[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]


   AUTHORIZATION FOR THE USE OF MILITARY FORCE AND CURRENT TERRORIST 
                                THREATS

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

                                HEARING

                               BEFORE THE

                      COMMITTEE ON FOREIGN AFFAIRS
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED FIFTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             JULY 25, 2017

                               __________

                           Serial No. 115-62

                               __________

        Printed for the use of the Committee on Foreign Affairs
        
        
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                      COMMITTEE ON FOREIGN AFFAIRS

                 EDWARD R. ROYCE, California, Chairman
CHRISTOPHER H. SMITH, New Jersey     ELIOT L. ENGEL, New York
ILEANA ROS-LEHTINEN, Florida         BRAD SHERMAN, California
DANA ROHRABACHER, California         GREGORY W. MEEKS, New York
STEVE CHABOT, Ohio                   ALBIO SIRES, New Jersey
JOE WILSON, South Carolina           GERALD E. CONNOLLY, Virginia
MICHAEL T. McCAUL, Texas             THEODORE E. DEUTCH, Florida
TED POE, Texas                       KAREN BASS, California
DARRELL E. ISSA, California          WILLIAM R. KEATING, Massachusetts
TOM MARINO, Pennsylvania             DAVID N. CICILLINE, Rhode Island
JEFF DUNCAN, South Carolina          AMI BERA, California
MO BROOKS, Alabama                   LOIS FRANKEL, Florida
PAUL COOK, California                TULSI GABBARD, Hawaii
SCOTT PERRY, Pennsylvania            JOAQUIN CASTRO, Texas
RON DeSANTIS, Florida                ROBIN L. KELLY, Illinois
MARK MEADOWS, North Carolina         BRENDAN F. BOYLE, Pennsylvania
TED S. YOHO, Florida                 DINA TITUS, Nevada
ADAM KINZINGER, Illinois             NORMA J. TORRES, California
LEE M. ZELDIN, New York              BRADLEY SCOTT SCHNEIDER, Illinois
DANIEL M. DONOVAN, Jr., New York     THOMAS R. SUOZZI, New York
F. JAMES SENSENBRENNER, Jr.,         ADRIANO ESPAILLAT, New York
    Wisconsin                        TED LIEU, California
ANN WAGNER, Missouri
BRIAN J. MAST, Florida
FRANCIS ROONEY, Florida
BRIAN K. FITZPATRICK, Pennsylvania
THOMAS A. GARRETT, Jr., Virginia

     Amy Porter, Chief of Staff      Thomas Sheehy, Staff Director

               Jason Steinbaum, Democratic Staff Director
                            
                            
                            C O N T E N T S

                              ----------                              
                                                                   Page

                               WITNESSES

The Honorable Michael B. Mukasey (former Attorney General of the 
  United States).................................................     4
Brigadier General Richard C. Gross, USA, Retired, partner, Fluet 
  Huber + Hoang, PLLC (former legal counsel to the Chairman of 
  the Joint Chiefs of Staff).....................................    12
The Honorable Matthew G. Olsen, lecturer on law, Harvard Law 
  School (former Director of the National Counterterrorism 
  Center)........................................................    20

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

The Honorable Michael B. Mukasey: Prepared statement.............     6
Brigadier General Richard C. Gross, USA, Retired: Prepared 
  statement......................................................    15
The Honorable Matthew G. Olsen: Prepared statement...............    22

                                APPENDIX

Hearing notice...................................................    74
Hearing minutes..................................................    75
The Honorable Eliot L. Engel, a Representative in Congress from 
  the State of New York: Material submitted for the record.......    77
The Honorable David Cicilline, a Representative in Congress from 
  the State of Rhode Island: Material submitted for the record...    84
The Honorable Gerald E. Connolly, a Representative in Congress 
  from the Commonwealth of Virginia: Prepared statement..........    90
Written responses from the Honorable Michael B. Mukasey to 
  questions submitted for the record by the Honorable Brad 
  Sherman, a Representative in Congress from the State of 
  California.....................................................    92

 
   AUTHORIZATION FOR THE USE OF MILITARY FORCE AND CURRENT TERRORIST 
                                THREATS

                              ----------                              


                         TUESDAY, JULY 25, 2017

                       House of Representatives,

                     Committee on Foreign Affairs,

                            Washington, DC.

    The committee met, pursuant to notice, at 10:00 a.m., in 
room 2172 Rayburn House Office Building, Hon. Edward Royce 
(chairman of the committee) presiding.
    Chairman Royce. This hearing will come to order.
    Today we are going to review a critical national security 
issue: The role of Congress in authorizing the use of military 
force. We have a very distinguished panel to help us do so.
    Our Nation continues to face the threat of radical jihadist 
terrorism. We have confronted this deadly movement with some 
measure of success, largely because of the skill, the 
dedication, and the sacrifice of the brave men and women of our 
armed services. But as recent attacks on the United States and 
our allies--such as the United Kingdom--show, the threat 
remains high. Our response must be coordinated, using 
information and economic tools, too.
    Today, most U.S. combat operations are conducted under the 
Authorization for the Use of Military Force, or the AUMF, that 
was enacted following the vicious September 11th, 2001 attacks 
on our country. That AUMF has been used against al-Qaeda, the 
Taliban, and what have since become known as ``associated 
forces.'' Nearly 3 years ago, the Obama administration 
determined that those forces include ISIS, which originated as 
al-Qaeda in Iraq.
    The continued reliance on this legal authority has spurred 
debate. Some maintain that the 2001 AUMF has been stretched too 
far. Some believe that Congress--most of whose members were not 
here in 2001--should debate and reauthorize our military 
engagement. We have Members of Congress who have fought these 
wars, whose voices carry strong weight.
    Over the last several years, this committee has conducted 
more than 45 hearings related to conflicts fought under the 
AUMF and we have often met in classified settings with military 
commanders and other officials to review the grave terrorist 
threat against our Nation. I know that our members on both 
sides of the aisle take their responsibilities very seriously. 
We have had many conversations about the AUMF.
    I believe that the President has the authority under the 
2001 AUMF to defeat and destroy ISIS. Key outside experts and 
officials from the previous administration who have appeared 
before this committee have testified to this. But I also 
believe that a new and updated authorization for the use of 
military force would be ideal. The challenge is getting 
agreement on what exactly it should contain.
    Proposed replacements vary widely. Some would empower the 
Commander in Chief. Others would constrain him. Some would 
target groups. Others would target ideologies. Some are limited 
in time and place and type of military force. Others are 
unlimited.
    What I cannot support is any effort to repeal the 2001 AUMF 
before reaching consensus on these issues. We face determined 
enemies--al-Qaeda, ISIS, and the Taliban--absolutely committed 
to harming us. There shouldn't be any signs of wavering in our 
fight.
    Today's witnesses will shed light on a few key questions: 
Does the 2001 AUMF provide sufficient legal authority to deal 
with all of today's threats? Does continuing to rely on that 
authorization create any operational challenges or legal 
dangers? What should--or shouldn't--be a replacement and what 
should be included in that AUMF?
    Authorizing the use of military force is a critical and 
solemn congressional responsibility. This committee will 
continue its focus on it.
    I will now turn to Ranking Member Engel for his statement.
    Mr. Engel. Thank you. Thank you, Mr. Chairman. Thank you 
for calling this hearing.
    To our witnesses, welcome to the Foreign Affairs Committee. 
We are grateful for your time and expertise.
    The role of Congress in authorizing and overseeing the use 
of American military force around the world is really such an 
important issue.
    Some of us have been trying to advance this debate for the 
last several years. But for the most part, the topic has 
remained on the back burner in the halls of Congress.
    I am glad we are focusing on it today because I think the 
need for congressional leadership is more important now than 
ever.
    The authorization for the use of military force passed by 
Congress in 2001, and I was here then, authorized the President 
to take military action against, and I quote, ``those nations, 
organizations, or persons he determines planned, authorized, 
committed, or aided the terrorist attacks that occurred on 
September 11th, 2001, or harbored such organizations or 
persons.''
    In the intervening years, it has been used as a legal 
justification for military force in a host of countries around 
the world. Today, it is the legal basis for the fight against 
ISIS.
    That gives you a sense of just how broadly this 
authorization has been interpreted by successive 
administrations.
    I was here when we passed this measure nearly 16 years ago, 
and I have to say that none of us envisioned we would still be 
relying on it nearly two decades later to fight an enemy that 
didn't even exist when the Twin Towers came down. It has 
essentially become a blank check.
    Now, whatever you think of President Obama's foreign 
policy, his administration did come to Congress and ask for an 
updated authorization.
    The current administration has not, and what concerns me 
now is that we have seen escalating military activity on a 
number of fronts--ratcheting up the use of force in 
Afghanistan, a pledge by the administration to ramp up the 
fight against ISIS, reckless talk about expanding the 
Guantanamo Bay Detention Facility--which even President Bush 
wanted to close--declaring parts of Somalia so-called ``areas 
of active hostilities,'' which decreased oversight of air 
strikes and increases the risk that American forces could be 
drawn into clan conflicts, and strikes against the Assad regime 
and associated forces.
    Now, I am not saying that we shouldn't do some of this. I 
am not saying that we should withdraw from these challenges.
    The fight against ISIS is critical to protect the national 
security of the United States and our allies. We have seen too 
many murdered children and families and must continue to ensure 
that Assad does not use chemical weapons and we have invested 
too much blood and treasure in Afghanistan to stand by and 
watch it fall back into the hands of extremists.
    But we have to ask ourselves: Are we comfortable sending 
American service members into harm's way based on a virtually 
limitless 2001 authorization? If so, what will be the next 
skirmish supposedly covered by this 16-year-old measure? 
Extended hostilities toward Assad's forces? Shooting down a 
Russian MiG? This, to me feels like a slippery slope.
    So Congress needs to do its job. We need to do what we 
should have d1 deg. done years ago and pass a new 
authorization governing the conflicts we are engaged in today. 
And frankly, even though we call it an authorization, what we 
need is a limitation.
    The 2001 authorization is too broad. It needs to be put out 
to pasture and scaled back. We need an authorization tailored 
to the challenges we face today, one that gives the 
administration the tools it needs to ensure our security 
without dragging us into another war, turning the slippery 
slope into a dangerous cliff.
    Congress has the power to do this and we need to act. But 
for us to craft a measure with the right boundaries we need to 
know what strategies the United States is pursuing in these 
global hot spots.
    We have U.S. troops on the ground in Syria but we still 
don't have a clear sense of the end game there or when the 
troops will come home.
    With the conflict in Afghanistan once again heating up and 
a disturbing spike in civilian casualties, we have yet to learn 
the Trump administration's approach to America's longest war.
    And now that we have received the administration's plan to 
deal with ISIS, I am not clear how it differs at all from the 
approach of the last administration.
    We haven't heard anything from the administration about how 
it intends to win the peace in all these places once the 
fighting is over.
    I can tell you one thing--slashing funding for diplomacy 
and development is the wrong approach that the administration 
is doing. Planning a war without planning to secure the peace 
is a sure path toward future conflict and instability and if we 
don't have a strong State Department and USAID, we are taking 
away the tools to build that long-term solution.
    You cannot make foreign policy flying by the seat of your 
pants, especially when it comes to our men and women in 
uniform. The administration should be up here explaining how 
they plan to deal with these conflicts, not careening from 
crisis to crisis.
    But one way or another, we, Congress, need to act. It is 
time to retire the 2001 AUMF and stop shirking our 
responsibility. I have an approach that I have been working on. 
Other members have offered their views as well.
    If these approaches aren't perfect at first, it doesn't 
mean we can throw up our hands and walk away. It means we need 
to work across the aisle to find the right answer and the right 
approach.
    So I look forward to hearing from our witnesses. I thank 
you again, Mr. Chairman. I want to hear from our witnesses 
about the right way to grapple with this problem.
    Before I yield back, I would like to ask unanimous consent 
that Representative Barbara Lee be allowed to ask questions 
after all members of the committee have had their chance at 
this morning's hearing.
    There is strong interest in this issue from the advocacy 
community. We have received statements for the record from 
Human Rights First, Third Way, and the Constitution Project as 
well as a letter from a coalition of human rights, civil 
liberties, and faith-based organizations and I would also like 
to ask unanimous consent to enter these documents into the 
record.
    Chairman Royce. Without objection.
    We are pleased to welcome our colleague, Congresswoman 
Barbara Lee from California.
    And as to your suggested approach there, Mr. Engel, I quite 
concur. I think it needs to be bipartisan.
    This morning we are pleased to be joined by a distinguished 
panel that we think will shed light on this.
    The Honorable Michael Mukasey served as the 81st Attorney 
General of the United States and as a U.S. district judge in 
the Southern District of New York.
    We have Brigadier General Richard Gross, partner at the 
FH&H law firm in northern Virginia. Previously General Gross 
served for over 30 years in the U.S. Army. He was the legal 
counsel to the chairman of the Joint Chiefs of Staff.
    We have Mr. Matt Olsen, a lecturer on law at Harvard Law 
School. Previously, Mr. Olsen served as the director of the 
National Counterterrorism Center.
    So without objection, the witnesses' full prepared 
statements will be made part of the record and all members will 
have 5 calendar days to submit any statements or questions or 
any extraneous material for the record.
    Judge, would you like to begin? Thank you.

STATEMENT OF THE HONORABLE MICHAEL B. MUKASEY (FORMER ATTORNEY 
                 GENERAL OF THE UNITED STATES)

    Judge Mukasey. Thank you very much, Mr. Chairman.
    Before I make any remarks, I'd like to thank both the chair 
and the ranking member for having invited me and for holding 
this hearing, which is, as you both pointed out, enormously 
important and represents a real political commitment to putting 
this Congress on record as it should be with this country and I 
really appreciate that.
    I am not going to read my statement. It is in the record. I 
would simply make two additional points that are additional to 
what I said in my prepared remarks, one having to do with the 
sunset provision, which I endorsed simply because it does 
provide for this added opportunity on every several years to 
recommit to a course of action.
    Obviously, there are authorities that have to remain in 
force notwithstanding the arrival of a sunset so that, for 
example, people detained in an initial encounter, 
notwithstanding the sunset there would have to a be a separate 
determination with respect to them. It doesn't become a home 
free all for them.
    And secondly, with respect to a requirement or statement of 
strategy, which I did not touch on in my remarks but I think 
that, obviously, it is important to have a general idea of what 
you are going to do. But a statement of strategy that tells 
your adversaries what it is you plan to do and how it is you 
plan to do it I don't think is well taken and, as I believe the 
ranking member pointed out, micro managing any combat is a 
dangerous thing. So that that ought to be taken into account.
    So far as our not having been able to envision being in 
Afghanistan 16 years on from 9/11, I should point out that when 
the bombers hit Pearl Harbor, they did not also drop leaflets 
that said, don't worry, folks, this is all going to be over by 
1945.
    You never know when at the beginning of combat how it is 
going to end. That is the nature of a conflict like this. But I 
don't think that the fact that we don't precisely know how and 
when should prevent us from opposing to the extent we can what 
we are up against.
    Thank you very much.
    [The prepared statement of Judge Mukasey follows:]
    
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    Chairman Royce. Thank you, your Honor.
    General.

