[Senate Hearing 115-446]
[From the U.S. Government Publishing Office]




                                                        S. Hrg. 115-446

                     WAR POWERS AND THE EFFECTS OF
         UNAUTHORIZED MILITARY ENGAGEMENTS ON FEDERAL SPENDING

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

                                HEARING

                               before the

                    SUBCOMMITTEE ON FEDERAL SPENDING
                   OVERSIGHT AND EMERGENCY MANAGEMENT

                                 of the

                              COMMITTEE ON
                         HOMELAND SECURITY AND
                          GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE


                     ONE HUNDRED FIFTEENTH CONGRESS

                             SECOND SESSION

                               __________

                              JUNE 6, 2018

                               __________

                  Available via http://www.govinfo.gov

       Printed for the use of the Committee on Homeland Security
                        and Governmental Affairs




[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]





		 
                     U.S. GOVERNMENT PUBLISHING OFFICE 
		 
33-954 PDF                WASHINGTON : 2019                 




















        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona                 CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio                    THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky                  HEIDI HEITKAMP, North Dakota
JAMES LANKFORD, Oklahoma             GARY C. PETERS, Michigan
MICHAEL B. ENZI, Wyoming             MAGGIE HASSAN, New Hampshire
JOHN HOEVEN, North Dakota            KAMALA D. HARRIS, California
STEVE DAINES, Montana                DOUG JONES, Alabama

                  Christopher R. Hixon, Staff Director
               Margaret E. Daum, Minority Staff Director
                     Laura W. Kilbride, Chief Clerk
                   Bonni E. Dinerstein, Hearing Clerk


  SUBCOMMITTEE ON FEDERAL SPENDING OVERSIGHT AND EMERGENCY MANAGEMENT

                     RAND PAUL, Kentucky, Chairman
JAMES LANKFORD, Oklahoma             GARY C. PETERS, Michigan
MICHAEL B. ENZI, Wyoming             KAMALA D. HARRIS, California
JOHN HOEVEN, Montana                 DOUG JONES, Alabama
                      Greg McNeill, Staff Director
                Zachary Schram, Minority Staff Director
                      Kate Kielceski, Chief Clerk
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                            C O N T E N T S

                                 ------                                
Opening statement:
                                                                   Page
    Senator Paul.................................................     1
    Senator Peters...............................................     3
    Senator Sanders..............................................    11
    Senator Merkley..............................................    13
    Senator Udall................................................    15
    Senator Lee..................................................    17
Prepared statement:
    Senator Paul.................................................    31
    Senator Peters...............................................    34

                               WITNESSES
                        Wednesday, June 6, 2018

Hon. Andrew P. Napolitano, Senior Judicial Analyst, Fox News 
  Channel........................................................     4
Jonathan Turley, Shapiro Professor of Public Interest Law, George 
  Washington University..........................................     7
Christopher Anders, Deputy Director, Washington Legislative 
  Office, American Civil Liberties Union.........................     9

                     Alphabetical List of Witnesses

Anders, Christopher:
    Testimony....................................................     9
    Prepared statement...........................................    65
Napolitano, Hon. Andrew P.:
    Testimony....................................................     4
    Prepared statement...........................................    36
Turley, Jonathan:
    Testimony....................................................     7
    Prepared statement...........................................    49

                                APPENDIX

Statement for the Record from Committee for Responsible Foreign 
  Policy.........................................................    73
Responses to post-hearing questions for the Record from:
    Mr. Napolitano...............................................    75
    Mr. Turley...................................................    80
    Mr. Anders...................................................    85

 
                     WAR POWERS AND THE EFFECTS OF
         UNAUTHORIZED MILITARY ENGAGEMENTS ON FEDERAL SPENDING

                              ----------                              


                        WEDNESDAY, JUNE 6, 2018

                                 U.S. Senate,      
                        Subcommittee on Federal Spending,  
                    Oversight and Emergency Management,    
                    of the Committee on Homeland Security  
                                  and Governmental Affairs,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:32 p.m., in 
room SD-342, Dirksen Senate Office Building, Hon. Rand Paul, 
Chairman of the Subcommittee, presiding.
    Present: Senators Paul, Peters, and Harris.
    Also present: Senators Lee, Sanders, Merkley, McCaskill, 
and Udall.

              OPENING STATEMENT OF SENATOR PAUL\1\

    Senator Paul. I bring to order the Subcommittee hearing. I 
want to thank everybody for attending. I think this is a very 
important hearing.
---------------------------------------------------------------------------
    \1\ The prepared statement of Senator Paul appears in the Appendix 
on page 31.
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    My father used to always say there were two things you 
rarely heard in Washington, and that was either a moral 
argument or a constitutional argument. Today we are going to 
discuss the Constitution, how we go to war, and what is the 
Constitution's approach to war.
    For years now, though, critics have complained that the 
global war on terror has never really been authorized by 
Congress.
    After the attacks on September 11, 2001 (9/11), President 
Bush did his constitutional duty. He asked Congress to 
authorize war against the people who attacked us on 9/11 or 
anyone who harbored them or aided and abetted those who had 
attacked us.
    If you read the authorization, it is actually very 
specific. Bush originally asked for more expansive language, 
but Congress insisted on narrowing the mandate to use force 
against only those who either attacked us, planned the attack, 
or harbored the attackers.
    Force is authorized against unnamed entities, but they are 
narrowly defined by their relationship to the attacks of 9/11. 
Authorization was not given for a global war on ``terror'' or 
against radical Islamists or separatists or insurgents in 
various civil wars. Authorization was not given for 
``associated'' forces.
    Authorization was specific and solely to be directed 
against the people who attacked us on 9/11 and anyone who 
helped or harbored them. Period.
    It is safe to say that no one in Congress believed that 
they were voting for a worldwide war on ``terrorism'' in twenty 
some odd countries that would go on for decades.
    Intellectually honest observers have for years now 
complained that the 9/11 authorization of war does not cover 
the wars being fought throughout dozens of countries in Africa, 
the Middle East, and the South Pacific.
    Basically the expansion of the ``war on terrorism'' really 
has occurred without the required constitutional authorization.
    Senators Corker, Kaine, and others wish to rectify the 
lapse in constitutional declaration of war by passing a new 
authorization for force.
    I do not disparage their effort. Their motives are genuine. 
But really there are two big issues here that need to be fully 
debated.
    No. 1: Does it matter who wields the power to initiate war?
    Our Founding Fathers believed strongly that it did. They 
squarely delegated the power to declare war to Congress. 
Madison put it this way: ``The executive is the branch most 
prone to war, therefore, the Constitution, with studied care, 
vested that power, the power to declare war, with the 
legislature.''
    Yes, it is the job of Congress to declare or initiate war, 
and Congress has been negligent for over a decade now. Congress 
has not done its job. Congress has let President after 
President strip the war power from Congress and concentrate 
that power in the Executive.
    The second and inseparable issue is: When and where should 
we be at war?
    It is not enough to say Congress should authorize war. The 
bigger question is where and when should we fight. Our job is 
not just to put a congressional imprimatur on war. The vast and 
important job of Congress is to decide when and where we go to 
war.
    The debate that should ensue must ask: Are we to authorize 
the status quo? Are we to authorize war in all of the theaters 
that various Presidents have taken us? Or should Congress limit 
the scope of the worldwide wars we find ourselves involved in?
    Here the Corker-Kaine authorization fails us. The Corker-
Kaine authorization does not limit the scope of war; it merely 
codifies the status quo and I would argue actually expands the 
current theaters of war.
    Corker-Kaine authorizes war against at least eight groups 
that are known to operate altogether in over 20 countries. 
Hardly sounds like we will have any less war.
    Equally concerning is that Corker-Kaine unconstitutionally 
delegates or transfers an enumerated power from Congress to the 
President.
    Article 1, Section 8 gives Congress the sole power to 
declare war. Corker-Kaine initially authorizes war against 
eight groups but says to the President: ``Hey, you get back to 
us and give us an initial list in case we missed anyone we are 
currently at war with. If you want to add any `associated 
forces' to the list, please send us a report.''
    This authorization transfers the power to name the enemy 
and its location from Congress to the President.
    Worse yet, this authorization changes the nature of 
declaring war from a simple majority, affirmative vote to 
require a supermajority, veto-proof vote to disapprove of 
Presidential wars.
    If the President defines a new ``associated force'' that 
our military will attack, the only way Congress can stop that 
President is now a two-thirds vote to overcome his veto.
    The Constitution is flipped on its head. This authorization 
fundamentally transfers the delegated power of war declaration 
from Congress to the President.
    The hearing today is convened to explore precisely that 
question: Can Congress transfer the power to declare war to the 
President?
    In that context, we will discuss the constitutionality of 
the Corker-Kaine authorization for war. I hope we will have a 
spirited discussion.
    With this, I would like to recognize the Ranking Member, 
Senator Peters.

