        a group to be classified as an associated force?

    Answer. As indicated in previous U.S. Government statements, 
including in the prepared remarks for this hearing of my colleague, 
Stephen Preston, the concept of an ``associated force'' is based on the 
well-established concept of co-belligerency in the laws of war. To be 
an ``associated force'' of al-Qaeda or the Taliban a group must be both 
(1) an organized, armed group that has entered the fight alongside al-
Qaeda or the Taliban and (2) a co-belligerent with al-Qaeda or the 
Taliban in hostilities against the United States or its coalition 
partners. A group that embraces 
al-Qaeda's ideology without actually joining the fight alongside al-
Qaeda is not an ``associated force,'' nor is every group that commits 
or threatens to commit terrorist acts against U.S. persons an 
``associated force.''
                                 ______
                                 

            Response of Prof. Harold Hongju Koh to Question 
                Submitted by Senator Benjamin L. Cardin

    Administration officials have reported that U.S. reliance on war 
authorities undercuts our ability to cooperate with crucial partners 
and allies. In response to the 2011 deaths of two German citizens in 
Waziristan, Germany restricted information-sharing with the U.S. 
Further, Attorney General Eric Holder said ``A number of countries have 
indicated that they will not cooperate with the United States in 
certain counterterrorism efforts if we intend to use that cooperation 
in pursuit of a military commission prosecution.'' The administration 
has also stated that Guantanamo, which is based on AUMF authority, 
``plagues our bilateral and multilateral relationships, creates 
friction with governments whose nationals we detain, provides cover for 
regimes whose detention practices we oppose, and provides our enemies 
with a symbol used to foster anti-U.S. sentiments around the world.''

    Question. How would a U.S. decision to expand or extend our use of 
war authorities to combat terrorism affect our global security 
cooperation?

    Answer. As a former Legal Adviser and Assistant Secretary at the 
State Department, I am concerned that a U.S. decision to expand or 
extend our use of war authorities to combat terrorism could negatively 
affect our global security cooperation by undermining the trust and 
cooperation of critical allies. As I noted on page 14 of my written 
statement, ``European courts are showing increased initiative in 
reviewing European cooperation in targeting operations for compliance 
with domestic and international law,'' which will likely have a 
chilling effect on multilateral cooperation. History suggests that 
concerns about legal liability may well reduce our allies' intelligence 
and security cooperation with the United States.
    In the German example you cite, the claimants argued in a German 
federal court that Germany's transmission of data allegedly used to 
conduct a drone strike that resulted in the death of a German citizen 
abroad violated both international criminal law and the German criminal 
code.\1\ Apparently, the threat of judicial review of drone strikes has 
already undermined intelligence-sharing with some key European allies 
who are worried about potential liability under their own domestic laws 
for cooperation. For example, in 2013, an anonymous British Government 
source told The New York Times that British intelligence agencies are 
increasingly concerned about the possibility of being ``punished by the 
judiciary for something the Executive ordered them to do.'' \2\ In 
2013, British officials were sued by a Pakistani citizen of the United 
Kingdom whose father allegedly died in a U.S. drone strike abroad on a 
charge that they had unlawfully shared intelligence used to conduct the 
strike.\3\ Although the Court of Appeal ultimately declined to hear the 
case based on the act of state doctrine, citing concerns that it would 
``necessarily entail a condemnation of the activities of the United 
States,'' \4\ British human rights groups condemned the dismissal and 
may well seek future litigation of similar cases.
    European allies are also becoming concerned about potential 
liability under international law. In 2013, two human rights 
organizations filed a complaint with the International Criminal Court 
accusing several NATO member states, the United Kingdom, Germany, and 
Australia, of complicity in war crimes as a result of their alleged 
cooperation with American drone strikes abroad.\5\ A Dutch NGO filed a 
similar lawsuit in November 2013, demanding that Dutch intelligence 
services stop using NSA data--which allegedly had not been obtained in 
accordance with Dutch law--to conduct drone strikes in Somalia, and 
expressed hope that the lawsuit would serve as a model for similar 
lawsuits challenging the legality of intelligence sharing with the 
United States.\6\ Although the European Court of Human Rights has not 
considered the legality of targeted killing, in 2006, the Council of 
Europe asked the Venice Commission to review the application of the 
European Convention of Human Rights to collaborative intelligence 
activities. The resulting report asserted ``member states have a strong 
duty to ensure that [the Convention] is respected by allied 
intelligence services operating within their own territory.'' \7\ 
Recent history suggests that such issues introduce diplomatic tension 
with allies and reduce their intelligence and security cooperation out 
of concern for avoiding legal liability.\8\

----------------
End Notes

    \1\ See Louise Osborne, ``Germany Denies Phone Data sent to NSA 
Used in Drone Attacks,'' The Guardian, Aug. 12, 2013.
    \2\ Ravi Somaiya, ``Drone Strike Lawsuit Raises Concerns on 
Intelligence Sharing,'' N.Y. Times, Jan. 30, 2013.
    \3\ See Noor Khan v. Secretary of State for Foreign and 
Commonwealth Affairs, England and Wales Court of Appeal (Jan. 20, 
2014).
    \4\ Shaheed Fatima, ``Noor Khan: A Missed Opportunity?'' Just 
Security (Jan. 30, 2014, 11:30 AM).
    \5\ Kevin Jon Heller, ``The Reprieve Drone Strike Communication: 
Jurisdiction,'' Opinio Juris (Feb. 24, 2014, 3:55 PM).
    \6\ See New Europe Online, ``Dutch Minister Faces NSA Lawsuit'' 
(Jun. 11, 2013) (statement of lawyer for the coalition, that ``[w]e 
based our case on European jurisdiction, so the case could simply be 
copied in other countries.'').
    \7\ Richard J. Aldrich, ``US-European Intelligence Co-operation on 
Counter-Terrorism: Low Politics and Compulsion,'' 11 Br. J. Polit. Int. 
Relat. 122, 133 (2009). Aldrich, a professor of international security 
at the University of Warwick who studies transatlantic intelligence 
cooperation, further noted that in recent years, Europeans are 
increasingly ``looking over their shoulder at the provision of ECHR 
when working with the Americans whatever the location.'' Id. at 134.
    \8\ For example, in 2008, British officials demanded full details 
of intelligence-gathering flights the United States flew from a base in 
Cyprus, in case they ``put the U.K. at risk of being complicit in 
unlawful acts.'' HMG Outlines New Procedures for Requesting Intel 
Flight Clearances (Apr. 18, 2008).

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