STATEMENT OF BRIGADIER GENERAL RICHARD C. GROSS, USA, RETIRED, 
PARTNER, FLUET HUBER + HOANG, PLLC (FORMER LEGAL COUNSEL TO THE 
             CHAIRMAN OF THE JOINT CHIEFS OF STAFF)

    General Gross. Thank you, Chairman Royce. Thank you, 
Ranking Member Engel and members of the committee. I am very 
grateful for the opportunity to----
    Chairman Royce. Make sure, General, that you've got that 
red button on. There we go.
    General Gross. It was.
    Chairman Royce. And maybe pull it a little closer would be 
the other suggestion.
    General Gross. Yes, sir.
    Again, it is a privilege to appear before the committee 
today. I am purposely going to keep my remarks brief.
    What I hope to offer the committee is a military, legal 
practitioner's view of AUMFs and in particular the 2001.
    As you mentioned, I retired after over 30 years in the U.S. 
Army, both as an infantry officer and as a judge advocate. I 
was the legal advisor to multiple joint and special operations 
task forces with multiple deployments to Afghanistan and Iraq.
    I was also the legal advisor for the Joint Special 
Operations Command, NATO ISAF, U.S. Forces Afghanistan and U.S. 
Central Command, and in my final 4 years I was General 
Dempsey's legal advisor on the Joint Staff when he was the 
chairman of the Joint Chiefs of Staff.
    I worked closely when I was on the Joint Staff with the DoD 
general counsel, the National Security Council legal staff, and 
the interagency lawyers groups on national security law issues 
to include counterterrorism operations.
    I dealt with the 2001 and 2002 AUMFs multiple countless 
times over those 4 years both in the context of specific 
targeting operations as well as more general discussions on the 
scope of the AUMF and proposals to revise or amend it. Many of 
those discussions actually took place here in Congress in both 
the Senate and the House in briefings, hearings, and informal 
discussions with members and congressional staff.
    My views on the 2001 AUMF have not changed since I retired 
from the military. I continue to feel the 2001 AUMF is 
adequate. It contains adequate legal authority for the use of 
military force against the Islamic State of Iraq and Syria, 
which was a view first adopted by the previous administration 
and I believe to be the position of the current administration.
    I recognize, however, that reasonable minds disagree on 
this point and many have voiced criticisms of the decision to 
rely on the 2001 AUMF as the domestic legal authority to 
conduct military operations against ISIS.
    While I believe the 2001 AUMF is adequate to address the 
ISIS threat, I also believe it would be prudent for Congress to 
enact the new AUMF to specifically address the threat of ISIS 
and other terrorist groups for a variety of reasons.
    First, a new AUMF would reflect the current will of the 
American people as exercised through their elected leaders 
regarding our ongoing operations against ISIS, al-Qaeda, the 
Taliban, and other terrorist groups.
    A new AUMF would also define the current scope and extent 
of our military's mission against terrorist organizations, and 
finally, a new AUMF would signal congressional support to the 
U.S. armed forces.
    As the committee considers what provisions a new AUMF might 
contain, please allow me to give you my perspective as a 
practitioner.
    When I review an AUMF proposal, I think of it in terms of 
the mission--who, what, when, where, and how. Against whom are 
we using force, what force is authorized, and for how long? 
Where is the use of force authorized? Finally, how are we 
authorized to use that force? Are there restraints or 
restrictions?
    To be clear, I do not think it is helpful nor desirable to 
have all of these elements in an AUMF, a point I will expound 
upon more in a moment.
    With these elements, there is necessarily a trade-off 
between transparency and certainty, on one hand, and 
flexibility for commanders on the other.
    The more descriptive or proscriptive a provision of AUMF 
is, the less flexibility it may afford the President and 
military commanders to pursue a dynamic ever-changing enemy 
terrorist group.
    I would urge the committee to carefully consider that 
balance as it takes up the AUMF proposals.
    The most critical provision of an AUMF is the who--
identifying the enemy against whom force may be used. Our 
current enemies do not wear a uniform, hide among civilian 
populations, and operate in a dynamic, disperse network of 
clandestine cells. This makes defining them challenging.
    Given that, there should be some flexibility in the AUMF to 
account for an ever-changing and expansive nature of the enemy 
while also defining with affiliates and co-belligerents rise to 
the level of associated forces.
    The what element defines the scope of the authorized force. 
The 2001 AUMF authorized the President to use all necessary and 
appropriate force. This same language is also used in the 
Senate Joint Resolution introduced by Senators Flake and Kaine.
    This particular language provides maximum flexibility to 
commanders. Other elements--when, where, and how--often appear 
in AUMF proposals, but these elements may create unintended 
consequences. I will discuss each of these in turn.
    The when or for how long element usually arises in the form 
of a sunset provision which results in the automatic 
termination of the AUMF after a set period of time. These are 
generally included as a forcing function, a means of ensuring 
periodic review of the authority granted by Congress.
    However, sunset provisions may also create legal 
uncertainty for the President and military, particularly as the 
expiration date approaches without action to extend or 
reauthorize the AUMF.
    Sunset provisions could also be interpreted by both 
adversaries and coalition partners as a lack of resolve and 
could potentially embolden adversaries to wait this out.
    The where element is typically reflected as a geographic 
limitation. This provides certainty and transparency but may 
not afford the President and military commanders the 
flexibility necessary to pursue the enemy outside the named 
countries.
    Terrorist groups often seek safe haven in ungoverned and 
under governed spaces and publically announcing geographic 
limits in an AUMF may encourage adversaries to seek those 
countries out.
    Finally, the how element, which occasionally appears in 
some proposals, may be the most problematic, in my opinion. 
These are provisions that attempt to specifically define how 
the military will be used, a role normally reserved for the 
President and the military commanders.
    For example, some proposals seek to prohibit combat roles 
or boots on the ground, and one past proposal included a 
prohibition against the use of the military in enduring 
offensive ground combat operations.
    Provisions like these may significantly restrict the 
flexibility of the President and military commanders to adapt 
to a constantly changing dynamic enemy.
    I want to mention two final points. First, one should 
consider the AUMF in the broader context of other sources of 
law and policy. There are other sources of law and authority 
that act as restraints on the use of military force to include 
international law, domestic law, U.S. policy and the orders of 
the Commander in Chief and combatant commanders.
    Second, I want to assure the committee that before any 
military force is used, there is a robust review process in 
place.
    Up and down the military chain of command, senior 
commanders advised by trained and experienced staffs--including 
intelligence officers, operations officers, and judge 
advocates--review operations for compliance with the applicable 
law and policy, and for consistency with the orders of 
superiors in the chain of command.
    In counterterrorism operations, the AUMF is central to that 
robust review process. During my 30 years in the military it 
was my experience that commanders and their staffs worked very 
hard to ensure that all operations were conducted morally, 
legally, and ethically, and I have no doubt they will continue 
to do so in the future.
    I look forward to your questions. Thank you.
    [The prepared statement of General Gross follows:]
    
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    Chairman Royce. Yes, Mr. Olsen, please.

 STATEMENT OF THE HONORABLE MATTHEW G. OLSEN, LECTURER ON LAW, 
      HARVARD LAW SCHOOL (FORMER DIRECTOR OF THE NATIONAL 
                    COUNTERTERRORISM CENTER)

    Mr. Olsen. Thank you, Chairman Royce and Ranking Member 
Engel and members of the committee. I am honored to be here 
this morning to address this very important issue.
    I am also pleased to join with such distinguished 
witnesses, Judge Mukasey and General Gross, this morning.
    I approach these issues from the perspective of my two 
decades working as a government official tackling national 
security and intelligence and law enforcement matters under 
both Republican and Democratic administrations.
    From this vantage point, my bottom line up front is that 
the importance of updating and clarifying the 2001 AUMF is 
quite clear. By renewing this authority in light of the current 
terrorism landscape, Congress can provide its explicit 
authority for our counterterrorism efforts while at the same 
time exercising that responsible oversight that is consistent 
with Congress' role under the Constitution.
    So my views are based on my time in the intelligence 
community as well as my time at the Department of Justice.
    I most recently served as the director of the National 
Counterterrorism Center, which is an agency that provides 
intelligence analysis and the integration of intelligence about 
counterterrorism. I was responsible for briefing the President 
and the National Security Council as well as the strategic 
operational planning of counterterrorism activities.
    I also served in national security leadership roles at the 
Department of Justice, including having the privilege of 
working under Judge Mukasey for a period of time at the Justice 
Department.
    So let me begin briefly by emphasizing the dynamic and 
persistent threat that we face from terrorist groups. In short, 
the range of threats that we face from terrorists today is more 
diverse, more fragmented, and more geographically expansive 
than at any time in recent history.
    The so-called Islamic State, or ISIS, presents the most 
urgent threat to us. Its sanctuary in Syria and Iraq, while 
significantly diminished recently by the U.S.-led military 
coalition, has enabled that group to regroup and train and then 
execute external attacks, including more recently in Europe.
    The rise of ISIS more generally reflects the transformation 
of the jihadist threat over the past several years. ISIS and 
other groups have taken advantage of unrest in the region to 
expand their reach and establish safe havens. As a result the 
terrorism threat now comes from a decentralized array of 
networks and organizations. They include al-Qaeda, al-Qaeda's 
affiliates, and then a range of violent jihadist groups that 
share al-Qaeda's ideology.
    So it is against this backdrop of this very evolving and 
persistent terrorist threat that I think it is clear that the 
2001 AUMF is ill-suited to today's threats. It was enacted just 
days after 9/11. It provided the authority to use all necessary 
and appropriate force against those responsible for the 9/11 
attacks.
    Years later, the terrorist groups threatening the United 
States have changed but the 2001 AUMF remains the foundational 
authority for the use of force.
    The AUMF has now been invoked over 37 times in at least 14 
different nations and against more than half a dozen terrorist 
groups. It is unlikely, as you said, Ranking Member Engel, that 
Members of Congress who voted for the 2001 AUMF would have 
contemplated that the law would be used in this manner today.
    This lack of clarity about the scope and applicability of 
the 2001 AUMF in today's threat landscape has the potential to 
undermine our efforts to use force against terrorist groups 
that evolve or emerge and have emerged over the past 16 years.
    At the same time, it is my view that the AUMF's lack of 
time limits and reporting requirements and the open-ended 
definition of who is covered by the AUMF have undermined 
Congress' ability to conduct effective oversight of the use of 
military force.
    So in updating the AUMF to match the current threat 
environment, I would suggest, respectfully, that Congress 
consider several issues, and I will touch on these very 
briefly.
    First, Congress should start by specifying which groups are 
covered and for what purpose. The AUMF-based authorities are 
needed for armed conflicts against al-Qaeda, the Taliban, and 
ISIS but these authorities are not needed for groups that don't 
pose a similar threat. That is one.
    Two, Congress should set a time limit on the AUMF to ensure 
continued congressional approval, engagement, and oversight as 
these conflicts evolve.
    I believe that a sunset signals to our partners and our 
adversaries that the United States is committed to use the 
force required to combat the current threats we face even as we 
sustain the fight for as long as it takes.
    And then third, Congress should include reporting 
requirements for the executive branch. The regular and detailed 
reporting to Congress and therefore to the public about the war 
effort is vital to our democracy and it is necessary for 
Congress to fulfil its oversight obligations and thereby 
strengthens the legitimacy of the mission overall.
    In conclusion, Mr. Chairman, the terrorist threat facing 
the Nation is persistent, it is complex, and it is evolving. I 
believe that Congress should update the increasingly outdated 
2001 AUMF to explicitly provide a mandate for the use of force 
but subject to appropriate congressional oversight and 
constraints.
    I believe that fulfilling this responsibility will show our 
troops that Congress is behind them, it will assure our allies 
and partners that the United States is committed to human 
rights and the rule of law, and it will demonstrate to our 
enemies that we are committed to their defeat.
    I look forward to your questions.
    [The prepared statement of Mr. Olsen follows:]
    