             OPENING STATEMENT OF SENATOR PETERS\1\

    Senator Peters. Thank you, Mr. Chairman, for calling 
today's hearing. I continue to be impressed with your 
willingness to have this Subcommittee tackle the big issues, 
and no issue certainly is bigger than War Powers.
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    \1\ The prepared statement of Senator Peters appears in the 
Appendix on page 34.
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    Voting to send our sons and daughters to war is the most 
important and the heaviest responsibility that a Member of 
Congress bears. We must never forget that while the sacrifice 
of war is borne by our servicemembers and their families, under 
Article I, Section 8 of the Constitution, the responsibility of 
asking for that sacrifice is ours.
    Yet, today our warfighters are serving in harm's way in 
places that have never been named in any declaration of war and 
facing adversaries that cannot be found in any authorization of 
military force.
    The Framers, in their wisdom, separated the power to 
declare war from the power to wage it. But, Mr. Chairman, as 
you have observed, the reality is that we are at war anywhere 
and anytime the President says so. In failing to assert our War 
Powers, we have effectively ceded them to the President.
    Ceding war powers to the President is a way for us to play 
it safe. In avoiding a declaration of war, and in keeping force 
authorizations vague and malleable, we can blame the President 
when things go wrong.
    But we must not shirk our constitutional responsibility in 
favor of political expediency. We owe it to our servicemembers 
and their families to roll up our sleeves and to have this 
debate.
    This is not a partisan issue, nor should it be. Congress 
has not declared war since World War II. President Obama did 
not seek congressional authorization for the use of military 
force in Libya, nor did President Trump seek congressional 
authorization for military action in Syria.
    The 2001 Authorization for Use of Military Force (AUMF) 
against al-Qaeda has now been used by three Presidents to 
support combat in countries with no nexus to 9/11 and against 
organizations that did not even exist then. It offends common 
sense, in my mind, and that is why I supported Senator Paul's 
effort to repeal the 2001 and 2002 Authorizations for Use of 
Military Force.
    The world has changed since we last declared war in 1942. 
Our adversaries often wear no uniform and swear allegiance to 
no nation. The technology of war has evolved in ways that would 
be unrecognizable to the Framers. Our military can impact world 
affairs in an instant with a drone strike directed remotely 
from inside the United States. How we authorize war must adapt 
to the changing threats and technologies.
    But the principle of separation of powers that animated the 
drafters of this Constitution is as sound today as it was in 
1789. The power to declare war and to authorize military force 
is Congress' most sacred responsibility. We must reclaim it.
    I know that our witnesses have spent a lot of time 
considering these issues, and I am eager to hear their views. I 
want to know more about the cost of congressional inaction and 
ideas for reasserting our constitutional authorities. I am 
heartened by the bipartisan engagement today and hopeful that 
we can find solutions together.
    I yield back.
    Senator Paul. Thank you, Senator Peters.
    Let me begin by noting that several Senators who are not on 
the Subcommittee have requested to attend due to their interest 
in the important issue. Therefore, I would like to ask 
unanimous consent to allow Senators Sanders, Merkley, Lee, and 
Udall, should they come, to fully participate in the hearing.
    Our first witness will be Judge Napolitano, who is 
currently the senior judicial analyst at Fox News Channel. 
Judge Napolitano is the youngest life-tenured superior court 
judge in the history of the State of New Jersey. Following his 
service, he began teaching constitutional law at Delaware Law 
School for 2 years and at Seton Hall Law School for 11 years, 
where he was chosen by the student body as their most 
outstanding professor. Judge Napolitano has authored seven 
books on the U.S. Constitution and lectures nationally on civil 
liberties in wartime, the rule of law, the U.S. Constitution, 
and human freedom.
    Judge Napolitano, you are recognized for your opening 
statement.

  TESTIMONY OF THE HONORABLE ANDREW P. NAPOLITANO,\1\ SENIOR 
               JUDICIAL ANALYST, FOX NEWS CHANNEL

    Judge Napolitano. Thank you, Senator Paul. When I asked my 
bosses at Fox if I could participate in this proceeding, they 
asked if Senator Sanders was going to be here, and I said, 
``Yes, he is.'' They said, ``Well, we are dying to see Bernie 
Sanders cross-examine you. [Laughter.]
---------------------------------------------------------------------------
    \1\ The prepared statement of Judge Napolitano appears in the 
Appendix on page 36.
---------------------------------------------------------------------------
    I said, ``It will not be a cross-examination. We agree on 
everything.''
    ``Well, we will let you go anyway.''
    You know me as a commentator on television, and I have also 
been a professor of law at Delaware Law School, at Seton Hall 
Law School, and at Brooklyn Law School for a total of 16 years. 
I have published nine books on the Constitution, and much of my 
work has concentrated on the separation of powers. We often 
begin the first day of constitutional law by asking the 
students: What is the most distinguishing feature of the 
American Constitution? This is the first day of law school. 
Most of them will say freedom of speech or protection of 
privacy. Some of them may even say due process. But I impose 
upon them the observation that even the constitutions of 
totalitarian countries guarantee freedom of speech and privacy 
and due process, but only ours has the strict separation of 
powers. The structure of the Constitution with the primacy of 
the Congress in Article I is a profound demonstration of the 
commitment of the Founders to this sacred ideal. Though Senator 
Peters has argued eloquently that the separation of powers is 
the value and the ideal, unfortunately, it is not always the 
practice because Presidents have assumed that they can utilize 
military force if they think it is popular because the Congress 
will sit back and do nothing.
    All that is necessary for the triumph of evil is for good 
men and women to do nothing.
    When the Congress looks the other way, as it did when 
President Obama bombed Libya and when President Trump bombed 
Syria, this is effectively an amendment of the Constitution by 
consent. We consent by our silence to the President of the 
United States usurping the authority that the Constitution 
gives to us. That authority is unmistakable. If Madison was 
clear about anything, he was clear that the war power is the 
most awesome power the government can wage, and it can only be 
reposed in the Legislative Branch.
    The very practical reason for that is war is a failure when 
it lacks broad public support, and only the Congress has its 
thumb on the pulse of the people to determine whether war 
enjoys broad public support.
    Now, the President and the Senate have entered into 
treaties and Congress has enacted statutes which give the 
President a little bit of leeway. If an attack is imminent, he 
does not have to wait for the first missile to come. If we have 
signed a treaty with an ally and the ally needs assistance 
immediately, he does not need Congress' intervention there 
because the treaty has been ratified, and under the 
Constitution a treaty is up there on the hierarchy equivalent 
to the Constitution itself.
    But does the President of the United States of America have 
the power to bomb another country which poses no imminent 
threat to the United States of America? The answer is very 
clear, and it is a loud and resounding no. The President does 
not have that authority. When Members of Congress look the 
other way, it is either because of a belief that what the 
President is doing is popular, let him take the heat; a belief 
that what the President is doing is wise. We have not been 
asked to get involved; we do not want to get involved. We are 
running for election soon. War may be popular. War may be 
unpopular. Whatever is going through the minds of Members of 
Congress, it is not fidelity to the Constitution. It is not 
fidelity to the separation of powers.
    I was interviewing a Member of Congress whose name I will 
not mention at the very moment that we broke into the broadcast 
to announce that the President was bombing Libya. I said, ``You 
are of the same party as the President. What do you think about 
this?''
    ``Well, the President does not have the authority to do 
this. We all know that.''
    ``What are you going to do about it?''
    ``Probably nothing. We are on spring break. He is in 
Brazil.'' This is when President Obama made this announcement 
and when the bombing occurred. When the congressional break was 
over and the President returned from his trip to South America, 
nothing had happened except that the Constitution was weaker 
and the power of the Presidency was stronger. Gaddafi was about 
to be killed in a horrific way.
    If Gaddafi was so evil that he ought to have been killed by 
American forces, only Congress can unleash those forces. 
Madison could not have been clearer.
    What troubles me the most is the precedential value that 
comes about when Congress looks the other way. I am not here to 
criticize President Trump. This is not an argument about 
politics. This is an argument about principle. But he had 
reason to believe that Congress would do nothing, because 
Congress did nothing in these other instances in which 
Presidents went to war.
    Mr. Chairman, I would argue that the AUMFs are 
unconstitutional because they do not have an endpoint, because 
they unleash the President to pursue who he wants for as long 
as he wishes to do so. I would encourage you to repeal those 
AUMFs, but not to replace them with Corker-Kaine. Senator 
Corker is a friend of mine. Senator Kaine is a friend of mine. 
This is hardly personal. But as you yourself, Mr. Chairman, 
have pointed out, at the present time the President goes around 
the world--and I do not mean President Trump. Presidents go 
around the world looking for monsters to slay, and when it is 
popular or when in their view it is moral, they slay them, and 
Congress does nothing about it.
    But when this behavior becomes a precedent for future 
Presidents to do it, when a President in this era can rely on a 
document of no moral and legal value, like the two AUMFs, and 
Congress does nothing about it, the Constitution is being 
amended by consent.
    I only have a few seconds left. Corker-Kaine: If Congress 
decides to withdraw funds for some military excursion, the 
President will veto the act of withdrawal, and then it will 
require a two-thirds vote of both Houses to overcome that. A 
President with one-third plus one in either House can wage war 
on any target at any time the President chooses to do so. That 
is so contrary to what Madison intended. So contrary to the 
plain meaning of the Constitution, so violative of the 
separation of powers as to be a rejection of the oath to 
preserve, protect, and defend the Constitution. None of you 
wants to reject that oath.
    I look forward to your questions after hearing from my 
learned colleagues.
    Senator Paul. Thank you, Judge Napolitano.
    Our next witness is Professor Jonathan Turley. Professor 
Turley is a nationally recognized legal scholar who has written 
extensively in the area of constitutional law. Professor Turley 
has served as a consultant on homeland security and 
constitutional issues and testified before the House and Senate 
on constitutional and statutory issues. He has been ranked 
among the top 10 lawyers handling military cases, top 15 most 
cited public intellectuals, and the second most cited law 
professor in the United States.
    Welcome, Professor Turley.

