[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
__________
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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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