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    Chairman Royce. Thank you, Mr. Olsen.
    I have reviewed with interest the bipartisan AUMF over in 
the Senate, the Flake and Kaine measure, and I want to ask you 
about that.
    Before I do, just a quick question on repeal and 
replacement. Do you believe that the 2001 AUMF should be 
repealed until a replacement is enacted? Because there is some 
debate on how that would create a problem for our national 
security.
    And so I just would ask you outright about just repealing 
it now and then waiting to see if we can reach accord on a 
replacement.
    Judge.
    Judge Mukasey. I think that would be enormously dangerous. 
It would set off a debate as to whether there was existing 
authority to conduct any of the operations we are conducting 
now and would signal to our adversaries a level of uncertainty 
that I think could invite additional attacks.
    So the short answer is, no, I don't think there ought to be 
a repeal until there is a consensus about what is going to 
replace it.
    Chairman Royce. General.
    General Gross. Yes. Sir, I agree that there should not be a 
repeal until there's a replacement in place, as the judge 
mentioned.
    But in addition, it would create an enormous amount of 
legal uncertainty with respect to our detention operations in 
Guantanamo Bay and other places.
    Chairman Royce. Mr. Olsen.
    Mr. Olsen. I share that view.
    Chairman Royce. All right.
    Now, let me go to the Flake-Kaine bill. This would 
authorize the President for 5 years to use force against 
designated groups in designated countries and it would allow 
the President to add new ``associated forces''--as we used to 
use the term--if there is a spinoff group, and new countries.
    But you would have to report them to Congress, which would 
then have the opportunity to disapprove of those expansions. 
That is the way the bill is set up.
    So I just ask each of you what you think of that construct. 
Would it fix some of the ambiguities that we face with the 2001 
AUMF by making sure that Congress receives clear, timely notice 
of the boundaries of the authority to use force?
    The other aspect of this is a little more complicated--
would such a delegation of war making decisions--allowing the 
President to add groups to the AUMF without congressional 
action; in other words, this associated forces if there's a 
spinoff terrorist group--would handling it in that way be 
constitutional.
    So Judge?
    Judge Mukasey. I think it would be constitutional. There is 
a lively debate as to whether the underlying problem here--
which is whether the war powers resolution back in 1973 was 
itself constitutional--and that has never been tested. Rather, 
it has been tested through a back and forth between Congress 
and the President, which is probably the wisest way to do it.
    I think that is a rational way to treat the issue because 
otherwise, you have the exercise that we have now, which is we 
conduct a kind of DNA test on the various groups to find out 
whether they do or don't carry the DNA of al-Qaeda and so far 
the judgment is that, for example, that ISIS does carry the DNA 
of al-Qaeda.
    That is a respectable point of view. On the other hand, you 
get further and further out on the branch it starts to look 
increasingly strained and----
    Chairman Royce. Let me get General Gross' view of it.
    General Gross. Yes, Mr. Chairman.
    One of the things I noticed that--first of all, I do think 
it does a good job of laying out the authorities against the 
current threat.
    It mentions al-Qaeda, the Taliban, ISIS. It has a provision 
for associated forces that is fairly clear and would help. It 
includes other groups that we currently have or have had 
operations against--al Nusra Front, Khorasan Group, AQAP, al-
Shabaab, and others that are listed in here.
    I can't speak to the constitutionality or not of the 
approval-disapproval procedures. I would refer those to a 
constitutional expert.
    I do think it might create a lack of flexibility for the 
commander, a lack of flexibility for the President. As 
intelligence changes and they try to move quickly against an 
ever-changing enemy, I think that could be problematic.
    Chairman Royce. Well, this is an attempt to reconcile that 
so that a quickly changing or morphing enemy--but I would 
assume your major point would be the time frame.
    General Gross. Yes, sir.
    Chairman Royce. And yet, we are in a bit of a conundrum 
here because in order to reach consensus with members of both 
sides of the aisle we are wrestling with this issue of a time 
frame. Otherwise, it puts us right back to where we are today.
    General Gross. Yes, sir.
    Chairman Royce. Let me go to Mr. Olsen for his----
    General Gross. Sir----
    Chairman Royce. Yes?
    General Gross [continuing]. If I could just make one----
    Chairman Royce. Yes.
    General Gross [continuing]. One other point. One of the 
things in here, the disapproval procedure for a group--as I 
read it, once you disapprove a group, you can't renominate that 
group and that seemed to me to be a----
    Chairman Royce. Okay.
    General Gross [continuing]. Unless I am misreading it----
    Chairman Royce. Okay. So that is a technical change that we 
could, in theory, address.
    General Gross. Yes, sir, because as intelligence changes--
--
    Chairman Royce. Yes. Right.
    General Gross [continuing]. A group that we nominate now--
--
    Chairman Royce. Right. Right.
    General Gross. Yes, sir.
    Chairman Royce. I understand. Good point.
    Mr. Olsen.
    Mr. Olsen. Yes, sir. I actually think it is a sensible and 
reasonable good faith bipartisan approach. It has many of the 
elements that I would think are appropriate, including a sunset 
provision and reporting requirements.
    I think that the approval--or disapproval--process, that 
seems to me to be an appropriate way to reconcile Congress' 
role relative to the executive branch's role.
    My suggestion would be that an approval process versus a 
disapproval process might be more appropriate because of the 
consequences or difficulty of Congress disapproving an action 
once it has already started to take place.
    In other words, facts on the ground may make it more 
difficult for Congress to disapprove the additional----
    Chairman Royce. But that would be the equivalent of having 
a whole new AUMF if you had an organization that changed its 
name.
    Mr. Olsen. Not necessarily changed its name. In other 
words, changing its name could still fall under the actual 
group itself.
    But when a new associated force would be added by the 
executive branch, they would have to obtain the approval of 
Congress. I think that would be an appropriate question.
    Chairman Royce. I see my time has expired.
    Mr. Engel. Thank you, panel.
    Mr. Engel. Thank you, Mr. Chairman. Mr. Mukasey, it seems 
at least--please correct me if I am wrong--that you seem to 
favor giving any administration a blank check in doing whatever 
they deem necessary to combat whatever they are combatting.
    I feel--and I know a number of my colleagues feel on both 
sides of the aisle--that there is an important congressional 
role to be played here--that it is not simply a matter of 
passing an AUMF 15 years ago and sort of relieving it as a 
catch-all for every administration, both parties, because they 
want maximum flexibility to do whatever they want.
    While I want to give the administration the tools to fight 
terrorism, I don't want to give them or anybody else a blank 
check and I don't care who is the President, Democrat or 
Republican.
    So could you please explain to me a little bit, or clarify 
to me a little bit that you don't favor a blank check? Because 
I think from your remarks it seems to indicate that you do.
    Judge Mukasey. Okay. I don't understand what in my remarks 
suggests that I favor a blank check since I favored----
    Mr. Engel. So clarify it for me, please.
    Judge Mukasey [continuing]. A sunset provision and I 
favored updating the list of who. So I am kind of puzzled.
    Mr. Engel. Well, don't be puzzled. Just tell me what your 
views are. I am happy to hear them.
    Judge Mukasey. My views are, as I expressed them today and 
as I expressed them in my written statement, and my comment at 
the beginning about World War II not having started with a 
deadline remains true.
    The fact is that I can't necessarily envision how all of 
this is going to end. On the other hand, there is nothing wrong 
with periodic reauthorizations, periodic reconsiderations of 
what it is we are doing. That is my view.
    Mr. Engel. Well, periodic reconsiderations are fine. But if 
they don't happen, then are you in favor of just allowing 
things to continue as we have for the past 16 years?
    You seem to feel very complacent about it and some of us 
are really angry that 16 years later we are still doing the 
same things.
    And by the way, I voted for that 2001 authorization.
    Judge Mukasey. Hardly complacent. I favored reconsidering 
the AUMF for years and the fact that Congress hasn't done it 
has nothing to do with my complacency.
    Chairman Royce. Okay.
    Let me ask Mr. Olsen--many Americans are concerned about 
another escalation in U.S. military involvement overseas. While 
certainly there are important threats both in ISIS and, I would 
say, even Assad, I am very wary about getting us into another 
ground war in Iraq or Syria.
    You provided a lot of detail in your written testimony 
about what an updated AUMF could include. Can you summarize how 
you think an AUMF would responsibly limit the authority that 
currently exists under the 2001 AUMF and provide greater 
congressional oversight and transparency at the same time?
    Mr. Olsen. Yes, certainly.
    In short, I think the key is that, first, that a new AUMF 
be tailored to the current threat environment. That, I think, 
is paramount. The threats have changed. The groups have 
changed.
    What the country faces in terms of terrorist threats have 
changed over the past 16 years. So updating the AUMF to reflect 
the current threat environment is actually an endorsement--a 
mandate for the current use of force in those appropriate 
circumstances.
    I think it is also important to say that there are many 
instances that don't require the authorization for use of 
military force. In other words, there are a number of tools 
that the government has, speaking from my time at the National 
Counterterrorism Center, to take on the threats that we face 
and they include law enforcement, intelligence, and diplomatic 
tools. There is an array of capabilities that the United States 
has that are not the use of force which typically should be the 
last resort.
    So updating the AUMF to reflect the current threats, that 
is number one. Then there are a number of other requirements 
that are suggested procedural elements that I think should be 
kindled.
    First, a sunset provision--I recommended a 3-year sunset to 
ensure that, given how dynamic the threat is, that AUMF stays 
up to date. Two, that there are reporting requirements--in 
other words, that the executive branch be required to brief 
Congress and to provide reporting on the nature of the threats 
and what groups it is considering as associated forces.
    I also think that it is appropriate to consider similar 
restrictions or processes to balance the flexibility and 
transparency that General Gross talked about, including 
provisions like requiring an approval or disapproval of new 
associated forces and limitations on particular types of 
activities, such as sustained ground forces and occupation of 
territory.
    I think that is another element that Congress should 
consider including in an AUMF.
    Mr. Engel. General Gross, first of all, you are much too 
young to have served in the military for 30 years. I don't 
believe it.
    Secondly, do you agree with Mr. Olsen?
    General Gross. I agree with some of what he said, sir.
    I mean, I think the critical thing for Congress to consider 
is that balance--that the more proscriptive or descriptive an 
AUMF is, the less flexibility a commander and the President 
has.
    But Congress plays an absolutely critical role here and I 
think it is important that Congress speaks as to our current 
conflicts and where we ought to go with that.
    Mr. Engel. Okay. Thank you very much.
    Mr. Smith. Thank you, Mr. Engel.
    Just let me ask a couple questions. Thank you for your very 
incisive testimony.
    Let me ask you, did the current AUMF restrict our efforts 
in any way over the last 16 years, and Mr. Olsen, you mentioned 
37 times it has been invoked, or was it just a matter of the 
lawyers coming up with a way of explaining what had to be done 
and how do they get from here to there?
    Secondly, how might terrorists read or misread a re-
examination of a new AUMF? We never want to unwittingly 
embolden the enemy.
    Could they misread this to think that a hard sunset is 
actually an exit strategy? Whether that is good or bad but it 
might embolden them.
    I have been around here long enough to know that nothing in 
Congress ever happens quickly and I am wondering--again, on 
sunsets we might not get to it, even if it is expedited on some 
way.
    Sequestration wasn't supposed to happen in terms of 
imposition of it and yet it did and we know it has hurt 
severely our military because of it. But it was supposed to be 
such an unthinkable outcome that it wouldn't happen.
    So, a 3-year sunset, 5-year sunset--House and Senate bills 
have that in it. A hard sunset, could that embolden the enemy 
unwittingly?
    And then, finally, what are the advantages, negative and 
positive consequences, to having a sunset date? I mean, could 
we just require more oversight to the existing AUMF from the 
administration or what does the sunset actually give us?
    Judge, if we can start with you.
    Judge Mukasey. Taking the questions in order, did the AUMF 
limit us? In one case, I think it actually did or at least 
potentially did.
    There was a man named Faisal Shahzad who was apprehended in 
New York, planning to blow up Times Square with an--with an 
improvised bomb.
    Turned out he was funded by Pakistani Taliban rather than 
the Afghan Taliban with which we were familiar, and on one view 
of the AUMF he and his activities and those who funded him were 
not covered by the AUMF.
    Now, he was treated as an ordinary criminal. What else was 
done, I don't know. But there was a lively argument as to 
whether or not the sources of that funding were covered by the 
existing AUMF when it shouldn't have. There shouldn't have been 
that kind of debate, number one.
    Secondly, could our enemies misread it? I think our enemies 
could misread it unless we make the message explicit that the 
sunset provision is only to re-examine the way we focus our 
activities and is not and should not be read as a limit on our 
commitment to oppose the forces that are fighting us.
    I am sure that with the clever people--clever draftsmen 
here we can come up with language that would convey that loud 
and clear.
    And finally, what are the advantages of a sunset--I think 
what they do is refocus and recommit people who were not around 
when the original AUMF passed who may feel that politically it 
is easier to just find fault than it is to get behind 
something.
    I am not suggesting anybody here is doing that but there is 
always that temptation and I think a requirement that people 
focus, that Members of Congress focus, provides that advantage.
    Thank you.
    General Gross. Yes, sir. As far as limitations, I mean, it 
is--I am thinking back. There had to have been over my 4 years 
times when there were individuals who were nominated for 
looking at military targeting operations that did not follow 
them--that we couldn't find the authority within the AUMF to go 
forward.
    If I could remember the details they would be classified. 
But I can't imagine I went 4 years. I just seem to recall there 
were times that individuals didn't fit under the AUMF.
    As far as the sunset, I agree with what the judge said. I 
think the positive consequences, if you will, of a sunset 
provision are requiring that re-examination.
    It sets a date certain when both sides will--both sides 
being both the President and the executive branch and the 
Congress--will know the deadline is coming up and begin to re-
examine that and look at that.
    I think the negative consequences--those that I pointed out 
in my testimony--it does create a lot of legal uncertainty.
    As you approach that deadline and as you get real close to 
that line, and particularly if you cross that line without a 
new authorization, there is a lot of uncertainty with whatever 
military operations are ongoing at that time and whatever 
detention operations are going on at that time.
    So that creates quite a bit of uncertainty there.
    Mr. Olsen. Yes, sir.
    I think, first, on the question of the AUMF and whether it 
has restricted the government's actions I think the answer is 
yes, if you look, for example, at detainees at Guantanamo.
    Judges have found in several cases that individuals at 
Guantanamo did not fit within the AUMF. I think an appropriate 
exercise of judicial oversight to look and see what the 
contours of the law are, who is part of al-Qaeda, who is an 
associated force, and making a determination, I agree with 
General Gross as well.
    Operational activities have looked at individuals and 
determined they did not fall within the AUMF; again, I think 
appropriately so.
    So I think that is, again, a reasonable exercise of 
executive and judicial branch discretion and judgment about who 
falls within. So that is one.
    Quickly, on the other two, the question of whether a sunset 
would embolden our enemies--I think exactly the opposite, to be 
quite honest.
    I think the reassertion of the authority to use military 
force on a timely basis really sends the message to our enemies 
that Congress, on behalf of the American people, stands behind 
our troops and is saying we are continuing to authorize force. 
I think it sends a message of commitment and dedication to the 
fight.
    And then, third, on the sunset, I think the pros and cons--
I think one thing to consider, I would respectfully suggest, is 
that this particular conflict, now the longest in U.S. history, 
is different from conventional traditional wars we have come to 
know in World War II and in the past, and therefore a sunset is 
appropriate, given that terrorism is going to be with us. That 
is a fact. So the use of a sunset is appropriate under those 
circumstances. Thank you.
    Mr. Smith. Thank you.
    Thank you, all three of you.
    Brad Sherman.
    Mr. Sherman. Our Founders wrestled with this issue over 200 
years ago. They knew that by vesting--they could have vested 
all power in the executive branch, thereby achieving security, 
secrecy, and flexibility.
    They chose not to. But the advocates of Presidential power 
keep pretending that they did and we are told that we would be 
best off if the executive branch could make all the decisions 
with secrecy and flexibility, and we should trust that because, 
well, our men and women in uniform and the Pentagon in general 
will be careful or that Congress can exercise oversight and 
consultation.
    That is not what the Constitution provides. It vests in 
Congress not only the power to declare war but control over the 
money that funds military operations. It also makes the 
President Commander in Chief. So how do we wrestle with those 
competing constitutional provisions?
    President Jefferson did and he is far more familiar with 
the Constitution than any of us. Americans had been attacked in 
the Mediterranean by the Bay of Tripoli. Not our allies 
attacked, not civilians of another country attacked--American 
ships were attacked and before sending our naval forces--
basically most of the military power of the United States to 
the Mediterranean, to the shores of Tripoli--he sought 
congressional authorization, which was provided on February 2, 
1802.
    The advocates of unlimited executive power without the need 
for congressional authorization--I am willing to do that as 
soon as we elect a President who is wiser than Jefferson.