 TESTIMONY OF JONATHAN TURLEY,\1\ SHAPIRO PROFESSOR OF PUBLIC 
           INTEREST LAW, GEORGE WASHINGTON UNIVERSITY

    Mr. Turley. Thank you, Chairman Paul, Ranking Member 
Peters, and Members of the Committee. It is a great honor to 
come to this Committee to speak about this weighty issue of the 
Constitution. Indeed, if there is a sacred article of the 
Constitution, it is Article I, Section 8. It is not merely a 
constitutional but a moral responsibility.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Turley appears in the Appendix on 
page 49.
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    Indeed, the words ``Congress shall have no power to declare 
war'' fail to capture the moral imperative. It is not simply a 
power but, rather, an obligation that is meant to adhere to 
each member when you raise your hand and you take your oath of 
office.
    At the earliest stages of our Republic, members began to 
struggle with this responsibility. Regrettably, S.J. Res. 59 is 
the ultimate and perhaps inevitable end to that process. The 
new AUMF amounts to a statutory revision of one of the most 
defining elements of the United States Constitution.
    We find ourselves at this ignoble moment not by accident 
but by decades of concerted effort by members of this 
institution to evade the responsibilities given to them by the 
Framers of our Constitution.
    The result is that our citizens are taught, our children 
are taught a false assertion that members of this body will 
declare war and have the sole responsibility to do that. After 
all, the provision speaks loudly to that, clearly to that.
    What this does and what past AUMFs have done is to reduce 
that very loud declaration of irresponsibility to what Macbeth 
referred to as voices ``full of sound and fury and signifying 
nothing.''
    My written testimony details the express intent of the 
Framers. I would just simply note one aspect that I find most 
telling. We have plenty of quotes from my favorite Framer, 
James Madison, but for virtually every Framer, this is one of 
the few points upon which there was almost unanimity. I say 
``almost'' because Pierce Butler actually proposed to give this 
entire power to the President of the United States. He did not 
receive a second. He spoke to a room of Framers and made that 
proposal, and not a single one seconded that motion.
    That was one of the most important moments of our Republic. 
That silence, the absence of a second, shows where we began, as 
men of conscience and principle who knew that they had to 
strike this compromise, to restrict the powers of the 
Presidency and to give this sacred duty to this institution. It 
was a compromise. But, of course, it is hard to see how that 
express language got us to where we are today. In almost 250 
years, we have had five declared wars with only 11 declarations 
in those five declared wars.
    It actually began poorly. We did not even get out of the 
18th Century before members of this institution found ways to 
get around this duty. When John Adams wanted to start the Quasi 
War, to his credit they did put forward legislation that 
referred specifically to the French vessels that could be 
boarded. But it was not a declaration. We were not even out of 
the 18th Century before politicians found a way to get around 
this duty.
    Now, our last declaration was in 1942, and that record has 
made a mockery out of the statement of George Washington in 
1793, when he said, ``The Constitution vests the power of 
declaring war in Congress.'' He added this: ``Therefore, no 
offensive expedition of importance''--``no offensive expedition 
of importance''--``can be undertaken until they have 
deliberated upon the subject and authorized such a measure.''
    We have made a mockery of that statement. We have made a 
mockery of Article I and Section 8.
    Now, before I mention some of the flaws I see in this 
legislation, I want to know one thing, and this sort of 
reflects my friend in terms of what he said. There is a path 
dependence with AUMFs. There is an assumption that we should 
only be debating the scope and the standards by which a 
President has to satisfy. There is still the original question. 
Many of us do have constitutional reservations about the AUMFs. 
If anything, the wisdom of the Framers has been made evident in 
our modern history. We are at war everywhere, always. We have 
forever war. It was not the Framers' fault. That is in 
direction violation of what they thought would prevent it. They 
hated war. Framers despised it. They believed that Presidents 
and chief executives were naturally inclined toward war. That 
is why they made this such a clear standard.
    Now, in my testimony I talk about the problems that I see 
in this proposal and why I think it is worse than the current 
AUMF, which takes quite an effort. I will not go through all 
the details about how the new nations or countries are added, 
the associated forces, or the shift from an ex ante to an ex 
post action. All of those are fundamental flaws that go even 
further from where we were.
    The ex ante/ex post problem I think is really the signature 
moment of this law. This body has failed historically to 
require a declaration, so they got rid of the declaration. Then 
they failed and got rid of the need to specify as to which 
nations we are going to go to war against. Now they are about 
to get rid of even the requirement to get any type of prior 
authorization. It will make this body a pedestrian to war, and 
it will put war-making on autopilot.
    This law does not even have a sunset provision. It just 
goes on. I could see why that is so tempting to have. It 
certainly relieves members of this body of the rather 
uncomfortable questions that do come up.
    But in my remaining few seconds, I will simply note this: 
Under the past circumvention of Article I, Section 8, under the 
former AUMFs, we have gone through 17 years of war. You adopt 
this proposal, we will have 170 more, because this has 
virtually no standards. It will effectively revise the 
Constitution of the United States without an amendment.
    I have had the honor of testifying before this body, also 
your counterparts in the House, many times. But today I took a 
step that I have not done before, and I have asked two of my 
sons to come with me. I have four children. My sons Aidan and 
Jack are behind me. They are both either at draft age or about 
to be at that age. I felt that they should be here to watch 
part of this process because they may well be asked to pay the 
ultimate price for the authority that Congress may soon bestow 
upon the President.
    If called, I know they will do their duty, as did their 
grandfather and great-grandfather and other people in my family 
in previous wars. I do not have any question about them doing 
their duty. But I do have a question whether the members of 
this institution will do their duty and stand with the express 
language of the Constitution, reject this proposed AUMF, and 
show the Framers that the faith that they put into this body 
was well placed.
    Thank you again for the honor of appearing before you 
today, and I would be happy to answer any questions you might 
have.
    Senator Paul. Thank you, Professor Turley.
    Our next witness is Christopher Anders. He is the Deputy 
Director of the Washington Legislative Office of the American 
Civil Liberties Union (ACLU). Mr. Anders leads the ACLU's 
Washington-based advocacy on topics of war authority, 
detention, torture, and Guantanamo issues. He has also written 
extensively on the topic of the Authorizations for the Use of 
Military Force, declarations of war, and separation of powers. 
Mr. Anders.

TESTIMONY OF CHRISTOPHER ANDERS,\1\ DEPUTY DIRECTOR, WASHINGTON 
       LEGISLATIVE OFFICE, AMERICAN CIVIL LIBERTIES UNION

    Mr. Anders. Thank you. Chairman Paul, Ranking Member 
Peters, and Members of the Subcommittee, the American Civil 
Liberties Union would like to express our appreciation to you 
for holding this hearing today.
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    \1\ The prepared statement of Mr. Anders appears in the Appendix on 
page 65.
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    No decision by government is graver or more consequential 
than the decision to go to war. Over the many years since 
Congress passed the AUMF in 2001, the ACLU has dedicated 
ourselves to defending civil liberties and human rights that 
have been jeopardized by, at best, tenuous claims of the 2001 
AUMF as legal authority, or more chillingly, by Presidential 
claims of Article II authority in a complete absence of any 
advanced congressional authorization.
    These harms have included the drone killings of even an 
American citizen, broad surveillance of American citizens, the 
kidnapping and torture of suspects, and indefinite detention 
without charge or trial, even of an American citizen 
apprehended here in the United States.
    While it would be impossible for one Congress to undo the 
damage of nearly 17 years of Presidential overreach and 
congressional negligence, we propose in our written statement a 
three-step process for Congress to reclaim its exclusive 
constitutional authority to decide whether the United States 
should be at war. For now, in my oral testimony I will focus on 
the most pressing first step.
    Dr. Paul, to apply to Congress the first principle of 
medical care, ``First, do no harm,'' the top priority for this 
Senate must be to ensure that S.J. Res. 59, the Corker-Kaine 
AUMF, does not become law. It would be hard to overstate the 
depth and breadth of the dangers to the Constitution, civil 
liberties, and human rights that would be caused by the Corker-
Kaine AUMF. The damage would be colossal. Not only would it 
almost irretrievably cede to the Executive Branch the most 
fundamental power that Congress has under Article I of the 
Constitution--the power to declare war--but it also would give 
the current President and all future Presidents authority from 
Congress to engage in worldwide war, sending American troops to 
countries where we are not now at war and against groups that 
the President alone decides are enemies, against groups that do 
not even exist today.
    The Corker-Kaine AUMF would authorize force, without 
operational limitations, against eight groups in six countries. 
The President could then add to both lists, as long as the 
President reports the expansion to Congress. To be clear, the 
President would have unilateral authority to add additional 
countries--including the United States itself--to the list of 
countries where Congress is authorizing war. The President 
would have unilateral authority to add additional enemies, 
including groups in the United States itself and even 
individual Americans under its new authority for the President 
to designate ``persons'' as enemies.
    Although Congress could bar an expansion to additional 
countries or additional groups, such action would effectively 
require a two-thirds majority of both Houses, given that the 
President presumably would veto legislation to curtail an 
expansion that the President himself has ordered. Every 
President for the coming decades would effectively be able to 
claim for the Executive Branch much of the power that the 
Constitution gives to Congress and gave to Congress 
exclusively.
    Before closing, I want to point out a sleeper provision 
with the innocuous title ``Section 10 Confirming Amendment.'' 
This provision greatly expands the scope of the infamous 2012 
National Defense Authorization Act (NDAA) indefinite detention 
provision. In its single sentence, Section 10 of the Corker-
Kaine AUMF would expand the NDAA indefinite detention authority 
by adding this new AUMF as a basis for the military to capture 
and imprison individuals in indefinite detention without charge 
or trial. The Corker-Kaine AUMF, like the NDAA detention 
provision itself, has no statutory prohibition against locking 
up American citizens or anyone picked up here in the United 
States itself. While we continue to believe it would still be 
unlawful for a President to try indefinite detention of an 
American citizen in the United States (again), there is no 
reason for Congress to risk it.
    When Congress considered the NDAA indefinite detention 
provision in 2012, the uproar from across the political and 
ideological spectrum was deafening. But it narrowly passed, and 
President Obama signed it. When the President signed it, he 
made a promise, as part of his signing statement, that he would 
not use it against American citizens. But that is it. It was a 
promise. He never said and nowhere did either President Obama 
or President Trump deny that either they or future Presidents 
would have the power to order military detention. The loaded 
gun was left on the shelf. The Corker-Kaine AUMF would make the 
NDAA detention provision an even greater threat to civil 
liberties and human rights.
    While we share the frustration of many Senators with 
expansive Presidential claims of war authority, including 
Senators Corker and Kaine, who have over and over again 
expressed their frustration with that, the proposed Corker-
Kaine AUMF would cause far greater problems than it would 
solve. The ACLU strongly urges all Senators to oppose the 
legislation.
    Thank you again, Mr. Chairman, for holding this hearing and 
considering these views.
    Senator Paul. Thank you, Mr. Anders. Because I believe in 
being kind and welcoming to guests, we are going to let our 
guests go first today, and we will start with Senator Sanders.

              OPENING STATEMENT OF SENATOR SANDERS

    Senator Sanders. Senator Paul, thank you very much for 
holding this hearing, and let me thank our panelists for, 
without exception, their very cogent testimony.
    Article I, Section 8 of the Constitution states very 
clearly, and I quote, ``Congress shall have the power to 
declare war.'' The Founding Fathers gave the power to authorize 
military conflicts to Congress for one very simple reason: 
Congress is the branch of the government that is most 
accountable to the people.
    There is no question but that over the years Congress has 
allowed its authority over this very important issue of war-
making to ebb. It is time for us to reassert that authority and 
to start asking some very tough questions about the wars--and I 
use the word ``wars,'' W-A-R-S--that we are currently in.
    Now, some people may think that this is an interesting 
abstract discussion. We have brilliant constitutional scholars, 
wonderful intellectual debate. But let me assure every person 
here that the abdication of Congress to its responsibilities 
over war has had incredibly dire and horrific consequences for 
the people of our country and, in fact, the world.
    I want to bring this down to earth and away from an 
abstract although enormously important constitutional 
discussion. I want to give you three examples in recent 
American history where Congress did not ask the right 
questions, abdicated its responsibility, and the consequences 
were enormous.
    Very few Americans know that when we deal with Iran, very 
much in the news right now--how many people know that in 1953 
the United States along with the British overthrew the 
democratically elected government of Mohammad Mosaddegh, 
reinstalling authoritarian rule under the Shah? In 1979 the 
Shah was overthrown, and the Iranian Revolution brought into 
power an extremist anti-American government. In 1953 the U.S. 
Government, without congressional approval, thought that it 
could simply remove the Government of Iran in order to protect 
wealthy oil interests. What has been the consequences of that 
over the years? Congress abdicated its responsibility.
    The second one, more relevant to my generation, was the war 
in Vietnam. Now Iran took place under Eisenhower, a Republican. 
In 1964 Lyndon Johnson, a Democrat, otherwise in my view a very 
great President, but in this instance cited an attack on a U.S. 
ship in the Gulf of Tonkin as a pretext for escalating the U.S. 
intervention in Vietnam. But we now know from his own 
recordings that Johnson himself doubted that story about that 
attack. Johnson's Administration misled both Congress and the 
American people into a war that resulted in the loss of over 
50,000 American soldiers and over a million Vietnamese. 
Congress was lied to. There was no serious debate about 
American intervention in that war.
    The third example, more recently, that we all remember was 
Iraq. Today it is now broadly acknowledged that the Iraq war 
was a foreign policy blunder of enormous magnitude. In this 
case, the Bush Administration lied to the American people, 
claiming that Saddam Hussein had weapons of mass destruction. 
The result of that war, the loss of thousands of brave American 
soldiers, the displacement of millions of people in the Middle 
East, and bringing us to where we are right now.
    In other words, what we have seen is time and time again 
disasters occur when Administrations, Democrat and Republican, 
mislead Congress and the American people and when Congress 
fails to do its constitutional job in terms of asking the hard 
questions of whether or not we should be in a war. I think we 
need to ask that very hard question today.
    Here is the point that I hope the American people are 
asking themselves. Is the war on terror a perpetual, never-
ending war necessary to keep us safe? I personally believe that 
we have become far too comfortable with the United States 
engaging in military interventions all over the world. After 9/
11 Congress passed an Authorization for the Use of Military 
Force ``against those responsible for the recent attacks 
launched against the United States.'' The following year 
Congress passed the 2002 AUMF against Iraq.
    We have now been in Afghanistan for 17 years. We have been 
in Iraq for 15 years. We are occupying a portion of Syria, and 
this Administration has indicated that it may broaden that 
mission even more. We are waging a secretive drone war in at 
least five countries. Our forces right now as we speak are 
supporting a Saudi-led war in Yemen which has killed thousands 
of civilians and has created the worst humanitarian crisis on 
the planet today.
    Clearly these outdated and expansive AUMFs have been used 
by three different Administrations, Republican and Democrat, as 
a blank check for the President to wage war without 
congressional consent or oversight. Meanwhile, we are currently 
``fighting terrorism'' in some 76 countries, with an estimated 
cost of $5.6 trillion and untold lives lost since 2001.
    I think it is very clear--and our panelists I think made 
the point extraordinarily well, without exception--that the 
time is long overdue, Mr. Chairman, for the U.S. Congress to 
respect the Constitution of this country, to stand up for that 
Constitution, and to demand that it is the Congress of the 
United States, not a President, who determines whether our 
young men and women are put in harm's way.
    Thank you again, Mr. Chairman.
    Senator Paul. Thank you.
    We will next turn to Senator Merkley.

              OPENING STATEMENT OF SENATOR MERKLEY

    Senator Merkley. Thank you very much, Mr. Chairman, for 
setting up this hearing.
    Under what authority do each of you feel that we are 
currently in Syria taking on Islamic State of Iraq and Syria 
(ISIS)? Judge Napolitano?
    Judge Napolitano. I do not think we are in Syria by any 
constitutional authority because, like your colleague Senator 
Sanders, I do not believe that either of the AUMFs were 
constitutional because they did not adequately articulate a 
target and they did not put in there an endpoint. But 
Presidents of both parties have used sort of the vague 
principles that they believe are emanating from the AUMFs to 
justify the type of incursion that you are asking about.
    Senator Merkley. Mr. Turley?
    Mr. Turley. Actually, I see no authority even under the 
AUMFs, certainly not under the Constitution. It is 
unfortunately a less than noble lie that we have seen come out 
of the AUMFs has been that there has been the specificity as to 
targets, which was there really for public consumption. This 
proposed legislation has that same technique. It gives some 
specific references while having provisions that that list can 
be expanded almost at al by the President subject to a 
retroactive or some post hoc action by Congress.
    Senator Merkley. Mr. Anders, do you see any current 
constitutional authority?
    Mr. Anders. No, and at the time that the government made 
the decision, the Obama Administration made the decision to 
claim that the 2001 AUMF was authority to go after ISIS 
fighters, Chairman Paul, had legislation in that was a 
declaration of war focused in on--for 1 year, on ISIS. That was 
a constitutional way to take on that fight. What they did 
instead was that they had this very tortured interpretation of 
the 2001 AUMF and applied it to a group that was actually at 
war with core al-Qaeda.
    Senator Merkley. Thank you. The reason I asked you the 
question is three esteemed experts have just clarified that we 
do not have a constitutional authority and yet our forces are 
in this battle in Syria. I wanted to use that as a way to 
dramatize what has happened since 2001 in which there was a 
very precise AUMF, very carefully constricted to those who 
attacked us on 9/11 and those who harbored those on 9/11. Since 
then it has been stretched and expanded to country after 
country, organization after organization. I think you all agree 
with that characterization of 2001 being stretched beyond 
recognition such that it does not really provide a 
constitutional foundation for current conduct of military 
forces in these countries.
    Now we are at this point, this point at which people are 
saying 2001 should not be allowed to continue. It has been 
abused so much, and we have the Corker-proposed AUMF. I have an 
impression that when you analyze the details of it and what it 
authorizes, in multiple organizations and multiple countries, 
with the President allowed to add an additional list, and that 
that additional list can be added without preauthorization by 
Congress, that it essentially codifies the expansion, the 
stretching of the 2001 AUMF. Is that a fair way to describe it?
    Judge Napolitano. Yes, it is a loaded gun.
    Senator Merkley. OK. Yes?
    Mr. Turley. Yes.
    Mr. Anders. At a minimum, yes.
    Senator Merkley. Senator Corker, who I deeply respect for 
having wrestled with the 2001, and Senator Kaine have tried to 
figure how to replace 2001, they have come up with this 
proposal which disturbs me for the reasons that you all have 
been sharing. But Senator Corker fairly said, ``So if you all 
do not like this, what would you do?'' Mr. Anders, you 
mentioned--I think your closing comment was you encourage 
members to consider presenting what could be done as an 
alternative. I have presented such an alternative. I do not 
know if each of you is familiar with it. But one of the things 
it does is have a sunset in it, so it periodically would 
require us as the Senate and House to re-examine the 
foundations and the considerations.
    Do each of you think a sunset is an important provision in 
an AUMF so we do not have unending war without reconsideration 
or reauthorization by Congress?
    Judge Napolitano. A sunset, Senator Merkley, is certainly 
helpful because it compels the Congress, the representatives of 
the people, periodically to review what the President is doing 
in their name. My own view would be legislation which simply 
says the President shall not use military force--military or 
civilian, because Presidents use intelligence forces and 
thereby bypass the War Powers Resolution.
    Senator Merkley. Well, my time is going to run out.
    Judge Napolitano. I did not mean to take--except in 
accordance with the Constitution.
    Senator Merkley. Mr. Anders, I know you have seen what I 
have put together to try to very tightly constrain just to two 
countries and three forces, put a 3-year sunset on it, and 
require any expansion of that by the President, including an 
expansion to ground forces, to require preauthorization so we 
have the constitutional vision represented in that AUMF. Any 
insights on whether that puts us more clearly on the track 
envisioned in our Constitution?
    Mr. Anders. Yes, we are really pleased with how you put 
together your AUMF. We do not take a position, the ACLU has 
never taken a position on whether the United States should be 
at war against a particular country or a particular group. But 
in terms of how it fits with the Constitution's separation of 
powers, the AUMF you put together fits very well. It is up to 
Congress then to make that decision on do we want to, as a 
country, be at war with these particular groups and these 
particular countries. But in terms of kind of fitting into a 
constitutional framework, yes, it does.
    Senator Merkley. I just want to note that several of you 
pointed out that Members of Congress are uncomfortable with 
having to make these tough decisions. It is easy to take what 
was vested in Congress and simply deliver it to the executive 
and let them take the heat.
    I find that unacceptable. I find this inversion of the 
Constitution, this proposed inversion in which the President 
can go at forces in new countries, new organizations, deciding 
on his or her own whether or not it meets the test that is in 
the AUMF, and that Congress would have to come around after our 
forces are deployed and get a supermajority of both chambers to 
close the door, something that nobody thinks Congress would 
ever do, so in sum we end up with a wholesale transfer of our 
responsibilities carefully crafted. It is tough for us to make 
these decisions, but it is our responsibility, and it is why we 
need to craft a replacement AUMF that honors that vision of the 
Constitution and makes us have the tough debates and the tough 
votes.
    Thank you.
    Senator Paul. Senator Udall.