    So in 1973, we passed the War Powers Resolution, known as 
the War Powers Act, that allows the President to do pretty much 
what he or she wants for 60 to 90 days but does provide real 
restrictions.
    Since then, every President has said that they don't 
recognize the binding power of the AUMF but they will often act 
consistent with it.
    The most recent clear violation, because our attacks on 
ISIS may be authorized by the 2001 AUMF but was not authorized 
by an AUMF, was our many months of operations against Qaddafi. 
Qaddafi wasn't associated with Saddam Hussein or al-Qaeda and 
we were told at that time that as a substitute for 
congressional authorization maybe there would be a U.N. 
resolution or NATO or coalition of the willing.
    The fact is that at least in that circumstance the 
President, and others have as well, simply violated the War 
Powers Act.
    What we did, though, in 2011, at least in the House of 
Representatives, is provide a way to enforce the War Powers 
Act, because although the War Powers Act is argued by some to 
violate the constitutional right to be Commander in Chief, no 
one doubts Congress' right to control what happens to 
appropriated funds.
    And so in 2011 I proposed an amendment--failed the first 
time, finally got it passed--to say that no funds shall be 
spent in contravention of the War Powers Act and that has been 
part of the base bill for defense appropriations ever since, as 
it will be this year.
    We don't need to pass a new AUMF to show the world we 
support our troops. We provide funds for them and support them 
in so many other ways. But repeal now replace later doesn't 
work for health care. I don't know if it will work here but I 
know I am very much opposed to it in health care.
    And while I think the general has argued that specificity 
is the opposite of flexibility, I would point out that vague 
authorization--a blank check, if you will--is the opposite of 
democracy.
    My question for all three panellists is, would you advise a 
President that the War Powers Act is not constitutionally 
binding on the President or is it the law of the land that the 
President must adhere to? Can I get a one-word answer from 
each? Mr. Olsen.
    Mr. Olsen. My experience, Mr. Sherman, is similar to yours, 
which is that, at least with the Obama administration where I 
was most familiar, that----
    Mr. Sherman. I need a one-word answer. I've got limited 
time. I will go on to the general.
    Mr. Olsen [continuing]. That it was considered to be 
something that the administration complied with.
    Mr. Sherman. Something they will comply with because it is 
convenient or something that is legally binding?
    General, why don't you answer?
    General Gross. Sir, I am not a constitutional expert.
    Mr. Sherman. Okay. I will go to the judge.
    Judge Mukasey. I give the same answer that every Attorney 
General since Jimmy Carter's Attorney General gave, which is 
yes.
    Mr. Sherman. Yes, it is binding?
    Judge Mukasey. No. Yes, it is unconstitutional.
    Mr. Sherman. Yes, it is--okay. I will follow that up with 
one quick question.
    Can Congress legally provide that moneys provided by the 
defense approps bill cannot be spent in contravention of that 
act?
    Judge Mukasey. Sure.
    Mr. Sherman. So that is the way to enforce it.
    I will yield back.
    Judge Mukasey. That is a way.
    Mr. Smith. Chair recognizes the gentleman from California, 
Dana Rohrabacher.
    Mr. Rohrabacher. Well, first and foremost, I would like to 
thank our chairman, Mr. Royce, and Mr. Engel for calling this 
hearing. I think this is the type of hearing we need to have 
where you have various points of view being expressed and on a 
very important issue for us to understand.
    So and I will have to say that my depth of knowledge has 
been increased due to your testimony today and I thank the 
witnesses for that.
    Let me just note some of the points that have been made. 
But first, Mr. Sherman mentioned Thomas Jefferson's sending 
this issue to Congress.
    Let us note that Thomas Jefferson also, when sending this 
issue of how to deal with the Barbary Pirates in Tripoli, he 
received a certain, how do you say, instructions from Congress. 
Yes, he did and he disobeyed them.
    And in fact, I am sure our witnesses know about the William 
Eaton effort that overthrew the Government of Tripoli, which 
was done in direct contradiction to what Congress had 
instructed the President to do.
    So with that note, there are various interpretations about 
various things that were going on during that time period.
    We do know that Congress has--as Mr. Sherman noted--that we 
do have the authority here and we need to exercise that. The 
executive branch, obviously, has the major portion of 
authority. I do not believe that--and one of the points made 
today was that when you limit a commitment to a goal, that is a 
bad thing.
    We should not be limiting--if we have a goal and it is 
verified by Congress, we shouldn't put limits on a commitment 
to the goal but instead the AUMF is actually a commitment to 
get the job done in a timely manner and I think that that is a 
very legitimate analysis. We aren't limiting the commitment.
    We are just telling people if you got a commitment to 
military action, you better get it done and that this is not 
just going to linger forever.
    The sunset provisions, which were the majority of 
discussion today, are vital for us to understand. I would have 
to say that authorizing--telling someone that you only have 
between now and then before you have to get a reauthorization 
in no way, I believe, weakens our position.
    The fact is that if indeed the American people are 
supportive of a military action and the Congress knows that--
and the military and our executive branch knows they are going 
to have to come before the government again to have an 
approval, that if the American people are not supportive of it, 
maybe that sunset should be able to function and we should 
maybe walk away.
    Maybe we should have walked away from Vietnam 4 years into 
the action rather than let it linger 10 years. And I left 
Vietnam in 1967 and I was just there a couple months--I was not 
in the military--I was doing some things up in the Central 
Highlands and I knew we were going to lose then. I knew--I 
walked away. I said, we are going to lose this war, and there 
were 30,000 casualties after that. So it would have been a good 
thing for us to have to re-evaluate after 4 or 5 years that 
whole Gulf of Tonkin resolution.
    So I appreciate, again, you giving us, really, food for 
thought today. The one example, the Guantanamo example--what 
was your point in that in terms of saying that when you had 
some authorization of force that it didn't include certain 
prisoners in Guantanamo that we shouldn't have had then? What 
was the point of that whole example?
    Mr. Olsen. Yes, sir. My comment was with respect to the 
application of the existing AUMF to the current detainees at 
Guantanamo and the fact that the executive branch and the 
judicial branch have determined on a number of occasions that 
individuals at Guantanamo did not fall within the purview of 
the AUMF. I suggest that was an appropriate exercise of that 
judgment.
    But the other issue is the lack of certainty around the 
existing AUMF as it applies to ISIS and how that might affect 
detention operations.
    Mr. Rohrabacher. Then could that be interpreted as, again, 
how do you say, fine tuning? Are we going to micro manage?
    When we permit something to happen that we should be micro 
managing it in that way, again, determine what enemies are 
going to be going to Guantanamo and what enemies are not?
    Mr. Olsen. Well, respectfully, I wouldn't suggest that is 
micro managing for Congress.
    Congress would name the group--the organization that is 
subject to the AUMF and then it would be up to individual cases 
based on the facts--the executive branch, with oversight from 
the judicial branch--to determine who falls within that 
definition.
    Mr. Smith. Time of the gentleman----
    Mr. Rohrabacher. Thank you very much.
    Just for the record, I believe in sunsets but I also 
believe that once you have provided an authorization of force 
that the executive branch should be able to do their job and do 
it right.
    Thank you.
    Mr. Smith. Mr. Deutch.
    Mr. Deutch. Thank you, Mr. Chairman. I would like to thank 
you and the ranking member for holding today's hearing. It is 
one that this committee should be having and, frankly, I think 
we would all agree it is one that we should have had many times 
over the recent years.
    I know, Mr. Chairman, that both you and the ranking member 
believe strongly in the jurisdictional prerogative of this 
committee to lead on the authorization of the use of military 
force.
    So I hope that today is only the start of what will become 
a serious conversation about the situation we find ourselves in 
where we continue to rely on an AUMF post-911 in order to guide 
every military action that we take around the world.
    For more than 4 years now, we have not been having a 
serious conversation at all in this Congress about this. 
Discussion about a new AUMF does bubble up. It comes up when we 
are reacting to a new horror in the Syrian conflict, whether it 
was after the 2013 chemical weapon attack or the latest 
decision by the administration to strike Assad's air base in 
April.
    In 2015, the Obama administration sent a proposed AUMF to 
Congress. We did not consider it. We did not consider an 
alternative. It is a hard conversation to have and we passed.
    I know it is hard. There are divisions on both sides of the 
aisle. But not having a conversation at all, a real robust 
debate in the United States Congress, just because it is hard 
is an abdication of our responsibilities to represent our 
constituents.
    It is clear that relying on the 2001 AUMF for the new fight 
against terror is no longer the best option to protect this 
country and our men and women in uniform.
    It is even more clear that the AUMF for the Iraq war has to 
be repealed. So let us at least start where we have some 
agreement.
    Our inaction only enables this administration--or any 
administration, frankly--to continue operating militarily with 
a free pass from the American people--a free pass from the 
United States Congress.
    I am deeply concerned about what happens when Congress 
continually refuses to act and that is what I would like to ask 
about.
    Mr. Olsen, I will start with you. Every time Congress 
consents to the President using military force without prior 
congressional approval, whether it is in Libya or in Syria, the 
President seems to rely on Congress' failure to act as evidence 
in support of even stronger unilateral executive war powers.
    Does the lack of congressional action on authorizing force 
increase the likelihood that this President and future 
Presidents will engage U.S. troops in more conflicts without 
congressional consent?
    Mr. Olsen. Well, I think the answer to that question is 
yes. In other words, the consistent failure for the Congress to 
act does tend to erode Congress' appropriate role under the 
Constitution over time relative to the executive branch in, 
one, declaring war but also exercising appropriate oversight 
over the executive branch.
    I think there is that potential for an erosion of 
congressional authority in this particular space.
    Mr. Deutch. General Gross.
    General Gross. Sir, at the level that I operated for the 
things that I did that conversation didn't go on.
    The conversation that went on as a practitioner was here's 
the proposed operation, here's the proposed enemy or person or 
group or target or objective, and is there legal authority 
right now under the existing framework to conduct that military 
operation? And that is the conversation that I participated in.
    Mr. Deutch. Judge Mukasey.
    Judge Mukasey. I can answer it only from a legal 
perspective. A congressional failure to act is considered 
probably the weakest kind of legislative evidence because it 
can show a whole lot of things other than endorsement.
    That said, I certainly agree that there ought to be a 
reconsideration and a reauthorization.
    Mr. Deutch. General Gross, just a question about the Syrian 
conflict specifically. On the one hand, the question is how do 
we ensure that a new AUMF both gives us the flexibility we need 
to go after various actors and at the same time or can it at 
the same time help reduce the risk of unintended military 
conflict with other actors in Syria?
    General Gross. Well, sir, I think that is a good question 
and I think the Flake-Kaine amendment does that--the proposal.
    You define the groups that you are going after. You can, 
obviously, define geographic limits but that wouldn't, in this 
case, do that, and you define other parameters, as Congress 
would deem appropriate, and that provides the framework within 
where we have to operate.
    And so if a certain force in a certain country doesn't fit 
within the definition of the named groups or fit within the 
definition of an associated force, then the AUMF can't be the 
source of domestic law for that particular operation.
    Mr. Deutch. And if the AUMF can't be the source of domestic 
law, then you are violating--it would be a violation of the 
AUMF.
    General Gross. Not necessarily because the President can 
and often does fall back on their Article 2 authority which 
then kicks in the War Powers Resolution and the 60-day. There 
is still authority for the President under Article 2 and 
Presidents from both parties have relied on that throughout 
history as the authority.
    Mr. Deutch. That wouldn't have been authorized before.
    Thank you. Thank you to our witnesses and thank you, Mr. 
Chairman.
    Mr. Smith. Mr. Wilson.
    Mr. Wilson. Thank you, Mr. Chairman. Thank each of you for 
being here today on this very important issue.
    As a member of this committee and the House Armed Services 
Committee, and as the grateful dead said, four sons serve in 
Iraq, Egypt, and Afghanistan in the global war on terrorism, I 
particularly appreciate the efforts that you are expressing 
today. I also agree with the comments of Chairman Ed Royce that 
any effort to repeal the 2001 authorization for use of military 
force without having more effective replacement that does not 
place arbitrary restrictions on the present military 
commanders.
    This is so important because if we play around with the 
wording we should always be mindful that we are dealing with 
illegal enemy combatants who are not in uniform who will be 
placing American families at risk.
    We have a circumstance of where ever changing--their names 
are changing, the people are changing, the places are changing. 
Over and over again we see them using civilians as human 
shields, targeting civilians, as we saw again yesterday--
incredibly enough, mass murder again in Kabul. Over and over we 
see this.
    For each of you, we have had administrations that have 
claimed the AUMF is not strictly necessary--a new one. They 
claim that they possess ample legal authority to prosecute the 
war against al-Qaeda and associated forces such as ISIS.
    Just last week, General Joseph Dunford, chairman of the 
Joint Chiefs of Staff, stated, ``We are now relying on the 2001 
authorization for use of military force. What I have said is we 
have all the legal authority that we need now to prosecute al-
Qaeda, ISIS, and other affiliated groups.''
    For each of you, do you agree with the assessment that the 
2001 AUMF provides, in the words of General Dunford, all the 
legal authority?
    Beginning with Judge Mukasey.
    Judge Mukasey. If we are talking legal authority and we are 
talking ISIS, I believe the answer is yes. But that doesn't 
mean that we ought not to reauthorize and ought not to pass a 
new AUMF.
    If the question is whether the military efforts now in the 
field are backed by legal authority, I believe they are.
    Mr. Wilson. Thank you.
    And General.
    General Gross. I would agree with that answer, sir, in the 
sense that it is adequate for ISIS, al-Qaeda, Taliban, and 
associated forces.
    Mr. Olsen. I agree with both of those comments that the 
current interpretation is appropriate and that there is 
adequate authority.
    I think it is important, though, to emphasize this notion 
that it is simply adequate but I think there is a consensus 
among all three of us that it is appropriate to update the AUMF 
for a variety of reasons, including the dynamic threat and how 
it has changed, and to really clarify how it applies to ISIS, 
which remains a controversial interpretation to this day.
    Mr. Wilson. Well, thank you to each of you. But the key 
thing is that we are operating under legal authority properly 
for our military.
    And General Mukasey, thank you for identifying the Taliban 
distinctions--Afghan versus Pakistani. The 2001 AUMF--and this 
is a question for you--has been used against al-Qaeda, the 
Taliban-associated forces, groups that have joined al-Qaeda or 
the Taliban in their fight against the United States.
    So far, they have included al-Qaeda affiliates in the 
Arabian Peninsula, Libya, and Syria, al-Shabaab and ISIS from 
North Africa to the Philippines.
    Are there terrorist groups that pose a serious threat to 
the United States that do not have enough of an al-Qaeda or 
Taliban nexus to qualify as associated forces under the 2001 
AUMF? If so, is the threat urgent enough that they be included 
in a new AUMF?
    Judge Mukasey. It may be that Hezbollah, potentially, poses 
that threat. Whether they can be traced to organizations that 
were active against us at the time the AUMF was passed, I 
seriously doubt.
    There are separate entities that ought to be perhaps the 
subject of a separate AUMF like the Somali pirates and so on, 
but that is something beyond, probably, this hearing.
    Mr. Wilson. And I appreciate your raising that--Hamas, 
Hezbollah, the pirates. It is incredible what the American 
people face and our ally, Israel, simultaneously.
    And, General Gross, I am really going to conclude by 
thanking you for your service. I served, myself, 31 years Army 
Guard Reserves.
    But as a fellow JAG officer, I am particularly grateful for 
your service and for all three of you.
    So thank you and best wishes on your service.
    Mr. Smith. Mr. Keating.
    Mr. Keating. Thank you, Mr. Chairman. I want to thank the 
chairman and the ranking member for having this important 
hearing and taking a leadership role on really an important 
issue that Congress has gone silent on for many years now.
    I want to also thank our witnesses and thank you for your 
service to this country and thank you for being here to share 
your thoughts on this.
    Our success and what we have had as a game plan has 
depended so much, and I think in the future will depend on so 
much of our ability to deal as a coalition with other 
countries.
    To me, going it alone is perilous in today's world. And I 
just want to ask, particularly Mr. Olsen at first, we have on 
one hand, counterterrorism to balance, but we have on the other 
a coalition to maintain dealing with this--a coalition that has 
been with us during such difficult times.
    Now, in the absence of having a new AUMF and making those 
lines clearer, given some of the dialogue that has occurred 
with our allies and with our NATO allies, the failure to do 
that, going forward, what could you see as a problem in keeping 
our coalition together if things aren't defined? Or do you 
think we are better off keeping the flexibility that appears to 
be there now?
    Mr. Olsen. So, first of all, let me agree wholeheartedly 
with your observation about the importance of the United States 
taking on terrorist groups as part of a broader coalition. I 
think we have seen operationally over time that there is really 
no question about our effectives when we work with our allies, 
whether those are our European allies or our partners in the 
region and that has been proven over and over again.
    Mr. Keating. I would say yes, that--to interrupt you with 
that--our long-term success it is essential because we can win 
militarily but holding that area, too.
    So it is not just our allies that are participating. It is 
the world community that we are seeing now where the people 
have a stake in the action on the ground and will hold what we 
are able to accomplish militarily against ISIS or other groups.
    Mr. Olsen. Absolutely right. I totally agree with that, and 
I do think--bringing it back to this discussion--that including 
in a new AUMF both some requirements for a sunset and reporting 
requirements, they reassure our allies about how we view this 
conflict, that it is not never ending, that there is the 
support of the American people as voiced through Congress as 
well as a clear commitment to the application of international 
law, which is an important element to our allies.
    I believe in developing and building a coalition that will 
be sustained not just in the short term through military 
conflict, as you point out, but over the long haul, which is 
required, I think, for our success.
    Mr. Keating. Yes.
    General Gross, too, if you could comment on the other 
aspect of having countries with a stake in the action, being 
able to hold that territory when we see terrorist groups like 
ISIS moving forward. It is important for our coalition to be 
maintained but it is also important to have nations on the 
ground willing to hold that territory.
    General Gross. No, sir. I couldn't agree more. I mean, 
fighting in a coalition really is virtually essential today to 
have the capabilities, the international credibility, the 
support.
    Different countries bring different things to the fight and 
I think we are stronger for it when we fight as a coalition 
than when we try to go it alone. And so I agree completely.
    My experience, talking to allies--and we often had 
discussions on legal authorities--is they tended to focus more 
on whether or not there was an international legal basis for a 
particular military operation because if we didn't have one 
they didn't have one.
    And so that tended to be the focus. They were concerned 
with domestic legal authority, particularly when it came to 
detention operations because often some countries might not 
have a domestic legal basis for detaining someone in a 
particular theater or operation and therefore they couldn't and 
they might want to transfer detainees to a country that did and 
so they would be concerned that the country receiving detainees 
had a domestic legal authority for that.
    So that tended to be when that conversation came up. But 
for the most part, the international legal basis was the focus 
of discussions country to country when you talked about legal 
authority.
    Mr. Keating. Do you see the ability right now, because a 
lot of this is about timing--do you see the ability right--or, 
really, do you see any warning signs that our failure to act as 
a Congress could endanger future coalitions, going forward?
    General Gross. I don't--again, I think if they felt like we 
had some authority internationally--under international law and 
domestic law to continue operations that would be their focus.
    It is just hard for me to say how much they pay attention 
to whether or not Congress is acting. I just can't recall ever 
having those discussions.
    Mr. Keating. Great. I yield back.
    Mr. Duncan. I thank the gentleman.
    The Chair will now recognize himself for 5 minutes.
    Drone strikes--we had this debate back when the Libya 
involvement was going on and whether the AUMF authorized drones 
strikes in Libya.
    Can you cover--and I will ask Mr. Olsen first--drone 
strikes and how they fit in this AUMF wherever they may occur, 
whether it is Middle East, North Africa, Africa proper. How do 
you feel about that?
    Mr. Olsen. Well, certainly, from a legal perspective and 
from a domestic law perspective, when the government considered 
carrying out a lethal strike, whether by drone or otherwise--
one of the critical determinations or considerations was 
whether the target fell within the authorization for use of 
military force.
    So the application of the AUMF to a particular proposed 
individual was certainly part of that discussion.
    I do think, from my own experience in the last 
administration where there were heightened standards in place 
for carrying out drone strikes--again, these are typically--I 
am thinking of strikes off of the hot battlefield in places 
like Yemen or Somalia, not Afghanistan, for example--that the 
heightened standard of requiring a near certainty of no 
civilians being killed was an appropriate way to, as a policy 
matter, impose a standard that, again, we are in a new era of 
warfare where we are taking legal action outside of a hot 
battlefield. That seemed to me to be both appropriate and 
actually operationally workable, in my experience under the 
last administration.
    Mr. Duncan. Are we seeking authorization of using airspace 
where drones are flown?
    Mr. Olsen. I don't think so. That is more a question 
probably better posed to somebody who is actively operating in 
the military. But my expectation would be no.
    Mr. Duncan. Right. So I remember at Benghazi the argument 
was made that we didn't have over flight rules to send in help 
for the guys in Benghazi but yet there was a drone flying 
overhead providing live real-time feed.
    So I am in conflict with whether we had over flight 
permission or not in that instance. Do you care to comment?
    Mr. Olsen. Well, the only thing I would say, when I think 
of Benghazi, in a successful military operation I think of the 
apprehension of Abu Khattala in his home on the Mediterranean 
in Benghazi and who is now here in the United States facing 
trial for his role in the Benghazi attacks. That was certainly 
a very successful military operation which was carried out in 
combination with our law enforcement authorities.
    Mr. Duncan. Right. So thank you for that.
    I want to shift gears a little bit and talk about the 
adequacy of current legal authority in the AUMF, and although 
most would agree that the new and updated AUMF would be a good 
thing, especially because of the signal it would send to our 
troops overseas.
    I wonder about the legal authority, and General Dunford 
recently said that, let me see, I don't have the date for 
that--``We were relying on the 2001 AUMF. What I have said is 
that we have all the legal authority that we need right now to 
prosecute al-Qaeda, ISIS, and other affiliated groups even 
though they are not ISIS, as mentioned.''
    Do you agree with the assessment of both the Obama and 
Trump administrations that the 2001 AUMF provides, in the words 
of General Dunford last month, ``all legal authority that we 
need right now to prosecute al-Qaeda, ISIS, and other 
affiliated groups?''
    General.
    General Gross. Sir, I like to say adequate legal authority 
but that is probably mincing words. I mean, it provides legal 
authority.
    As a lawyer, when I advise a commander you talk about the 
amount of legal risk and the amount of legal clarity, and in a 
case where a law is very clear and it is bright line, you can 
say that absolutely this law applies.
    If the speed limit is 25 miles an hour, I can say that 
you're going 25 absolutely you are complying with the law. On 
the other hand, if the law says you must drive a reasonable 
speed for the conditions and if someone says, I am driving 25, 
does that comply with the law? Maybe.
    And then you identify the legal risk and you say the 
conditions are this and that. And so in this case, I think we 
can say that the 2001 AUMF is adequate to provide legal 
authority for going against ISIS on its own terms. It doesn't 
say ISIS. It says al-Qaeda, Taliban, and organizations, et 
cetera, and you have that language.
    And so as we made the determination that ISIS was a follow-
on successor, really the same organization as al-Qaeda in Iraq 
and had never cut that tie, then we felt like that was adequate 
to provide the----
    Mr. Duncan. ISIS and al-Qaeda would argue with you over 
that but----
    General Gross. Well, and again, that is where the legal 
risk comes in. You could imagine reasonable minds disagreeing 
with that and saying----
    Mr. Duncan. So we have advisors and maybe limited combat 
troops in Syria right now, or western Iraq and possibly Syria. 
I am extrapolating from what I read in the news. Does the AUMF 
cover countries like Syria?
    General Gross. It doesn't mention countries, sir.
    Mr. Duncan. Right.
    General Gross. It mentions, you know, who----
    Mr. Duncan. Groups.
    General Gross [continuing]. Enemy groups.
    Mr. Duncan. Right.
    General Gross. And so if you were conducting operations----
    Mr. Duncan. Do you think that is wherever they crop up?
    General Gross. Well, there is no geographic limitations in 
the 2001 AUMF. There are other sources of international law and 
domestic law that provide constraints and restraints on issues 
like violating another country's sovereignty and things like 
that. So you----
    Mr. Duncan. So I am going to use a total hypothetical 
here--and the press is covering this. This is totally 
hypothetical.
    But let us just say that Abu Sayyaf terrorists evolved into 
an ISIS organization in the Philippines. Does the AUMF 
authorize the United States to go there to fight that ISIS-
affiliated group?
    General Gross. I don't know, and that would be one where 
you would have to examine the intelligence, examine all the 
facts that you have at hand.
    You would have to decide or make a legal determination if 
they can be considered an associated force of al-Qaeda or the 
Taliban.
    What we don't know--one of the uncertainties is, we have 
always determined as a legal matter that an associated force of 
al-Qaeda or a group that is part of al-Qaeda would fall under 
the AUMF.
    I don't know that we have ever looked at an associated 
force of ISIS, and whether or not they have done that since I 
left I don't know and I can't recall whether we looked at that.
    And so now you are starting to get more and more attenuated 
and so the legal risk raises that you may say, yes, this falls 
within the AUMF but reasonable minds can disagree and a court 
or someone else may say no, that wasn't what we intended with 
that law. My----
    Mr. Duncan. So just--I agree--so just a last question. My 
time has expired. The Houthis in Yemen--are they an ISIS-
affiliated group? We have had military strikes there. I am just 
asking.
    General Gross. I don't know enough of the current 
intelligence and facts about that.
    Mr. Duncan. Just trying to get my head wrapped around what 
this AUMF covers, what it may not cover, and going forward what 
we might need to include for potential future threats.
    General Gross. So the current AUMF as it has been 
interpreted by the administrations, you would have to look at 
whether or not they are an associated force--and we have a 
definition that we have used for associated force--must be both 
an organized armed group that has entered the fight alongside 
al-Qaeda and a co-belligerent with al-Qaeda in hostilities 
against the United States or its coalition partners.
    That is the definition of associated force that the 
previous administration adopted and used and that is what I 
used as my working definition for legal analysis.
    I don't know what the current administration or the current 
lawyer on the joint staff is using. But I can't imagine that 
has changed significantly.
    Obviously, Senator Flake and Kaine have put their own 
definition in their proposal, which defines associated force, 
and if enacted that would become the definition you would use 
to analyse that.
    Mr. Duncan. I thank you for that.
    And I will now go to Mr. Bera.
    Mr. Bera. Thank you, Mr. Chair.
    You know, our founders in the design of our country really 
laid out a brilliant design. But part of that brilliance was a 
separation of powers giving, very clearly, Congress in Article 
1 the ability to declare war; giving the Commander in Chief, 
our President, the ability to execute on those plans. Doesn't 
seem ambiguous.
    But as we are having conversations here, the current AUMF 
is rife with ambiguity in there, and I think it is consistent. 
Just listening to each of the witnesses, I think each of you is 
consistent that it would be appropriate to update the AUMF. Is 
that correct? And I think just listening to my colleagues on 
both sides of the aisle we also think it would be appropriate 
to update the AUMF.
    Now, there is recognition it is not going to be easy. It is 
going to require vigorous debate. It is going to require, you 
know, talking to our military commanders, talking to the 
executive branch.
    But we owe it to our men and women who are making that 
ultimate sacrifice to their families to clear up this 
ambiguity--to give them a clear sense that the American people 
are with them--to give them a clear sense of what their mission 
is. That is our job as Members of Congress.
    I would argue we are not doing our job by not having the 
courage to engage in what are not easy conversations. But that 
is what we ought to do.
    I guess I will ask you, General Gross. By having that 
debate, by giving clear definitions, removing some of the 
ambiguity, that sends a message to our troops, does it not?
    General Gross. Yes, sir.
    Mr. Bera. So we ought to and, again, we shouldn't do the 
easy things. The American people expect us as their 
representatives to engage in the necessary things and it is 
pretty clear from the discussion and dialogue that updating 
this AUMF that is 16 years old is absolutely necessary, 
particularly given that the majority of us, as Members of 
Congress, weren't here when this AUMF was authorized.
    So if we are actually going to do it, many of you have 
referred to the Flake-Kaine amendment and framework as a 
potential starting point.
    I guess starting with you, Mr. Olsen, would that be a 
reasonable starting point if we were to debate this?
    Mr. Olsen. I do think that is a reasonable starting point. 
If I could just go back to your introductory comments about the 
current ambiguity.
    I think it is worth pointing that, again, the AUMF that we 
are operating under now actually mentions no groups. It doesn't 
mention al-Qaeda. It doesn't mention the Taliban.
    It talks about those organizations and individuals 
responsible for the attacks of 9/11. So it is tied to a 
particular heinous act of terrorism which occurred 16 years 
ago.
    So as you get to groups like Abu Sayyaf or the Houthis, 
whether they are tied to other groups, you get into this area 
of extreme ambiguity and that is why I think you hearing from 
this panel a consensus view, as you expressed, of support for 
updating the AUMF. So yes, and I do think that the Kaine-Flake 
bill is a sensible starting point for that discussion.
    Mr. Bera. General Gross.
    General Gross. Yes, sir. I think it is a good starting 
point and I know in particular Senator Kaine has been a deep 
thinker on this issue and I can remember talking to his staff 
years ago about this. So he has given it a lot of thought.
    Mr. Bera. Judge Mukasey.
    Judge Mukasey. I agree that it is certainly a sensible 
starting point as long as we remember that it is a starting 
point and that it is going to need the debate that you referred 
to.
    But certainly it is a good place to start and some of the 
comments that were made today about, for example, adding groups 
on either an approval or disapproval basis is something that 
ought to be considered.
    Mr. Bera. So, again, we have a starting point, and I am not 
suggesting that it is the end point. It is the starting point 
of a debate that we ought to have, that the American people 
expect us to have and, most importantly, that we owe to our 
troops--our men and women and their families.
    There is no greater responsibility that we have when we 
send someone's son or daughter, mother or father, husband or 
wife, into harm's way and, again, I feel that this body owes it 
to them to have that debate.
    Also, when we talk about a sunset provision, from my 
perspective that is not an expiration date. That is a forcing 
function to have this body evaluate where we are, update and 
refresh and perhaps end an AUMF but also perhaps reinforcing an 
AUMF.
    And is that the right interpretation when we are talking 
about sunset provisions?
    General Gross. Sir, except that--I mean, I think by its own 
terms, at least for the Flake-Kaine bill, it expires at the end 
of that 5-year period if Congress hasn't acted.
    And so I think that risk of uncertainty in particular with, 
for example, detainees who are currently held, that the 
authority could lapse to hold them and therefore you have to 
look at that.
    Ongoing operations that were being conducted under that 
AUMF arguably would expire and then, you know, that would set 
off a debate.
    So, if there were to be a sunset provision, and I am not 
taking a position one way or the other. I am just pointing out 
different pros and cons, if you will. There might be ways to 
design language such that the AUMF expires but there's a tail 
of authority that survives that would allow detention for a 
certain period of time or ongoing operations or et cetera.
    Now, I don't know how to write that but I know you all 
have----
    Mr. Bera. But, again, that is our job, right?
    General Gross. Yes, sir. Exactly.
    Mr. Bera. Thank you. I will yield back.
    Mr. Duncan. Gentleman's time is expired.
    The Chair will now go to Mr. Perry from Pennsylvania for 5 
minutes.
    Mr. Perry. Thanks, Mr. Chairman. Thanks, gentlemen. General 
Gross, thanks for your time and uniform service.
    Gentlemen, you all referenced the Flake-Kaine legislation, 
and I should be familiar but I am not. But can you tell me if 
it identifies the enemy or an enemy by name?
    General Gross. Yes, sir, it does.
    Mr. Olsen. It does. I can tell you, it identifies ISIS, al-
Qaeda, Taliban, and their associated persons or forces.
    Mr. Perry. All right. So it seems to me, and I have had an 
AUMF that I have offered in the past and I have one sitting 
right in front of me that I have offered again this session, 
which seems somewhat analogous to the ones that Mr. Flake and 
Mr. Kaine have authored, or offered.
    But I feel like we are lacking in identifying correctly the 
enemy and that has been my frustration because the enemy keeps 
changing, whether its name, whether its affiliations.
    We are attacking ISIS now under the provisions of some 
associate with al-Qaeda when they both eschew one another at 
least in name even though they have the same eventual ultimate 
goal.
    And then you have the myriad list of different actors, 
which ebbs and flows and changes on a regular basis. Mine 
determines that the enemy and the use of force would be against 
Islamist extremism, which seems to be whether you determine 
that is fundamentalism, the strict following of the Koran by 
generally Sunni groups as opposed to Shi'a or something else. 
It seems to me that that can be described that way and cover 
all these groups, and I go on further.
    I include, of course, al-Qaeda and ISIS, AQAP, AQIM, al-
Shabaab, Boko Haram, al-Nusra, Haqqani, the Taliban, Houthis, 
Khorasan, Hezbollah, and then I put substantial supporters, 
associated forces, or closely-related successor entities.
    Now, I, too, agree, obviously, since I have authored this 
that we need to refresh this and we need the American people's 
and Congress' involvement in it.
    I would take some issue with the time frame. As a person 
who has been privileged to serve in uniform as well, I just see 
that as an opportunity for opposing forces to use that to be 
victorious when we cannot.
    And I don't know how you have a time frame imposed and then 
say, well, we are going to refresh this and we are going to get 
the will of the American people but then we are going to 
continue operations while that is occurring. I don't know how 
you skin that cat, quite honestly.
    As a former military commander, you have to have the 
latitude to fight the battle and if there is going to be a time 
frame, a limitation on that--at the same time, I don't think 
this should be forever but that is not our choice.
    We have an enemy and they get a vote, as we all know, 
right. We always say no plan survives first contact, right. The 