               OPENING STATEMENT OF SENATOR UDALL

    Senator Udall. Thank you, Mr. Chairman, and I really 
appreciate your calling this hearing and having these three 
experts before us here.
    Mr. Anders, I asked the following question of Secretary 
Pompeo over at the Foreign Relations Committee, and I wanted to 
get your perspective on this. The Chief of Staff of the Army, 
General Milley, reminded us recently in an Appropriations 
hearing on the nature and character of war. The traditional 
idea is that war at its base is an extension of politics. War 
forces our will on the opponent through military means to reach 
a political objective. Taking an expansive view of what 
Congress approved on 9/11, the political objective is to stop 
terrorism at a broad level. However, a more restrictive view 
and the view that was sold to Congress when I voted in favor of 
that 9/11 AUMF was that we aim to punish and deter the 
perpetrators of the 9/11 attacks, specifically al-Qaeda and the 
Taliban. Which view do you believe is the correct one, Mr. 
Anders?
    Mr. Anders. That is easy. I think it is the narrower view. 
I think Congress at that time worked hard to come up with 
specific language, and there was a back-and-forth that has been 
reported on quite a bit--it was reported on at the time--
between the White House and drafters in Congress on coming up 
with that language. The part that is frustrating I think for 
all of us now is when we talk about a new AUMF, we are talking 
about the need for specificity and naming your objectives and 
naming the enemy. It is hard to see how that 2001 AUMF could 
have been made more specific than it was in terms of naming 
what the objective was and who it was that the United States 
was going to war against than what it is.
    The only shortcoming in it was that given that the United 
States at that time did not know the exact names of who it was 
we were at war with, it did not include the exact names, but 
other than that I think it is pretty clear that it was for core 
al-Qaeda because of their role in the 9/11 attacks and the 
Taliban for harboring them, period.
    Senator Udall. One of the restraints on war was recently 
put in a commentary by Dr. Sarah Kreps over at Cornell, and she 
is the author of a new book called ``Taxing Wars: The American 
Way of War Finance and the Decline of Democracy.'' She really 
makes the point that when you have a tax on war, you are 
involving everyone. Everyone understands that the society as a 
whole is backing this war.
    In the distant past, we paid for wars with war taxes. More 
recently, Members of Congress have proposed these taxes to 
raise public awareness about the cost of war and to share the 
sacrifice beyond a small percentage of Americans who fight in 
these wars.
    What do you think of a proposal for a war tax, other than 
digging us deeper into debt?
    Mr. Anders. I do think the bigger point of having the 
country have a greater investment and a greater knowledge of 
what the costs of war are, one of the problems that we have had 
with the lower cost of war in terms of American lives and 
American treasures with the use of drones and new technology is 
that a lot of the more obvious costs of war are not as 
apparent. Focusing in on what the financial costs are would 
probably be a very helpful way for people to have a better 
understanding of the full extent of what this actually means.
    Senator Udall. I think you would end up having a debate 
about whether or not to commit ourselves to many of these very 
dangerous situations.
    Along that same line, some people, when I go home and do 
town hall meetings and hear from my constituents, have asked: 
Why are we not seeing people in the streets like in Vietnam or 
anti-war activity on our campuses? The answer I always get is 
there is no draft. Should we relook at this? Do you consider a 
draft a check on foreign wars?
    Mr. Anders. In the past, certainly--I have been at the ACLU 
20 years; it predates my time there. But I know we have had a 
lot of concerns historically about a draft in terms of its 
impact on civil liberties and also in terms of equality and who 
is subject to it. That is not a proposal that we are 
supporting.
    Senator Udall. The Office of Legal Counsel (OLC) recently 
released its legal justification for the strikes in Syria. The 
memo states that the President identified three interests in 
support of the April 2018 Syria strikes: one was the promotion 
of regional stability; two, the prevention of a worsening of 
the region's humanitarian catastrophe; and, three, the 
deterrence of the use and proliferation of chemical weapons.
    The OLC relies on the President's Article II authority, and 
as Harvard professor Jack Goldsmith says, the Justice 
Department now officially and publicly believes the President 
can use significant air power without congressional 
authorization on the grounds of humanitarian intervention and 
deterrence of the use of chemical weapons.
    I find that OLC opinion extremely alarming. Do you agree 
with the Justice Department that these strikes can be justified 
via Article II authority alone?
    Mr. Anders. As disturbing as some of the claims made based 
on the 2001 AUMF have been, that opinion, the May 31, 2018, 
opinion on Syria strikes, strikes on Syrian targets and the 
April 1, 2011, opinion during the Obama Administration from the 
Office of Legal Counsel on the air campaign against Libya are 
chilling. They both are essentially the President claiming for 
himself the war authority that the Constitution gave to 
Congress alone. They are very expansive claims, and I think a 
lot of us thought that the Libya opinion was about as 
aggressive and as expansive as one could be, and that was only 
topped last week with the one on Syria. I do think it is a 
challenge for the Senate to figure out how to use the 
legislative process to pare that back, to invalidate those 
opinions and those relying on them, but ultimately that is 
probably going to require also using the power of the purse and 
cutting off funds for unauthorized military campaigns.
    Senator Udall. Chairman Paul, thank you so much for this 
hearing.
    Senator Paul. Thank you. Senator Lee.