enemy gets a vote.
    And so let me ask a very pointed question because I am 
looking--General Gross, you would name ISIS. Mr. Mukasey, you 
would say that it should be as broad as possible and, Mr. 
Olsen, you say all necessary and appropriate force.
    I think mine is fairly broad. I know it mentions all 
necessary and appropriate. I only mention ISIS as one of the 
co-conspirators under the guise of Islamist extremism.
    With that, is there a problem with using Islamist 
extremism? Is there a problem with that phraseology, number 
one? And number two, regarding Guantanamo Bay in particular, 
how do we make sure that we are inclusive of those detainees?
    I think you touched on that a little bit. But under the 
context of this language, what could I be missing? What do I 
need to know?
    Mr. Olsen. Well, I would say, respectfully, that your 
approach would be over broad. In other words, identifying the 
enemy by a belief system, essentially.
    Extremist Islamists would not be sustainable and it would 
be essentially an open-ended war with people who have a 
particular----
    Mr. Perry. Who have an open-ended war with us right now and 
change their names on a regular basis and their affiliations 
and their geographic locations.
    Mr. Olsen. Again, respectfully, your suggestion would be 
based on someone's viewpoints and, obviously, that would be 
quite extraordinary in terms of our history to identify an 
enemy by those terms and I think unprecedented. So I would not 
recommend that approach.
    I do think there is the opportunity to identify groups, to 
use international law principles to identify those associated 
with those groups is--again, we are talking about the most 
extreme use of our nation's capabilities--that is, use the 
military force--and therefore should be reserved for those 
circumstances against those groups who do pose the most 
significant threat to us.
    So I would not recommend an approach as broad as you have 
suggested.
    Mr. Perry. Gentlemen?
    Judge Mukasey. There is one additional problem there and 
that is you identify this as extremism. There are people who 
believe that the literal interpretation of the Koran, even to 
the point where it involves people crashing airplanes into 
buildings to bring down Western civilization, is not an 
extremist view--that it is a mainstream view.
    We shouldn't have to get into that debate. I think it is 
much safer to identify particular groups and their affiliates 
and go after them.
    How Islamic society generally deals with extremism or our 
view of what constitutes extremism is really up to them. It is 
not, I think, subject to a military solution.
    Mr. Perry. Can I have the general answer?
    General Gross. Sir, where I struggle with this is I look at 
an authorization for use of force as a response to an enemy who 
has attacked us--an organized armed group. And therefore there 
is some value in identifying by groups as enemy combatants as 
opposed to the Islamist extremism.
    Without having the opportunity to look at your proposal I 
don't know how I would define that. I would have to have some 
guidance if that were the law to help me advise a commander on 
who fits within that or who doesn't.
    So it would need to be fleshed out. It does seem to be a 
bit broad--I mean, just speaking frankly.
    The language I do like that I don't see in the Flake-Kaine 
bill is the successor language. I think that is important. I 
know that has been in previous proposals.
    Mr. Perry. And it is mine as well. But I----
    General Gross. Yes, and I don't see it in this one that 
would allow--if al-Qaeda or ISIS or another group changed to a 
different organization I don't know how we would treat that 
under this.
    Mr. Perry. Thanks.
    I yield.
    Chairman Royce. Thanks, General.
    We go to Gerry Connolly from Virginia.
    Mr. Connolly. Thank you, Mr. Chairman, and welcome to our 
panel.
    Mr. Olsen, Article 1 Section 8 of the Constitution states 
Congress shall have the power to declare war and to raise and 
support armies and other armed forces.
    Article 2 that follows that, Section 2, designates the 
President shall be Commander in Chief of the nation's armed 
forces.
    Do you think those are ambiguous or vague declarations in 
the Constitution in terms of the enumeration of powers?
    Mr. Olsen. No, and I think, as other members of the 
committee have pointed out, it does strike me to be a 
particularly wise approach that our Framers imposed in terms of 
separating powers.
    Mr. Connolly. But you said the consistent failure of 
Congress to act erodes congressional authority relative to the 
executive when it comes to war powers. Are you contending that 
the failure to act here in Congress over many decades has in 
fact compromised the language in the Constitution with respect 
to Congress' power to declare war?
    Mr. Olsen. No.
    Mr. Connolly. Okay.
    Mr. Olsen. No, I do think that over the past 16 years that 
Congress' failure to update the AUMF has allowed the executive 
branch, or really required the executive branch, to undertake 
interpretations of the AUMF that have been, as a result, 
controversial.
    Mr. Connolly. So are there implied powers in Article 2 
Section 2 with respect to the role of Commander in Chief or the 
President? I mean, not as enumerated----
    Mr. Olsen. I am not a constitutional scholar but I do 
believe that there certainly would be implied powers under the 
Commander in Chief authority under Article 2.
    Mr. Connolly. And almost every Commander in Chief has so 
claimed, going back to James K. Polk.
    Mr. Olsen. I defer to your expertise on that question.
    Mr. Connolly. Okay.
    Mr. Olsen. That sounds right.
    Mr. Connolly. Right. Although as recently as Franklin 
Delano Roosevelt, people forget he asked Congress to declare 
war against Japan after Pearl Harbor. He did not ask Congress 
to declare war against Germany and Italy.
    He waited until Hitler, several days later, declared war on 
us--considered one of his biggest mistakes--and then Congress 
declared war on Germany and Italy. So Franklin Delano Roosevelt 
still deferred to that Article 1 power before he engaged with 
Hitler, who was really kind of the prime focus of Churchill and 
FDR. But he still deferred to the congressional power.
    So there are implied powers of being Commander in Chief--I 
got to protect the country even if Congress isn't in session, I 
got to make decisions about troop deployments. I even go 
further--I actually deploy and kind of notify you later.
    Are there implied powers for Congress in this declaration 
of war power? Do we have implied power? Since the executive 
claims implied powers, do we have some?
    Mr. Olsen. I certainly think in the sense of conducting 
oversight, implied powers in terms of not only the authority to 
declare war but also to appropriate funds, there is an 
implication, certainly, in terms of providing oversight over 
how those funds are used.
    Mr. Connolly. Well, one could argue that what we are 
debating today the AUMF has such an implied power. Because it 
is not a declaration of war but it is an authorization to use 
force that we grant, delegate, to the executive, correct?
    Mr. Olsen. I think that is correct.
    Mr. Connolly. Does the delegation of such authority ever 
get stale and expire on its own, even if we don't have a 
statutory sunset provision? Is it ad infinitum?
    Mr. Olsen. I would think that the authorization for the use 
of force, unless it is extinguished in some other act of 
Congress, would stay on the----
    Mr. Connolly. Goes back to implied powers. Presumably, it 
is implied at some point that the original purpose for the 
original authorization expires, either through natural causes 
or over time, even if it isn't enumerated. Now, we are not 
operating on that principle at the moment but it is worthy of 
examination.
    Is the War Powers Act constitutional?
    Mr. Olsen. I would defer to Judge Mukasey on that question. 
Yes.
    Mr. Connolly. Judge Mukasey.
    Judge Mukasey. No.
    Mr. Connolly. No. So there we go again. Here is somebody 
representing the executive branch who decides they have all 
kinds of implied powers and, oh by the way, they get to 
enumerate whether our statutory expression of our powers in 
Article 1 are constitutional and they get to cherry pick what 
they will and won't abide by.
    And I would contend, with respect, that there are serious 
implied powers in Article 1 and that it is not the purview of 
the executive branch to determine on its own the 
constitutionality of any circumspection or circumscribing with 
respect to the Commander in Chief's powers. That is why it is 
Article 2, not Article 1.
    My time has expired.
    Chairman Royce. Thank you, Mr. Connolly.
    We go to Adam Kinzinger of Illinois.
    Mr. Kinzinger. Well, thank you, Mr. Chairman, and thank you 
all for being here and bearing with us. It is really important.
    What Mr. Connolly was saying, I think it is essential to 
remember that I think when our Founders were writing the 
Constitution they understood that you cannot have 535 
commanders in chief because we never agree with anybody.
    We can debate things and everything else but the reality is 
when it comes to making decisive decisions overseas, time-
reactive decisions, destroying an enemy, that is--can only be 
invested in one person and that is the President of the United 
States.
    I actually would agree with the judge. I am not sure that 
the War Powers Act would pass the constitutional test. But our 
power is to simply declare, I believe that a state of war 
exists as enumerated in the Constitution and then we can have 
power through appropriating money, et cetera.
    I was very concerned when a colleague of mine attempted to 
basically withdraw the current AUMFs out of provision because, 
as was discussed a little earlier, I fear that that would have 
immediately--I mean, if we believe that we can debate and pass 
a new AUMF in 6 months, I want to point to sequester and some 
of these other things in Congress that we have taken up to the 
time limit and actually not been able to successfully compel us 
to an answer.
    And I would hate to think that--so I am an Air Force 
pilot--I would hate to think that my colleagues would one day 
wake up and not have the legal authority to destroy our main 
enemy and that is, frankly, what we would run into.
    I do support a new AUMF in the current construct where we 
are at, but I don't think there can be any time limit on it and 
there can be no limitation on what the President can do because 
that makes us Commander in Chief.
    And I think what is being missed in all of this is ISIS--
yes, ISIS is an enemy. This is a generational fight that we are 
in against terrorism.
    This is not just about destroying troops on the battlefield 
now, which is extremely essential to do, but this is about 
understanding that hard and soft power come into play here and 
that this military fight, I truly believe, will be going on for 
the rest of my life to some extent.
    And so the 7- and 8-year-olds in the refugee camps today 
are the ones we need to be focussing on to deny ISIS or the 
next generation of ISIS or whatever we call them their ability 
to recruit their next recruits.
    So, General, I want to ask you, you know, as I mentioned, I 
supported----
    Mr. Connolly. Would my friend yield?
    Mr. Kinzinger [continuing]. I supported--yes.
    Mr. Connolly. Real briefly. You know I respect you. I would 
say that what you have just enumerated is unlimited power 
delegated, in my opinion, unconstitutionally, to the executive.
    You took issue with the expression of our power and the War 
Powers Act being constitutional or not. What you have just 
said, if we acted on would be an unprecedented delegation of 
power to the executive----
    Mr. Kinzinger. Well, I--with respect----
    Mr. Connolly [continuing]. Virtually conceding our war 
powers----
    Mr. Kinzinger [continuing]. With respect, and I appreciate 
that.
    Mr. Connolly. I thank my friend for yielding.
    Mr. Kinzinger. I appreciate that. But I believe that when 
you put 535 Members of Congress into the Commander in Chief 
seat and you state you have an enemy--we have an enemy right 
now, which is terrorism.
    So we give the President the authority to destroy 
terrorists and we can't put a time limit on it because we don't 
know how long it is going to take.
    It is the internally-displaced refugees now that are prime 
recruiting ground if we don't give them hope and opportunity.
    So, General, just to ask you, if we tie the hands of the 
President and the military by putting restrictions in the AUMF 
or we sunset the provision, do you think that will have 
negative repercussions on the overall fight in this war?
    General Gross. Well, yes, sir, it could. It depends on what 
those restrictions are. For example, if you put a 5-year sunset 
on it, it certainly wouldn't restrict operations for the first 
4 years and 364 days.
    But then if there is not a new AUMF in place to replace it, 
then if it sunsets and expires then that would create issues.
    If you wrote in provisions, I mentioned some examples in my 
testimony--for example, a no boots on the ground or no enduring 
large-scale combat--then those restrict the ability of the 
President and military commanders to plan and they would have 
to plan operations that were consistent with the AUMF and it 
might take options off the table that they needed.
    Mr. Kinzinger. And one of the things you know, General, as 
I do, as everybody here does, no plan survives the first 
contact with the enemy.
    So you never know what you need or what you don't need. And 
so our job through the construct of the War Powers Act, which 
hasn't been thrown out by the courts so I accept it, is to give 
the President the authority to declare war on our end, to say 
that a state of war exists, and give him the authority to do 
what he needs to do.
    Judge, I know you talked about this earlier. I wasn't here 
and I apologize, so maybe you are repeating yourself. But can 
you talk about what would happen the moment these current 2003 
and 2001 AUMFs are rescinded? What would be the legal 
implications?
    Judge Mukasey. Well, I think questions would be raised 
principally about detention since that is where the rubber 
meets the road.
    As far as ongoing military operations, obviously, there 
would be a debate about that. There would be uncertainty about 
that.
    But although the discussion before began the analysis of 
Article 2 powers at Section 2, I would go back to Article 2 
Section 1, which begins with the words ``the executive power 
shall be vested in a President of the United States.''
    It doesn't say, all except a little bit of it. Doesn't say, 
these particular instances of it. It says, the executive power. 
That means all of it.
    Mr. Kinzinger. Thank you.
    I yield back. Thank you.
    Mr. Yoho. [presiding]. The Chair now will recognize Ms. 
Kelly of Illinois.
    Ms. Kelly. Thank you, Mr. Chair, and welcome to the 
witnesses.
    In addition to granting military authority to the 
President, this bill would also require the President to send 
Congress a comprehensive strategy to defeat ISIS.
    But as we know, the U.S. fight against ISIS is not just 
military. It is political, it is economic, and diplomatic.
    How will the President's strategy address the economic and 
political pressure needed to defeat ISIS and to prevent 
successor uprising? Whoever wants to answer.
    Judge Mukasey. Obviously, that would be up to each 
President to respond to. Since this is an authorization for the 
use of military force, I think the sense is that the strategy 
indicated here is a military strategy.
    But I certainly agree with the implication of your 
question, which is that it is going to take a lot more than 
simply military strategy to do it and that is something we are 
going to have to resolve more broadly in the political debate 
that we have and in the way that the Congress authorizes the 
activities not only with the military but also, for example, 
with the State Department and other entities that carry on the 
fight in other forums.
    Mr. Olsen. I would just suggest that your question does 
raise an important point, as Judge Mukasey said, and that is 
that including a reporting requirement in an AUMF would enable 
Congress to actually have the opportunity to review the 
military strategy--again, not substituting its judgment for the 
executive branch on how to execute the war but actually being 
able to review the strategy and thereby exercise, I think, 
Congress' appropriate role under the Constitution.
    Ms. Kelly. Okay. Thank you.
    How do you feel or what provisions do you feel should be 
included in an AUMF dealing with, like, cyber terror--I mean, 
wars not fought in the same exact way anymore and what do you 
think about that?
    General Gross. Well, ma'am, you know, the provision in the 
current AUMF that is reflected in the Flake-Kaine example, and 
I believe Mr. Perry's--as he mentioned as well, his proposal 
talks about all necessary means or language similar to that. 
And that would include, I think, cyber authority subject to 
other laws and, as I mentioned in my opening statement, there's 
always other laws--international law, other domestic law, U.S. 
policy, et cetera. So the AUMF alone might give authority that 
there might be some other source of law that might restrain or 
constrain in some way.
    But we would look to all of that, or they would look to all 
of that, as they analysed a particular operation to see, is 
this a lawful enemy under the AUMF? If so, is this a lawful 
means of force to use against that enemy in this setting.
    Ms. Kelly. Anybody else?
    Mr. Olsen. No, I would just agree with General Gross on 
that question. I think that is the right answer.
    Ms. Kelly. And believe it or not, I yield back the balance 
of my time.
    Mr. Yoho. Thank you.
    The Chair will now recognize Mr. Brian Mast of Florida.
    Mr. Mast. Thank you, Chairman.
    General Gross and Mr. Olsen, you have both spoken 
extensively about the who as the most critical part of the 
AUMF. General, you said who was most critical and you actually 
said how was the most problematic piece of everything you 
listed. Mr. Olsen, you said of the three things you listed that 
Congress should consider you said who as the first one that 
you'd mentioned so take that at a priority list.
    So I want to talk to you both a little bit about how you 
determine who--get to the bottom of that a little bit, and who 
we should be considering.
    Not to use who too many times, but do you think that we 
should be considering those who conduct acts of terror? Rapid 
fire this if you want.
    Mr. Olsen. As an initial question, yes. You want to look at 
who poses that degree of threat to us. I think that is a 
starting point. I don't think that is the dispositive question 
in any sense.
    Mr. Mast. I take your head shaking as a yes?
    General Gross. Yes, sir. As I was telling Mr. Perry, I 
think you start with the premise that this is a response to an 
act of armed conflict--an act of war.
    And so as we look, and I will use the word enemy--as we 
look to define who is the enemy that Congress and the President 
have decided to use the military element of power against.
    And so there are numerous terrorist groups all over the 
world but they may not be an enemy in the sense that they have 
opened up armed conflict against the United States and 
therefore it wouldn't be, in my view, appropriate to add them 
to an AUMF. Really, an AUMF----
    Mr. Mast. Considering whether it was on U.S. soil, a U.S. 
Embassy, a U.S. warship, some other threat oversea somewhere?
    General Gross. All of those are threats to the United 
States--yes, sir.
    Mr. Mast. What about those who conduct acts of genocide--
Bashar al Assad, somebody else? Somebody conducting an act of 
genocide against their people. Should that be somebody, in your 
opinion, that we should consider in an AUMF?
    Mr. Olsen. Again, I think the reference must be made to 
whether this is an act of armed conflict against the United 
States and, again, there are other sources of law--
international law, Article 2 authority, a backdrop Article 2 