                OPENING STATEMENT OF SENATOR LEE

    Senator Lee. I want to thank Senator Paul for organizing 
this hearing, and I want to thank the three of you in 
particular for your willingness to come and offer your 
expertise and insights that you have offered today, which are 
really helpful.
    We are now in our 17th year of deployment under the 2001 
Authorization for the Use of Military Force. It is not yet the 
case that our most junior personnel deployed were not born as 
of the moment that 2001 AUMF was issued by Congress, but it 
will soon be the case. Long before it is even fathomable that 
we will have retreated from these battlefields, it will be the 
case that this AUMF was issued before they were born.
    In the meantime, we have some issues to deal with. We have 
spent $2.8 trillion in these efforts under the 2001 and 2002 
AUMFs, and there is not a lot of accountability that comes when 
Congress continues to look the other way or tolerate ongoing 
efforts, ongoing deployments consistent with those 2001 or 2002 
AUMFs without having additional discussions on what exactly we 
are doing, on why U.S. blood and treasure should be put on the 
line.
    Instead of the people's elected representatives debating 
and discussing these things in real time, these issues have 
been left to the will and the whim of a small handful of 
political elites in Washington, DC. This is scary, and it is 
contrary to the text, the structure, the history, and the 
tradition underlying our Constitution. It is one of the reasons 
why I welcome this hearing and why I think we need to have this 
discussion.
    I have a few questions. We will start with you, Mr. Anders. 
Earlier this year, as you are probably aware, Members of 
Congress receives a letter from the Department of Defense (DOD) 
relying on a 1975 argument suggesting that the only time 
Congress has an indispensable role in authorizing U.S. forces 
to be deployed is when deployed units of U.S. forces are on the 
ground engaged in a kinetic exchange. Do you agree with that? 
If not, why?
    Mr. Anders. No, we do not agree with that. First of all, it 
is Congress' exclusive authority to provide authorization in 
advance before a military engagement in the absence of a need 
to repel a sudden attack, and that is the constitutional 
standard.
    Senator Lee. It is often now how we fight wars today, 
anyway. There is lots of kinds of warfare that we engage in 
today that does not necessarily involve a kinetic exchange 
between people on the ground.
    Mr. Anders. That is right, and I think, this again is 
something that began during the Obama Administration, this 
definition of what ``hostilities'' mean under the War Powers 
Resolution, and the position that President Obama eventually 
took was that hostilities did not include air power in the 
absence of ground troops. That, of course, means that lots of 
places, as you just referenced, where the United States is at 
war are not considered hostilities. Therefore, the War Powers 
Resolution, which it does include deadlines for withdrawing in 
the absence of congressional authorization, do not apply. With 
that opinion from Harold Koh, then the legal adviser at the 
State Department to President Obama, the Executive Branch 
pretty much wrote out of existence a good part of the War 
Powers Resolution.
    Senator Lee. Which is of concern to many of us here and 
ought to be more so than it is within Congress.
    Professor Turley, as you know, it was well understood at 
the time of the founding and was made an understanding based on 
how the Constitution was written that the President, unlike the 
King, would not have unilateral power to go to war. In fact, 
Hamilton makes this point in Federalist No. 69. When people 
talk about the immense power vested in the Executive to deploy 
military personnel, from what source are they claiming that 
authority exists?
    Mr. Turley. There is no source. The interesting thing about 
this particular provision in Article I, Section 8 is it was 
viewed at the time as the defining work of the Convention. The 
Framers joined together--who were normally not in agreement--
and said this is how we can address this defining issue. They 
all agreed that they did not want a situation like the one we 
have today where a President has this type of unilateral 
authority, and they believed they had fixed the problem because 
Article I, Section 8 could not be more clear.
    To fold this back to the question that you asked my 
colleague, the definition that the President put forward of 
this kinetic conflict was used in the litigation that I led on 
behalf of Democratic and Republican members. The Obama 
Administration came forward when we were challenging the Libyan 
war as an undeclared war and came into court and said, ``You 
know what? It is not a war by our definition.'' When they made 
that argument, they went further than that, and they said, 
``The President alone defines what war is.''
    Now, we responded to the court and essentially asked, 
``Does that track with you? Do you honestly think that the 
Framers put this specific of an obligation, spent this amount 
of time, and it all comes down to a noun that the President is 
simply allowed to define?''
    By the end of the litigation, by the way, I had no better 
idea of what ``kinetic'' means in wartime than I did before.
    Senator Lee. It means you are hitting stuff, I think.
    Mr. Anders. Yes, I guess so. But it got to that point of 
absurdity. This is all an effort to avoid clarity, you try to--
change the noun, if you cannot deal with the obligation.
    Senator Lee. To avoid clarity, I think that is a good 
description, to avoid clarity in a place where morality, 
decency, and justice would seem to demand clarity and where the 
Constitution provides clarity.
    Judge Napolitano, I want to talk to you for a moment about 
the associated forces doctrine. Executives from both political 
parties for decades now have used this as justification for a 
number of military operations. But when I read the text of the 
2001 Authorization for the Use of Military Force, it seems 
somewhat clear to me that it covers a fairly narrow scope of 
targets, to include ``those nations, organizations, or persons 
that he''--``he'' being the President--``determines planned, 
authorized, committed, or aided the terrorist attacks that 
occurred on September 11, 2001, or harbored such organizations 
or persons.''
    Can you explain to me the limits of this AUMF, meaning what 
groups or geographic regions the U.S. could legitimately go 
into under this authority?
    Judge Napolitano. Senator Lee, I have argued that the 
AUMFs, both of them, 2001 and 2002, are unconstitutional 
because they fail to include an endpoint. That is the reason we 
are having this hearing today, because Presidents have used 
these to go wherever they wanted to go. George Orwell predicted 
all of this when he said words would determine liberty. If the 
President can define war rather than the Congress defining war, 
he or she will define it in a way to facilitate his or her use 
of it.
    At one point the Obama Administration argued that the use 
of intelligence forces on the ground who were not wearing 
uniforms with insignias on them is not the same as military 
forces on the ground. They looked a little different because 
they did not shave every day, but they were carrying the same 
type of offensive weaponry with which to kill people that had 
not been authorized by the Congress.
    The use of the phrase ``associated forces'' and permitting 
the Commander-in-Chief to define what those mean--I used this 
phrase earlier with Senator Merkley--is like, Justice Jackson 
said, dissenting in Korematsu, ``a loaded gun'' in a desk 
drawer of the President, ready for him to take it out and shoot 
it whenever he wants.
    Senator Lee. Well said. I see my time has expired. Thank 
you, Mr. Chairman.
    Senator Paul. Senator Peters.
    Senator Peters. Thank you, Mr. Chairman. Gentlemen, thank 
you for your testimony here today. It is certainly an 
interesting discussion.
    I wanted to take my time and discuss something that is 
actually happening today and get your sense of what you are 
seeing and your thoughts. Today the Senate, as you know, is 
starting debate on the National Defense Authorization Act for 
2019, and the bill that was before us includes a provision that 
will allow the Secretary of Energy to pursue development of a 
low-yield nuclear weapon without first receiving specific 
authorization from Congress.
    I voted against this provision as a member of the Armed 
Services Committee, and it literally strikes from current law a 
requirement that a new low-yield nuclear weapon be 
``specifically authorized by Congress,'' and it replaces it 
with a provision that will allow the Secretary of Energy to 
decide on his own whether or not to go forward.
    The provision that is struck was a limitation that Congress 
put in place about 15 years ago to ensure that the legislature 
and not the Executive Branch would make such a highly 
consequential decision. I would argue if Members of Congress 
think that our arsenal needs a low-yield nuclear weapon that we 
should debate it, we should authorize it, and do it in full 
view of the American people as existing law requires. Instead, 
some are trying to change the rules to allow the Executive 
Branch to make this decision without congressional approval. I 
think that is fairly clear.
    For the panel, what are your thoughts? Is this an 
appropriate delegation of congressional responsibility?
    Judge Napolitano. In my view, Senator Peters, it is not. I 
would have commended you and do commend you for your vote and 
for your understanding. The point I tried to make in my initial 
comments was it is often the subtle and unseen passage of power 
from the Congress to the President that comes back to wreak the 
most havoc. Quite frankly, as a person who monitors this, I was 
unaware until you discussed this just two minutes ago that this 
is being debated by the Senate today. This is profoundly 
hideous and utterly unconstitutional that bureaucrats in the 
Executive Branch would have power that Madison and Company 
expressly gave only to the Congress.
    Senator Peters. Any others?
    Mr. Turley. I would simply add that I do find it very 
problematic in terms of using the appropriations process as a 
substitute for an authorization and a full debate. You have two 
former House pages here. We will not tell you the years we 
served. But you can look it up because of what I am about to 
mention. When I was a House leadership page, we had the debate 
over the neutron bomb of whether to allow the neutron bomb to 
be developed or whether it was a new type of weapon that would 
make nuclear war more feasible and, therefore, more likely.
    I stood there on the House floor listening to that long 
debate that went into the earliest hours. It was one of the 
most profound experiences of my life, and I came away with a 
deep respect for members on both sides that spoke honestly, 
directly about the consequences and the issues behind that type 
of weapon. I remember thinking as a young page that this is a 
pretty great place when we debate whether we should do 
something, not whether we could do something, and what 
implications does it have not just for us but for the world. 
That is a debate that I think you should always want.
    The other point I was going to mention is in my testimony I 
talk about the problems that we are having not just with the 
failure of Congress to carry out its duties under Article I, 
Section 8, but its collateral failure to deal with its 
obligations under the appropriations powers. When we litigated 
against the Libyan war, one thing a lot of people did not 
realize is that war was completely paid out of loose change. 
Congress never appropriated money for the Libyan war. We did an 
entire war that was paid for because Congress gives so much 
money to the Defense Department, they can actually have a war 
based on the money you give them and do not commit to. The 
failure is on both sides of this issue.
    Senator Peters. I appreciate that. Mr. Anders, I am going 
to ask you to answer a slightly different question, but picking 
up from this debate on nuclear weapons, the consequential 
nature of them, and why congressional input and debate is, in 
my mind, essential and it seems as if both of our previous 
witnesses would agree with that. I spend a great deal of time 
thinking about the future of warfare, which is going to change 
in absolutely dramatic ways. I am intimately involved in self-
driving cars and autonomy and things that are happening in that 
scope. It is driven by artificial intelligence and machine 
learning. The face of warfare will be radically changed in the 
next 5 to 10 years. I think it raises some profound issues 
certainly of the morality and ethics of what we are dealing 
with, but also some significant policy issues, and perhaps a 
view of what Congress' involvement should be given the fact 
that this technology is changing rapidly and our adversaries 
may not be bound by the same types of constraints that we have 
here.
    I want to get your thoughts. What should we be thinking 
about in terms of war powers given the fact that technology 
will be changing dramatically and in profound ways? I know you 
mentioned a little bit about that earlier, Mr. Anders. I would 
like to have your thoughts.
    Mr. Anders. Yes, I think this is one place where the need 
for specificity, the need for controls, and the need for 
limitations put in at the get-go is really important. I think, 
there are instances where there are members of the Foreign 
Relations Committee that have come up with various amendments 
to various AUMFs set in front of them limiting operationally 
what can be done in different theaters of war. But I think, 
kind of even more fundamentally, limiting the geography and 
limiting who the enemy is are particularly important. Going a 
little bit back to the question about the provision today, I 
think if Congress has not learned anything over the past couple 
decades other than that when it is a one-way ratchet wrench 
with turning any kind of authority over to the executive 
branch, if you provide discretion to the executive branch, you 
are not getting it back.
    The starting point for an Authorization for the Use of 
Military Force or a declaration of war or any kind of new 
weaponry ought to be controls imposed by Congress. If later on 
those controls needs to be loosened, then loosen them. But, the 
greater and the tighter control you put on from the start, the 
more likely it is that Congress is going to retain that 
authority.
    Senator Peters. I am out of time, Mr. Chairman, but if 
anybody had a quick thought on that, I would entertain that.
    Judge Napolitano. Fully agreed.
    Senator Peters. Good. Thank you.
    Senator Paul. Thank you, Senator Peters.
    It was mentioned earlier that our soldiers within the next 
year will actually have been born after 9/11 and have no memory 
of it. We have been at war that long. Even many in the audience 
here today are young enough that they may not remember 9/11. It 
is not to say it was not something profound, and we needed to 
respond. But we are still at war, and I think we have lost our 
mission.
    I asked Secretary Pompeo when he was before us, is there a 
military solution to Afghanistan, and he frankly said no, and 
he is one who still wants to stay. My question is: If there is 
no military solution, why would we add more troops? I am 
reading Steven Coll's book now, ``Directorate S,'' about 
Afghanistan and Pakistan, and in 2010 the Obama Administration 
admitted there was no military solution. In the book there is a 
discussion, and it says unanimously everyone agreed there was 
no military solution in 2010. We have to wake up and do 
something. That is part of what this hearing is about. But it 
is also about the constitutionality of authorization to use 
force, a declaration of war.
    I think that it is important that we review these again. 
There is one, possibly two reasons why this is 
unconstitutional, and we will start there. One, I think it 
delegates authority that is congressional authority given by 
the Constitution to Congress to the President. Why do we not 
start with Judge Napolitano and Professor Turley? How is that 
unconstitutional? Is there a possibility that we can go to 
court? Is there evidence that we have ever had a delegation 
doctrine overturned where Congress delegated some of their 
authority they were not allowed to do? Judge Napolitano first.
    Judge Napolitano. Professor Turley is the country's expert 
on getting cases sent to court that seem impossible because it 
looks like there is no standing, but he manages to find it, so 
I will let him address that. But the Supreme Court has held 
countless times that just because the branch of government that 
is losing the power consents to that loss does not make it 
constitutional because the separation of powers doctrine was 
not written to preserve the prerogatives or the hegemony of the 
three branches but, rather, to preserve human liberty by 
keeping the branches at tension, Madison even said jealous of 
each other.
    The problem, of course, is getting the courts to examine 
this. There have been some examinations, but they are few and 
far between. Professor Turley is an expert on that because most 
of the time the court will say, particularly with respect to 
war--I am not talking about Congress saying to the FDA you can 
make all the regulations you want about toothpaste. We are 
talking about with respect to war, the courts are more likely 
than not to say that is a political question. If you do not 
like the war, elect a new President or elect a Congress that is 
more faithful to its oath to uphold the Constitution.
    But just because that power passes from legislative to 
executive with the consent of both does not make it 
constitutional. In fact, the core authorities of each branch 
may not be exchanged, mixed, or commingled with either of the 
other branches. If the court is clear on anything, it is clear 
on that.
    Senator Paul. Professor Turley.
    Mr. Turley. Thank you very much. There is this strange 
anomaly which is largely a creation of the judiciary that 
exists today. Most people, when they learn civics, believe that 
if something is unconstitutional, then the courts have a chance 
to review it. The sense is that the checks and balances work in 
the tripartite system because no one can act alone.
    Unfortunately, that is not true because the courts have 
developed narrowing standing doctrines that I have long been a 
critic of. You actually can have glaring unconstitutional acts 
where the court will not recognize anyone as having a right to 
raise them.
    For example, in the Libyan war case, I came forward with 
both Democratic and Republicans members who said, look, we take 
an oath, and that oath includes upholding the Constitution, 
which includes an obligation, a sacred one, to declare war. We 
were denied that right, and so we have standing.
    Senator Paul. Is the standing issue a problem at every 
level, district court, appellate court, and at the Supreme 
Court?
    Mr. Turley. It is, and the court on that occasion said no. 
When I pressed the court, saying then we have here an 
immaculate violation of the Constitution, literally no one can 
stop an undeclared war, even though the Framers considered this 
one of the great violations they sought to avoid.
    Now, when I went back to the court, when I represented the 
House of Representatives as a body, there was a fierce level of 
litigation, but we won that standing battle. The court accepted 
that as a representative of one of the House, my clients would 
have standing.
    I really believe that----
    Senator Paul. Then did it go beyond the district court or--
--
    Mr. Turley. It went to the court of appeals and eventually 
it ultimately proved moot because of the changes we----
    Senator Paul. You did not lose on standing.
    Mr. Turley. We did not. We won on standing, and that 
thankfully is still there. But I believe legislative standing 
would solve a lot of this problem if Members of Congress were 
recognized as having skin in the game.
    Senator Paul. But it sounds like it is overwhelming within 
the Federal court structure that both precedent and opinion 
will not change unless all of a sudden the majority of the 
Supreme Court sort of set a new way on standing?
    Mr. Turley. That is not impossible. The fact is this is a 
creation of the courts, and it can be undone by the courts. But 
it is not working.
    Senator Paul. In Hampton v. United States, they set forth, 
like a lot of things the Supreme Court does, and said you are 
not supposed to do something, well, you can do it if it is 
intelligible or reasonable, and we get all these extra 
doctrines added in, which I think basically dilute what you 
were not supposed to do once upon a time, according to the 
Constitution. But in that they said you cannot delegate your 
war-making authority, but you can give up some of it if you 
have an intelligible principle upon which to act. Have there 
been further decisions in that vein? Is that sort of a last 
standing precedent as far as this goes with war powers? Are 
there other courts cases that we can look to that are 
instructive in this? We will start with Professor Turley and 
then Judge Napolitano.
    Mr. Turley. Actually, I think there is some reason to be 
hopeful, particularly in the war powers area, but also more 
generally in terms of separation of powers. I had the honor of 
testifying in the Gorsuch confirmation hearing, and one of the 
things I said about Justice Gorsuch as a nominee is that he had 
a certain refreshing understanding of the separation of powers, 
and some people view him as a textualist in that sense. But we 
really cannot change the center of gravity here and move it 
back toward the legislative branch, because right now we have a 
dangerous instability, and so far Madison--you will never hear 
me say this in a given day, but I will say it here. Madison may 
have been wrong. He was proven wrong by members of this 
institution when he said that ambition would fight ambition. He 
believed that you all would be just jealous over your inherent 
authority, you would not let anyone take it away. But this 
institution has really shattered that assumption.
    Senator Paul. Certainly there is ambition. It is just 
misplaced. [Laughter.]
    Judge Napolitano. Maybe Madison meant courage, because the 
Congress has really lacked the courage. Those of you who are 
here today have the courage to say to the executive, ``You have 
to stop.'' I mean, the most frequently cited, at least until 
recently, Justice in American history, Benjamin Cardozo once 
said, ``Where there is a wrong there is a remedy,'' except when 
the President wages war and there is nobody who can get into 
court to challenge him. Professor Turley is living proof of 
that; he has had some unique successes. Congress has to write 
the legislation, whether it is on standing or whether it is no 
President shall engage in any act of violence, whether by 
people in uniform or not, except in accordance with Article I.
    Senator Paul. Right. It is easy for us to deflect and say, 
the court should allow standing and the court should fix this, 
when in reality we probably need to look in the mirror and 
aggressively use our ambition to take our power back.
    We have talked about the delegation. We are giving up 
authority that was constitutionally given to us. I think there 
is a slightly separate issue that goes to constitutionality as 
well, and that is, changing something that can only happen by a 
positive affirmative vote of a majority to something that can 
only be stopped by a two-thirds vote of disapproval. I think is 
important to look at this, like on spending bills, Congress is 
supposed to spend bills. The President cannot spend any money 
unless a majority of us give him the money to spend. That is 
the way it goes. It has to be a majority. It would be like us 
saying to the President, ``You can spend all of the money, and 
the only way we can stop you from spending the money would be 
by a two-thirds vote.'' Who in the world would think that that 
was possibly constitutional?
    But I guess my question is this: Would that be a separate 
constitutional issue from the idea of delegation of authority? 
Because what we are actually doing is switching something. The 
Constitution has certain things that are done by majority vote 
affirmatively, actually, almost everything is affirmative, but 
then there are some things that are supermajority. Are we not 
just changing the Constitution? It is unconstitutional because 
there was a change. It is not necessarily a delegation but 
actually a change in the mechanism of the way the Constitution 
works. Professor Turley.
    Mr. Turley. It is certainly a change. The Constitution is 
quite clear. You need the authority of Congress to go to war. 
This proposal gives you a post hoc measure, which we all 
understand will never occur. It is going to be very hard to get 
a veto-proof majority to take the name of an accused terrorist 
group or nation off that list. It is going to be virtually 
impossible to do that, but it does not even matter how you feel 
about the logistics or the likelihood. It is in direct 
contradiction of the Constitution, and it is a bizarre notion. 
As you said, if my two boys here came to me and said, ``Look, 
instead of my asking for the credit card, just give me your 
credit card and you can stop me when you see expenses get too 
high.''
    Judge Napolitano. Is that not what happens? [Laughter.]
    Mr. Turley. I think we would look at them and go, ``Well, 
that would not be a really smart idea.''
    What is weird about all this is that the Framers were 
right, that is, everything we are talking about right now 
proves that they were right. They were right about war. They 