authority--for the President to take steps in the absence of an 
AUMF to protect the country. I think----
    Mr. Mast. And you advocate primarily or only for those that 
have conducted some sort of kinetic action against the U.S.?
    Mr. Olsen. Again, certainly, as a starting point, and then 
the question is, are we in an active armed conflict with a 
particular group before I think it would be appropriate to 
include them in an AUMF.
    Mr. Mast. Would either of you look at an AUMF for those 
that have conducted cyber terrorism--a nonkinetic action?
    Mr. Olsen. So I think--again, if I could just answer a 
little bit more fulsomely, I think there is a risk in looking 
at every threat through the lens of an AUMF and deciding that 
we want to use military force against that threat.
    There is a whole range of options that the government has 
whether it is a cyber threat, whether it is a humanitarian 
question or issue.
    There are lots of things the government has the ability to 
do that are short of the authorization for the use of force 
against that particular threat or group and I think that it is 
appropriate to reserve the use of an AUMF only for those groups 
that rise to the level of posing a threat that is an active 
armed conflict against the United States.
    Mr. Mast. Okay. General, when we are considering, as 
Members of Congress, an AUMF, do you think we should be looking 
at the extent of military force that would be needed to bring 
us to victory or bring us to success?
    Should that be a consideration? Should we be looking at 
whether it could lead to only conventional weapons or nuclear 
weapons or expected casualties--KIA? Should that be a 
consideration for us when deciding an AUMF?
    General Gross. Sir, are you saying a consideration of the 
other side's capabilities or our capabilities?
    Mr. Mast. If it could lead to nuclear war, should that be 
something we should consider or the amount of KIAs that we 
could expect as a result of a use of military force--should 
that play a role in our decision as Members of Congress for an 
AUMF?
    General Gross. Well, I would think you would consider all 
factors involved with such an important and serious step. As 
you consider whether or not to authorize armed conflict, 
authorize the use of military force, I would hope all those 
considerations would come into play because it is a serious 
decision to authorize military force against another entity 
whether that is a nation, an organization, a group, a person. 
It is a big step. So I would hope yes.
    Mr. Mast. So then I would ask, do you think that Members of 
Congress should have access to the operation's orders that 
exist out there with the Department of Defense--the war plans--
when we are considering an AUMF--you know, the mission, the 
commander's intent, the center of gravity, disposition of 
forces both allied and those that we consider aggressors? 
Should we have access to operation's orders?
    General Gross. I don't know. It depends on how far down. I 
mean, I know that there are regular reporting requirements. I 
know we came over frequently to both the Senate and House Armed 
Services Committees and by invitation to other committees, 
although that is within your jurisdiction and I don't fully 
understand that, to be clear. But I do know that we make a 
wealth of--or made a wealth and they still do, I assume--a 
wealth of information available. At what level that becomes 
appropriate, how far down, not because we are hiding anything 
but just that the amount of stuff you would see.
    So if we are talking wave top, large-scale campaign plans 
against nation-states, that might be informative for you all if 
we are talking about a battalion's operation order to conduct a 
particular objective in Afghanistan in a district. It seems 
like that might be below the level where Congress ought to be 
focused, in my opinion.
    Mr. Mast. My time has expired. I thank you for your 
comments, gentlemen.
    Mr. Yoho. I thank the gentleman from Florida.
    We will now go to Mr. Schneider from Illinois.
    Mr. Schneider. Thank you, Mr. Chairman, and I want to thank 
the witnesses for not just your service to the country but your 
generosity with your time and insights today. It is very much 
appreciated.
    As others have said, I agree with the consensus that it is 
long overdue that this body has had the debate that there is 
clearly a need for an updated AUMF. So I thank you for that. My 
colleague from Illinois indicated--I don't want to misquote him 
but it was--essentially, I believe he said simply that Congress 
simply has the power to declare a state of war exists. But, in 
fact, the last declaration of war was World War II. We are 
operating currently under an AUMF, something that is distinct, 
issued in 2001. Maybe just briefly if you could indicate the 
difference between an AUMF and a declaration of war.
    General Gross. I will take a first stab, sir. Again, not a 
constitutional scholar but I have heard other people who speak 
on this. First of all, we have only declared war five times and 
the last time was World War II. You all have only declared war 
five times. And there is some thought that perhaps that is 
reserved for nation-state on nation-state traditional 
international armed conflict--that you wouldn't declare war in 
a setting where--now, that doesn't talk about Korea or Vietnam, 
which were both nation-states.
    There is some thought that a declaration of war is--I am 
being careful with my words--is perhaps with the passing of the 
U.N. Charter, which is an attempt to outlaw offensive war--in 
other words, declaring war on another nation without some 
justification of self-defense or so forth--that perhaps 
declarations of war are no longer something nations do since 
the passage of the U.N. Charter. To my knowledge, there hasn't 
been a declaration of war since World War II.
    Mr. Schneider. Right. And I am going to reclaim my time 
just because it is limited. But same with you, General Gross. 
In your testimony, you talked about within an AUMF it 
establishes definitions. It creates parameters, as you laid it 
out as the why, the who, what, when, where, how questions, and 
those parameters distinct from what we are talking about with a 
declaration of war, I guess turning to the whole panel, is it 
within the authority of Congress to establish parameters of how 
we engage, where we engage, who we engage?
    Judge Mukasey.
    Judge Mukasey. How? I don't think so.
    Again, Article 2 Section 1 begins with, the executive 
power--all of it. Deciding how we should exercise an authority 
that Congress says the President should have, I think, is an 
invasion of that executive authority.
    Mr. Schneider. General.
    General Gross. Yes. As not being a constitutional scholar, 
I would say that you would have to look at the specifics and 
see whether or not that rose to the level of a conflict between 
the executive and the legislature. But I certainly think it is 
within the parameter of Congress to draft and enact an 
authorization for use of military force.
    Mr. Schneider. Mr. Olsen.
    Mr. Olsen. In preparing for this hearing, looking at the 
case law on this particular question, I do think that the law 
supports Congress' authority to impose some limitations on the 
types of activities that can be undertaken by the executive 
under a grant or authorization for the use of force. Again, 
there are serious policy judgments about where to draw the line 
between Congress and the executive branch and how to execute a 
war. But I do think that the law supports an appropriate role 
for Congress in setting some limits whether it is occupying 
territory or extensive use of ground forces.
    I think the law is clear that Congress has authority to 
impose those limitations on the executive branch.
    Mr. Schneider. And my understanding, just for 
clarification, all of you have said you support the idea of an 
AUMF having a sunset. Is that correct?
    Mr. Olsen. Yes, from my part.
    General Gross. I didn't take a position either way.
    Mr. Schneider. Okay.
    General Gross. I just point it out.
    Mr. Schneider. All right. To the extent that sunset is a 
parameter, would there be circumstances beyond time that would 
suggest it should come back to Congress to review a change? We 
have talked about the morphing of organizations. They can 
change their names. They can change their geography. But if it 
morphs into a completely different dynamic, are there times 
where an AUMF reaches a limit where it should come back to 
Congress to review and refine? Judge.
    Judge Mukasey. Again, that is a policy choice rather than a 
legal choice and it is up to this body to decide whether an 
unlimited piece of legislation ought to come back to be limited 
or to be reconsidered.
    Mr. Schneider. And I asked the question--let me state it in 
a specific context. As we look and are considering a refined 
AUMF, going forward, we have a conflict taking place in Syria 
now. It has multi facets to it. It is going to change many 
times over from the time whatever we decide to the time we get 
to whatever hopeful conclusion we achieve a peaceful--what I 
ultimately believe will be a non-military solution. But I am 
concerned that there will be a moment in that conflict that we 
need to ask ourselves, again, questions--how far do we go?
    And my time has expired but if the panel wants to touch on 
that at all, I would welcome that.
    Mr. Olsen. If I may, just very briefly, because I do agree 
that the situation in Syria, as complicated as it is, 
highlights the need for clarity with respect to the use of 
force and I do think that you are correct in the Congress' 
authority to set parameters and to require whether it is an 
approval or a disapproval process some mechanism for reviewing 
the expansion of authority whether it is to new groups or new 
geographic areas such as new countries and I think Syria is a 
prime example of why that is a prudent thing for Congress to 
do.
    General Gross. And I would just add, by necessity I never 
think of a single conflict just because it is inside a country.
    There are multiple conflicts going on inside Syria and so 
if something happened that the United States was no longer 
acting within the authority of its AUMF and found itself acting 
against another enemy, whether that was a nation-state or some 
other organized armed group, then we would need to have some 
domestic legal authority for that conflict separate from the 
one with ISIS.
    Mr. Yoho. Thank you for your response.
    Mr. Schneider. Thank you. I am over time. I appreciate the 
extended time.
    Mr. Yoho. We will now go to Mr. Garrett from Virginia.
    Mr. Garrett. Thank you, Mr. Chairman.
    It is like I live in a parallel universe sometimes when I 
am in this town. Daniel Patrick Moynihan, who I hold in high 
regard, once suggested that you are entitled to your own 
opinions but not entitled to your own facts, and Vandenberg 
famously said that politics should stop at the water's edge. 
But when I listen to my esteemed colleague make his 
introductory remarks where he said he is ``not clear on the 
administration's plans to deal with ISIS and how it differs 
from the last administration, if it does,'' I thought, where am 
I?
    So I am going to use such hard-line conservative sources as 
the Huffington Post, CNN, and the Atlantic to try to address 
his concerns and inability to differentiate.
    On June 8th of this year, CNN said, ``Iran calls Trump's 
ISIS response repugnant.'' I don't think the Iranians 
criticized the last administration so vociferously.
    On June 29th, Huffington Post said, ``U.S.-supported forces 
retake Mosul.'' The Atlantic, on May 20th, said, ``The scramble 
for a post-ISIS Syria is beginning.''
    And ABC News, on July 20th, said, or quoted a former three-
star general who said, ``It's simple. We are winning. They are 
losing.''
    Let us contrast that to the previous administration. ABC 
News, June 29th, 2016, said, ``ISIS 2 years later: From JV team 
to international killers.''
    November 14th, 2015, CNN said, ``Obama declares ISIS 
contained''--the day before the Paris attacks. Newsweek, April 
19th, 2016, said, ``Obama: Mosul will be recaptured from ISIS 
by the end of this year.'' We know how that turned out.
    And The New Yorker, January 10th, 2017, said, ``During 
President Obama's 8 years in office jihadis gained more turf, 
more followers, and more money.''
    So I wish that my colleague who said he couldn't 
differentiate between the policies of the previous 
administration had looked not at policies but at results 
because I think they are relatively easily differentiated. 
Sorry. I couldn't help myself there.
    We talked early in this hearing about repealing the AUMF 
and then replacing it. I will submit--and, again, I apologize--
I have limited time--that that is incredibly dangerous, in my 
estimation, because historically what I think we have learned 
is that the Article 2 branch will exercise executive authority 
without authorization where they deem it necessarily and 
candidly, I think constitutionally they almost have a duty to 
do that. And historically, I think it is telling what Andrew 
Jackson said after the court ruled: They have made their 
ruling--now let us see them enforce it.
    So we have a duty here. I would adopt the comments of my 
colleague from the other side of the aisle, Congressman Deutch, 
not doing a new AUMF is an abdication of our responsibility and 
our duties and, candidly, unfortunately, it seems that we 
abdicate more frequently sometimes in this body than we act.
    But I think it is our responsibility to review the 
circumstances in light of obvious changes over the course of 16 
years and then act appropriately to authorize and fund, because 
that is our Article 1 responsibility, our Government as it 
pursues the enemies of this Nation and ensures, hopefully, 
peace and stability, and that is prosperity and opportunity for 
our posterity.
    I would also, however, reference positively the comments 
that my colleague, Mr. Kinzinger, who said, and I will 
paraphrase, that we are at war not with a nation but an idea 
and that we need to focus on that 7-year-old displaced child in 
a camp somewhere because you can't declare victory against an 
idea and have it be a fait accompli.
    You have to create circumstances where individuals have 
hope, have a pathway to opportunity, because it has been my 
observation that you are much less likely to strap an explosive 
vest to yourself when you aspire one day to be a doctor or a 
lawyer or a teacher.
    So we need to look to the future but we also need to 
aggressively prosecute those who would do us harm. My fear is 
that we have all too often in the past looked at what the needs 
of the moment were and not looked to the long-term needs. We 
articulated early upon being sworn into office that we should 
never engage in regime change without contemplating just what 
might fill the vacuum. And so specifically, as it relates to 
Syria, and again, I want to advocate very clearly that we 
should enact a new AUMF, that we should not repeal the existing 
AUMF until the day after the old one goes into effect because 
creating a vacuum means something will fill it.
    But, specifically, as it relates to Syria, everyone knows 
the horrific acts of Assad but are there--and maybe I am a 
little bit afield, Mr. Chairman--are there any viable entities 
to run that nation as it currently exists on a map who wouldn't 
be equal to or worse than Syria?
    Jabhat Al-Nusra, Jabhat Fateh al-Sham are essentially co-
opted by al-Qaeda, right? And then there is ISIS. You have got 
the Kurds, who have no desire to run that country, and the 
country who has no desire to be ruled by Kurds.
    So open-endedly, as we authorize an AUMF and we act in 
Syria, don't we need to be careful that we don't create a 
circumstance where what follows is worse than--if conceivable, 
than what we have now?
    I will yield back, but that one can be rhetorical but----
    Mr. Yoho. Thank you, sir.
    Mr. Garrett [continuing]. I think I know the answer.
    Mr. Yoho. Appreciate your comments.
    We now go to Mr. David Cicilline from Rhode Island.
    Mr. Cicilline. Thank you. Thank you, Chairman.
    I want to thank our chairman and ranking member for giving 
us the opportunity to explore this important issue and really 
thank our three witnesses for helping to inform this 
discussion.
    I am extremely concerned by the escalation of violence in 
Syria in recent months and by the extremely broad and, in my 
view, incorrect interpretation that this administration has 
taken of its authority to take military action in Syria. Let me 
be clear that I also had deep reservations about some of the 
Obama administration's actions in the region, which I voiced 
openly at that time.
    However, the missile strikes, the shooting down of a Syrian 
Government plane, and other actions that the Trump 
administration has taken have seriously ratcheted up American 
military engagement in Syria without congressional input or 
authorization.
    I know many of my colleagues share my deep concerns and 
that is why more than 60 of them have joined me in sending a 
letter to the President raising their serious concerns about 
his actions and reminding him that the Constitution requires 
him to seek congressional approval for military actions and I 
would ask unanimous consent that this letter be entered for the 
record.
    In my view, the 2001 AUMF needs to be repealed and replaced 
by an authorization that is tailored to the threats that we 
currently face, not the threats of almost two decades ago. It 
is clear that the President of any party will use a broad 
interpretation of the existing authorization to justify their 
use of military force. It is up to Congress to reassert our 
role and consider a new authorization for the use of military 
force.
    However, let us be clear. This President has presented no 
strategy for dealing with ISIS, no strategy for ending the 
brutal reign of the Assad regime, and no strategy for engaging 
with other terrorist threats around the globe.
    And here is my first question--is it not correct that the 
President must come to Congress with a plan, with an actual 
strategy, and then seek congressional authorization for any 
part of that plan that requires the use of military force--that 
it cannot be done in the reverse when we imagine what the plan 
is and sort of estimate what we think the use of military force 
would be to support the plan, it doesn't exist.
    So don't we have to first have a plan and a strategy from 
the President that says, here is what we will do to defeat ISIS 
and here is the force that I need to execute that plan? Anyone 
disagree with that?
    Judge Mukasey. Yes.
    Mr. Cicilline. You disagree. Why?
    Judge Mukasey. Because even declarations of war simply 
declare that a state of war existed. They did not declare how 
the plan was to be, how the plan was to be executed, what 
strategy was to be pursued, and what any limits were.
    You cannot declare in advance how you intend to achieve a 
victory.
    Mr. Cicilline. So, Judge, do you then think that there is 
no limitation to congressional action with respect to the use 
of military force--that it is simply a declaration of war or 
not? That Congress doesn't have the ability to limit?
    Judge Mukasey. No. It can limit as to who is the enemy.
    Mr. Cicilline. That is it? Not as to----
    Judge Mukasey. It can limit--it can, although the question 
whether it should--limit as to where.
    Mr. Cicilline. But if in fact Congress has the ability to 
limit who and where and maybe something else, doesn't it make 
sense that the President of the United States should share with 
Members of Congress what that plan is, what that strategy is, 
so we can make a determination as to whether or not the use of 
military force ought to be authorized?
    Judge Mukasey. No, because that would mean that we would 
have 535 commanders in chief of the armed forces----
    Mr. Cicilline. No. It would mean we would have Congress----
    Judge Mukasey [continuing]. And the executive power is 
vested----
    Mr. Cicilline [continuing]. Playing that role of 
authorizing the use of the----