were right about appropriations. They really did know about 
human nature in that sense.
    Judge Napolitano. Look, the imposition of the supermajority 
is profoundly unconstitutional. The question is getting a court 
to declare it as such, which is nearly impossible.
    Senator Paul. Or us grabbing it back. I have another 
question, but I have gone over time, and I wanted to see if 
Senator Peters had any--are you good?
    The last question I wanted to bring us was something that 
Mr. Anders brought up, and I think this is an important point I 
had not thought of until I read his statement. One, it is a 
real problem that associated forces are sort of out there and 
the President will define what they are in the future and then 
we can only stop him with a two-thirds vote. But it is also an 
interesting question that you bring up that associated forces 
are not defined to be foreign enemies necessarily. It could be 
a domestic group that you do not like that could now be 
associated forces. You could see how, you really can imagine 
groups--we will not go into all the imaginings of which groups, 
but it could be domestic groups you could say are associated 
forces. Your point is that the indefinite detention of citizens 
that has been legalized through the previous defense 
authorizations could then be applied to vast groups of 
Americans.
    Could you make that a little more clear for us and re-
explain exactly what you mean by that?
    Mr. Anders. Yes. This is a problem with the Corker-Kaine 
AUMF. It was a problem with the NDAA. It was a problem with the 
NDAA detention provisions. It was a problem that the Senate by 
vote refused to fix, despite the votes of people sitting on the 
dais who voted to protect American citizens there. But there is 
no prohibition in the Corker-Kaine AUMF from designating an 
American group, American citizens, or an American individual 
from being an associated force that the President could decide 
on his or her own is an enemy of the United States.
    Similarly, there is no prohibition in the Corker-Kaine AUMF 
from designating the United States as a place where military 
force can be used.
    Now, we take it for granted because of Posse Comitatus, 
which is probably more limited than the kind of legend around 
it makes it seem.
    Senator Paul. Posse Comitatus limits Federal officers 
from--or the Army from operating domestically?
    Mr. Anders. That is right, for law enforcement purposes.
    Senator Paul. I guess one of the questions would be: Who is 
the Army and who is intelligence officers or homeland security 
police? Are they the Army? Are they limited by Posse Comitatus?
    Mr. Anders. That is right. But in this instance, there is 
nothing in the Corker-Kaine AUMF that says that the United 
States cannot basically become a battlefield. This is something 
that came up during the debate around the detention provisions 
in 2011 with Senator Graham going to the Senate floor saying 
that the United States can be a battlefield.
    This is a real problem. There have been United States 
citizens that have been droned accidentally, droned on purpose. 
As you know, Mr. Chairman, there have been United States 
citizens that have been put in indefinite military detention. 
These are not theoretical problems.
    Now this is one aspect, of course, of far bigger problems 
with the Corker-Kaine AUMF, but this is one that I think, 
especially as we noticed there was kind of tucked in there with 
this innocuous name, just saying that these provisions of the 
NDAA are getting amended by adding the name of the new AUMF 
into it. It is a broad new authority that would be handed over 
to the military.
    Senator Paul. I know Judge Napolitano has a plane to catch. 
If you want to escape, we are going to let you escape. But I 
know Senator Sanders had a few more minutes of questions. I am 
going to leave that up to you whether you can stay or go.
    Senator Sanders. Very briefly, I apologize but I had a pre-
scheduled meeting that I had to be in, and thank you very much 
for your excellent testimony.
    Let me ask you this question, and you may well have gone 
over it when I was not in the room. When we talk about giving 
the President today virtually complete authority, if we read in 
the paper that the President decided to bomb someplace 
tomorrow, nobody would blink an eye, right? That is what we 
have seen for decades. You talk about the precedential impact 
of allowing Presidents to do this. What does that mean, above 
and beyond wars, above and beyond abrogating the Constitution 
of the United States, what does it mean to our quality of life 
in this country?
    Judge Napolitano. Oh, I think it is the fact that we are 
having this kind of a conversation about whether the President 
could kill Americans in America or whether the President can 
engage in perpetual war, no matter how noble he believes that 
cause is, speaks volumes about how low we have sunk with 
respect to culture, morality, and fidelity to first principles 
in the Constitution, Senator Sanders.
    Senator Sanders. OK.
    Mr. Turley. I think that there is really a twofold problem 
here. One is that, Benjamin Franklin, as you, I am sure, 
recall, at the convention was asked by Mrs. Powell, ``What was 
it that you have wrought? What have you created?''
    Senator Sanders. Is that really true, by the way? Did he 
really say that?
    Mr. Turley. That is a fact that I do not want to check.
    Senator Sanders. Or is that fake news? I do not know.
    Judge Napolitano. Only Jonathan believes that actually 
happened.
    Mr. Turley. He said, ``It is a Republic if you can keep 
it.'' That is the problem with being in perpetual wall, is that 
my boys have never lived in a country that has not been at war. 
Both of them have literally never spent a day of their lives 
when we have not been at war. It becomes a natural State. The 
example of that is one of the most chilling things I saw in my 
lifetime was when Eric Holder went to my alma mater law school 
to announce the kill policy of the Obama Administration, and 
said that the Administration was now asserting the right to 
kill an American citizen on the President's sole authority, 
without charge, without conviction, and that he believed that 
authority was inherent in Article II. Instead of having any 
objections, a roomful of leading law professors and judges 
applauded an Attorney General saying, ``The President has the 
inherent right to kill any of you.''
    The reason this is dangerous is take a look at the OLC 
opinions that we talked about recently. In the OLC opinion, 
they argued the President had unilateral authority to go to war 
without the approval of Congress because of ``the historical 
gloss'' of past wars. What has happened is that this body, 
because it has acquiesced for so long, that is now being used 
as an interpretive tool----
    Senator Sanders. That is the precedent that they are using.
    Mr. Turley. That is right.
    Judge Napolitano. Yes.
    Mr. Anders. Senator Sanders, I was really struck by 
something you said earlier, which was to talk about kind of 
what this is like, what this is all about in reality as opposed 
to theory.
    Senator Sanders. Right.
    Mr. Anders. I do think that one of the dynamics around this 
discussion about putting together a new AUMF is that this has 
become kind of a lawyer's game about law, right? It is like one 
big logic game. It is telling here, although I do not want to 
be off this panel, right? The three lawyers here on this panel, 
the one, literally one hearing in front of the Senate Foreign 
Relations Committee was two lawyers there. The earlier versions 
of this, which came out of some of the Lawfare blog writers and 
thinkers there, there were panels both in the House and the 
Senate earlier, there were all lawyers on those. A lot of it 
just gets tossed around as we have not done this in 17 years, 
so how do we rearrange the words on the page?
    Senator Sanders. Right.
    Mr. Anders. One of the things that we have been trying to 
bring home to people in talking about the Corker-Kaine AUMF is 
without even going to new groups, it has Al-Shabaab and it has 
Somalia, right? I have a 16-year-old, too. Do I want my 16-
year-old going to war against Al-Shabaab in Somalia? My son 
probably cannot find Somalia on a map, and probably very few 
people even in this room know who Al-Shabaab is. But this 
basically would be Congress. Now, that is not even like 
turning--what the President comes up with.
    Senator Sanders. Right.
    Mr. Anders. This would be Congress saying the United States 
can go to war against Al-Shabaab in Somalia. That does not mean 
just sending a drone there, here and there. That means if we 
want to--if the President wants to send 200,000 troops there 
and go in all-out house-to-house fighting, as we did in 
Afghanistan and Iraq, we could do that.
    Senator Sanders. All right. My time is expiring. Senator 
Paul, thank you very much for calling this hearing. I thought I 
would miss some of it, but what I heard was just really very 
important, and I want to thank all three of you for your 
efforts. Thanks for being here and thanks for all you are 
doing.
    Senator Paul. To put a human face on this, you asked the 
families of the four soldiers who died in Mali chasing a 
herdsman, should we have discussed whether we needed to chase 
that herdsman, what that herdsman's threat to our national 
security was? What kind of war is going on in Mali? We have had 
no hearings on a war in Mali. In fact, a prominent member of 
the Senate Armed Services Committee said, ``Mali? I did not 
know we had 1,000 soldiers there.'' That is very worrisome that 
the people who are supposed to be informed, that are supposed 
to be debating whether our sons and daughters die in foreign 
wars are not even debating it at all. We have completely 
abdicated it. There is a bipartisan group of us who would like 
to grab that back, but I can tell you, we are in the minority.
    We will finish with this last question. The majority of the 
Senate--and I think Senator Sanders would agree with me--
actually do believe in unlimited Article II authority on both 
sides of the aisle, maybe more so on my side of the aisle, but 
even some on the other side of the aisle do believe that there 
is unlimited Article II authority. In fact, I have heard this 
said many times, the only check we have is the power of the 
purse. I say, ``Well, that is one check, but that is not 
the''--we have a check on the initiation of war and then on the 
continuation through spending. But it is virtually impossible 
to stop funding when a war is over there, because people say, 
``Well, you are not going to fund our young men and women. You 
are not going to give them the arms to defend themselves. How 
can you do this?''
    Even in Vietnam, which was so incredibly unpopular, I think 
there was finally a funding vote in committee. I think Senator 
Leahy was there, he tells the story about being there and 
voting, it was 1974 or almost 1975, by the time we had the 
courage in one committee to vote to stop funding.
    My question, though, is: Is there any historical evidence 
that our Founders believed in unlimited Article II authority or 
that the declaration of war is just now an anachronism that our 
Founding Fathers did not find to be important? We will start 
with Judge Napolitano and work our way down.
    Judge Napolitano. That is a short answer. There is no 
evidence that the Founding Fathers believed in unlimited 
Article II authority, and there is an abundance of evidence, 
which Professor Turley characterized in his opening statement, 
that they did not.
    Mr. Turley. Yes, there are plenty of systems that give that 
type of authority. It just does not happen to be ours. The 
Framers were quite clear to the contrary. This is one of the 
few areas where there was not much of a debate. In one case 
there was a single person who was suggesting this view, that a 
President should have this authority, and he did not get a 
second on his motion.
    My preference is that if you want to gut Article I, Section 
8, do it, but do not blame the Framers, and do not pretend that 
it is in compliance with the Constitution.
    Mr. Anders. Madison has gotten a lot of attention today, so 
just to put out Thomas Jefferson, give him a little air time--
--
    He wrote, ``An allocation of war powers to Congress 
provides an effectual check to the dog of war by transferring 
the power of letting him loose from the executive to the 
legislative body.''
    Senator Paul. I think this has been a great hearing. 
Thanks, everyone, for coming. If we are still at war 17 years 
from now, if Kaine-Corker passes and there are no limits on 
war, let it be known that there were at least some of us who 
warned. Thank you.
    Mr. Anders. Thank you.
    Mr. Turley. Thank you.
    Judge Napolitano. Thank you, Senator.
    [Whereupon, at 4:08 p.m., the Subcommittee was adjourned.]

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