    Judge Mukasey [continuing]. In one person.
    Mr. Cicilline. Okay. I understand that there is a sense 
that the executive branch should have maximum flexibility in 
this area. But I think most of us understand the American 
people are very concerned about authorizing a President to take 
us into another war like Iraq and Afghanistan. So in what ways, 
General and Mr. Olsen, do you think Congress can provide a 
check on the President's authority to deploy ground troops, 
which is an issue which we hear a lot about from constituents 
and some sense that we can engage in this fight without the use 
of ground troops? In what ways can Congress or should Congress 
impose limits on the President's use of military force?
    Mr. Olsen. I do think there is a very important policy 
judgement for Congress to make here and I, too, think Congress, 
as I mentioned before, has the legal authority to impose some 
restrictions along the lines of, for example, limiting ground 
troops.
    To your question before--the conversation with Judge 
Mukasey, I think it is important to take into account the 
current nature of this conflict--in other words, the difference 
between Japan bombing Pearl Harbor and a declaration of war or 
even al-Qaeda attacking us on 9/11 and the authorization of use 
of force days later.
    We are in a very long struggle with a very complicated, 
dynamic, and persistent enemy, which I think does suggest that 
it is appropriate for the executive branch to come to Congress 
and explain who is the enemy, how are we going to attack it, 
where do we need to use force, and that should inform how 
Congress imposes any restrictions on the use of such force, 
because at the end of the day, Congress speaks for the American 
people.
    Every member of this committee has individuals in their 
district who are fighting on the front lines in this conflict 
and I think as the representatives of the American people, 
Congress has an extraordinarily important role to speak for the 
American people and impose appropriate restrictions on how that 
force is exercised.
    Mr. Cicilline. Thank you.
    Mr. Yoho. The gentleman's time has expired.
    Mr. Cicilline. Mr. Chairman, I don't think you ruled on my 
unanimous consent request to put into the record the letter 
that we sent to President Trump signed by 60 of my colleagues. 
I would just ask unanimous consent it be placed in the record.
    Mr. Yoho. Accepted.
    The Chair will now recognize Mr. Ron DeSantis from Florida.
    Mr. DeSantis. Thank you, Mr. Chairman.
    Judge, what distinction do you draw, if any, between a 
declaration of war and an authorization for the use of military 
force?
    Judge Mukasey. Hard to draw that distinction. As has been 
pointed out, we have declared war only five times in our 
history. We have fought many, many more wars. It is possible 
that a declaration of war would apply simply to the 
conventional nation-state situation. But I think what we are 
talking about is the question of how and whether our armed 
forces are deployed rather than distinctions between AUMF and a 
declaration of war.
    Mr. DeSantis. The criticism that is sometimes lodged is oh, 
you guys are doing authorization of force--you haven't declared 
war--somehow that is an illegitimate use of force. You don't 
think that that carries any water, correct?
    Judge Mukasey. I do not.
    Mr. DeSantis. When, in your judgement, is congressional 
authorization needed for force? Obviously, if Congress declares 
war or authorizes it, the President's good--if we are attacked 
or he is fending off an attack. But there are certain times in 
the middle where a President could potentially engage. If you 
look at some of the hot spots that are not necessarily covered 
by an AUMF, whether it is a North Korea threat or Iran, when 
does it come to where Congress has to authorize it, in your 
judgement?
    Judge Mukasey. That is a political decision that is made in 
the tug of war between Congress and the executive. We have this 
Constitution and there is a lot of play in the joints and that 
is where the tug of war goes on. I can't sit here and tell you 
a priori precisely where it is necessary for the Congress to 
assert itself. But I shouldn't have to.
    Mr. DeSantis. So how about the funding--what I want to get 
at is how the funding power interacts with the authorization. 
You, in your testimony, said you would be willing to live with 
a 5-year lapse, although I think you would prefer no lapse, 
correct, if you just had your druthers or----
    Judge Mukasey. I would prefer no lapse in dedication and 
commitment. Part of the problem is that when you pass a 
resolution in 2001 and it gets to be 2017 and you have people 
scratching their heads about how it all happened and how we got 
here, that means that there has been a lapse in commitment.
    Mr. DeSantis. If we do the 5-year and it lapses but then 
Congress continues to dedicate funding for the military effort, 
do you consider that to be implicit authorization?
    Judge Mukasey. It is a de facto authorization and that has 
happened in other settings and that is what I mean by the tug 
of war and the political interaction.
    Mr. DeSantis. Because we had this issue with the Obama 
administration. He wanted an authorization of force that 
limited the use of force. First of all, I don't think that that 
would make sense anyways. But if you are going to try to limit 
it if there is a political concern wouldn't it be better to 
authorize the force and then use the funding mechanism to say 
okay, we don't want ground troops in Syria and then just limit 
it that way rather than tie the hands at the start of the 
conflict?
    Judge Mukasey. The funding power is a sharp-edged 
instrument, but it can certainly be used.
    Mr. DeSantis. Let me ask you this question. We are debating 
on this committee, Judiciary, some other ones, about whether or 
not that we should designate the Muslim Brotherhood as a 
terrorist organization. I know you were involved in terrorist 
cases as a judge and as Attorney General. What is your 
recommendation for us? Should we consider them a terrorist 
organization or not?
    Judge Mukasey. My sense is that it is the State Department 
that draws up the list of foreign terrorist organizations 
rather than Congress. The----
    Mr. DeSantis. Well, let me just correct--what we are doing 
is we did a bill out of the committee last year saying Congress 
believes and then urging the secretary of state to make the 
determination.
    Judge Mukasey. Based on what has been their slogan ever 
since they were founded that ends with ``jihad is our way and 
dying in the way of Allah is our highest hope,'' yes.
    Mr. DeSantis. No, I agree with you. I think that that 
should be done. I have urged the administration to do it.
    Mr. Chairman, thanks for holding the hearing. I think the 
witnesses have been really good so thank you, guys. And we 
should debate this. We should update the AUMF. I think it could 
be done. I think it would be actually one of the few times we 
actually have an insightful debate on the House floor for a 
change. So I am all for it but we have got to understand--I 
think all of you do--that this is a threat that is not going 
away. It evolves and the idea that we are only going to target 
the people who are actually responsible for 9/11 and not open 
our eyes to the fact that we have militant jihadists waging war 
against us and other parts of the world. I just think that 
doesn't cut it. So we have got to update it and do it right. 
Thanks.
    Mr. Yoho. I thank the gentleman from Florida.
    We will now go to Ms. Barbara Lee from California.
    Ms. Lee. Thank you, Mr. Chairman. Thank you all very much. 
It has been a very enlightening and important hearing. Now, I 
am glad to be back. I was on this committee for 11 years and I 
was here during the debate around the authorization of the 2001 
authorization.
    However, that never came to this committee. Three days 
after the horrific events of 9/11 it went straight to the 
floor. So this committee never had a chance to weigh in on 
that. The resolution, as was mentioned earlier and read, it was 
60 words, it was overly broad, and it did set the stage in the 
framework for perpetual war. I think now it is about 20 percent 
of members who are here today were here during that period. And 
so I have been consistently trying to repeal that authorization 
and I want to clarify what several have said earlier including 
Chairman Royce.
    The amendment I offered, I have been offering it for many 
years but this year in Appropriations Committee--I serve on 
Approps now--which was adopted was an amendment that would 
repeal the 2001 resolution but it would give Congress 8 months, 
mind you--8 months to come up with a new one prior to its 
repeal. Somehow it has been misunderstood and misconstrued that 
I am saying let us repeal it and then take as long as we want.
    So that is not the case and I want to make sure everyone 
knows that because that would be irresponsible and I would not 
offer such an amendment. So we would have 8 months after the 
repeal to come up with a new one and the repeal would stay in 
effect until we came up with a new one.
    I wanted to ask just with regard to our national security 
strategy. Mr. Olsen, you mentioned the toolbox in which we have 
in our counterterrorism efforts and that every non-military 
strategy should possibly be used before the use of force. So I 
would like to ask all of you how do you view preventing 
conflicts in the first place and what do you think about a 30 
percent cut to the State Department and USAID funds in terms of 
our strategies to prevent the use of force and wars--the 
necessity for the use of force.
    And then secondly, on what basis should we authorize the 
use of force? I mean, General, you mentioned terrorism is going 
to be with us. You know, we can't continue to use force 
everywhere in the world.
    How do we really refine and know which groups, which 
nations, which organizations are real threats to our national 
security or do we continue to, in many ways, get embroiled in 
civil wars that will just provide the United States the--well, 
it would be assured that we would be in the civil wars in 
perpetuity?
    So, Mr. Olsen, could you start?
    Mr. Olsen. Sure, I will start and I will say that I agree 
with the point that you raised about the importance of a whole 
of government approach to our counterterrorism efforts. I think 
that is something that everyone I served with over two 
administrations, both Republican and Democrat, agreed with and 
that it was the necessary approach. In fact, the comments more 
recently of Secretary of Defense Jim Mattis have agreed with 
that as well, calling the use of military force a last resort 
in our counterterrorism fight.
    So there is broad agreement on that point. There is broad 
agreement on all the different tools that are available from 
law enforcement to economic to diplomatic and I think a number 
of the comments that have been made today during this hearing 
about the fact that this a, at some level, a struggle for ideas 
and that countering the ideology that fuels terrorism is part 
of our efforts and a lot of that is done out of the State 
Department. And so that is a critical component of our overall 
counterterrorism strategy.
    General Gross. Yes. I couldn't agree more, Congresswoman. I 
mean, I love Secretary Mattis' quote he is famous for: ``If you 
are going to cut the State Department's budget, I need a bigger 
budget for bullets,'' the idea being that that is just going to 
generate more conflict without diplomacy.
    I agree that all the elements of national power ought to be 
brought to bear and the military ought to be a last resort. I 
don't think you will find anyone in the military who likes war. 
I mean, it is just the horrific results of war and the toll on 
family and on our service members and civilians. We would like 
to avoid war whenever possible and so I agree with you 100 
percent.
    We need diplomacy to work. We need other elements of 
national power to come into play first, and I think as Mr. 
Olsen has pointed out, we often look for the military as that 
one solution and therefore it is an important solution but it 
is not the solution to every problem.
    Ms. Lee. Thank you. Thank you, Mr. Chairman, and I guess I 
would just conclude by just saying as we talk about and debate 
a new authorization, we have to remember this in terms of 
preventing the use of force as we discuss a new, if we ever do, 
authorization to use force because, clearly--and I did vote 
against it because, for me--I was the only one who voted 
against it--it was just too broad and I knew it would set the 
stage for where we are now.
    So I thank you for this hearing and I would hope that as we 
debate this that what we just talked about is part of that 
debate so the Members of Congress can understand that our 
actions do lead to reactions that could continue these spiral 
of events where we may be able to pull back at some point and 
try to prevent further acts of terrorism if we do it 
differently. Thank you again.
    Mr. Yoho. I thank Ms. Lee and I thank your hard work for 
trying to bring the AUMF to an end, and I have been on several 
of your bills and I think we need to keep fighting that and we 
will get this clarified. So thank you for your comments and 
your time.
    Gentleman, I am the last one here and so the end is near. 
Here we are 16 years into this AUMF and as has been pointed 
out, a lot of the Members of Congress including myself were not 
here when that happened and so what I have seen is an open-
ended war.
    And General Gross, you commented that the current AUMF may 
not be legal to go after ISIS in Country X or an affiliated 
Group B that develops later because now ISIS is in the 
Philippines. We have got reports in South America, and without 
a clear definition and a mission statement, this has morphed 
into a war in a designated area, in a region, to what we see 
today, and my fear is if we don't bring this under closure or 
get closure to this, where are we going to be in 5, 10, 15 
years from now.
    And I don't want to have to think about if Congress had 
declared war on Nazism or imperialism during World War II, 
would our country still be at war today. What are your thoughts 
on declaring war on an ideology versus a nation-state like 
Germany or Japan back in World War II?
    General Gross. I will take the first stab, sir. And first 
of all, just to be clear, I don't think I said you couldn't go 
after ISIS in different countries because I think there is 
adequate legal basis for them as an enemy, which leads into the 
question you just asked. An AUMF really should focus on an 
enemy, an enemy force, whether it is a group, a person, or an 
organization who has attacked the United States and against 
whom should we use military force.
    And so declaring war or authorizing military force against 
an ideology or an idea makes it difficult for me to put in the 
terms of armed conflict and what I understand to be both 
international law, international humanitarian law, the law of 
armed conflict.
    You know, it deals with enemies, not with ideas, and so 
that is what makes that difficult. I mean, you could define it, 
I suppose, in such a way that you could get to the enemy. But, 
to me, you define an enemy. You define against whom you can use 
military force.
    Mr. Yoho. Mr. Olsen, did you have something you want to 
say?
    Mr. Olsen. I just wanted to add, briefly, that I totally 
agree it would be both legally and operationally 
extraordinarily problematic to define the enemy in terms of an 
ideology. It would not work on either of those dimensions, 
legal or operationally. I would also just quickly point out 
that even in the immediate aftermath of 9/11, so days after 9/
11 under the extraordinary circumstances that were occurring in 
this country at that point, Congress pushed back on an 
executive branch request for a grant of authority to use 
military force against terrorism and aggression.
    So a broad grant of authority the executive branch asked 
for and Congress pulled back and only authorized use of force 
against those responsible for 9/11 to deter future acts of 
terrorism. So precedent exists even in those extraordinary 
times for Congress' role here.
    Mr. Yoho. What I saw was an--and Ms. Lee brought it up--is 
it didn't get debated in committee. It went right to the House 
floor. I don't want to call it a knee-jerk reaction but it was 
a rapid response. Had we had that debate, we might have had 
things clarified as far as the direction, the commitment, and 
we have been struggling with this for the last 5 years that I 
have been here and the idea somebody brought up, should an AUMF 
sunset with that administration, with the ability to be renewed 
to carry into the next administration, does anybody have a 
thought on that?
    Judge?
    Judge Mukasey. I don't know that the tenure of 
administrations really coincides with the ebb and flow of 
events, you don't necessarily have an occasion for passing an 
AUMF at the beginning of an administration so that if you get 
to the end of an administration you get an AUMF, what do you 
do?
    Do you then have it lapse until the new administration 
comes into force? I think that it has to be responsive to the 
events rather than to the change of administration.
    Mr. Yoho. I guess the biggest thing is, so that we don't 
get these open-ended conflicts that morph from what we went to 
the conflict in Afghanistan in 2001 to where we are now where 
it is spread throughout. You know, we went after al-Qaeda. We 
went after the people that committed the atrocities of 9/11. 
But yet, now we have got ISIS that has come out of the morphing 
of the terrorist groups at that time.
    What happens when ISIS is gone? There is going to be an 
ISIS 2.0 or 3.0 the next generation. And so without a clear 
definition, this is in perpetuity. It is like the war on 
poverty or the war on drugs. And I think for the sake of our 
young men and women in the military, for the commitment this 
country has made financially, this last National Defense 
Authorization Act is pushing $700 billion--$700 billion today 
after a conflict that started 16 years ago.
    So I think there needs to be strong and clear decisive 
directions and authorization and maybe move this war on terror 
into another vehicle and then reel back the AUMF and use it for 
nation-on-nation kinetic energy or kinetic contact.
    It is just something that, hopefully, with this hearing 
today a lot of good ideas and we can bring this to an end and 
move on to the next. I don't want to say the next conflict but 
focus our country's energy where we need to be for national 
security.
    Any closing thoughts?
    Judge Mukasey. I think even if we were to say that the AUMF 
went out of existence, at the end of the day we would still 
experience attacks----
    Mr. Yoho. We will.
    Judge Mukasey [continuing]. Because they are focused on us 
as the principal and the most powerful country in the world and 
the principal exponent of Western ideas.
    Mr. Yoho. Sure.
    Judge Mukasey. And that is really the way it starts and I 
think that we blink reality by disregarding that.
    Mr. Yoho. General.
    General Gross. I was just going to say thank you. I very 
much appreciate and I know all members of the armed forces 
appreciate how serious Congress takes these issues. No matter 
where you come out, it matters--that knowing that you all care 
enough to take the time means a great deal to the members of 
the armed forces. So I would just say thank you again.
    Mr. Yoho. Well, again, I appreciate all your service. I, 
personally, have known five young men and women that have lost 
their lives in this conflict and here we are 16 years later.
    So it is something we do take seriously. It is something 
that we want to make sure that we get it right so we don't 
commit our young men and women and put them in harm's way.
    And I appreciate your time. That is the end of the 
questioning. This meeting is adjourned. Thank you.
    [Whereupon, at 12:54 p.m., the committee was adjourned.]

                                     
                                     

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