[Senate Hearing 115-622]
[From the U.S. Government Publishing Office]




                                                        S. Hrg. 115-622

                    USING FORCE: STRATEGIC, POLITICAL,
                        AND LEGAL CONSIDERATIONS

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

                                HEARING


                               BEFORE THE


                     COMMITTEE ON FOREIGN RELATIONS
                          UNITED STATES SENATE


                     ONE HUNDRED FIFTEENTH CONGRESS


                             FIRST SESSION

                               __________

                           DECEMBER 13, 2017

                               __________


       Printed for the use of the Committee on Foreign Relations
       
       
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                 COMMITTEE ON FOREIGN RELATIONS        

                BOB CORKER, Tennessee, Chairman        
JAMES E. RISCH, Idaho                BENJAMIN L. CARDIN, Maryland
MARCO RUBIO, Florida                 ROBERT MENENDEZ, New Jersey
RON JOHNSON, Wisconsin               JEANNE SHAHEEN, New Hampshire
JEFF FLAKE, Arizona                  CHRISTOPHER A. COONS, Delaware
CORY GARDNER, Colorado               TOM UDALL, New Mexico
TODD, YOUNG, Indiana                 CHRISTOPHER MURPHY, Connecticut
JOHN BARRASSO, Wyoming               TIM KAINE, Virginia
JOHNNY ISAKSON, Georgia              EDWARD J. MARKEY, Massachusetts
ROB PORTMAN, Ohio                    JEFF MERKLEY, Oregon
RAND PAUL, Kentucky                  CORY A. BOOKER, New Jersey
                  Todd Womack, Staff Director        
            Jessica Lewis, Democratic Staff Director        
                    John Dutton, Chief Clerk        



                              (ii)        

  


                            C O N T E N T S

                              ----------                              
                                                                   Page

Corker, Hon. Bob, U.S. Senator from Tennessee....................     1


Cardin, Hon. Benjamin L., U.S. Senator from Maryland.............     2


Hadley, Hon. Stephen J., former Assistant to the President for 
  National Security Affairs, Washington, DC......................     5

    Prepared statement...........................................     7


Wormuth, Hon. Christine E., former Under Secretary of Defense for 
  Policy, Washington, DC.........................................     9

    Prepared statement...........................................    11


Bellinger III, Hon. John B., former National Security Council 
  Legal Advisor, Washington, DC..................................    15

    Prepared statement...........................................    15


              Additional Material Submitted for the Record

Letter sent to President Donald J. Trump by Senator Tim Kaine and 
  Congressman Adam B. Schiff regarding the April 6, 2017 strike 
  against the Shayrat Military Airbase in Syria..................    44

                                 (iii)

  

 
                   USING FORCE: STRATEGIC, POLITICAL,
                        AND LEGAL CONSIDERATIONS

                              ----------                              


                      WEDNESDAY, DECEMBER 13, 2017

                                       U.S. Senate,
                            Committee on Foreign Relations,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:33 a.m. in Room 
SD-419, Dirksen Senate Office Building, Hon. Bob Corker, 
chairman of the committee, presiding.
    Present: Senators Corker [presiding], Johnson, Flake, 
Gardner, Young, Barrasso, Isakson, Cardin, Menendez, Shaheen, 
Coons, Kaine, Merkley, Markey, and Booker.

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

    The Chairman. The Foreign Relations Committee will come to 
order.
    I know there is a lot of chatter about most recent events.
    We thank each of you for being here. We have very 
distinguished witnesses today. We thank you for taking the 
time.
    A number of members, both on and off this committee, have 
raised questions about the executive branch authorities with 
respect to war-making. And I think you know we are moving on 
towards an authorization--I hope we begin to socialize with 
others in this hearing, which is not directly related to that, 
I think is of good timing--the use of nuclear weapons, and from 
a diplomatic perspective, entering into and terminating 
agreements with other countries.
    Today we will conclude a series of hearings on these issues 
by examining the many considerations involved in presidential 
decisions to use military force without authorization from 
Congress. Throughout the history of our nation, Presidents have 
decided to deploy troops into hostilities without prior 
authorization from Congress in circumstances ranging from 
small-scale rescue operations to advise and assist missions in 
the support of partner nations and larger-scale military 
action.
    It is in our strategic interest to have a strong commander-
in-chief with the ability to take quick and decisive military 
action. But that authority must be legally sound and checked by 
vigorous oversight and engagement from Congress on behalf of 
the American people.
    The decision to use military force is one of the most 
consequential any President can make and should always be among 
the most carefully considered. As Presidents deliberate whether 
and how to use military force, they take into account a number 
of different factors, and it is these factors--the strategic, 
political, and legal concerns involved with such decisions--
that we will explore with our panel of witnesses today.
    First are the strategic questions. We will look at what 
test the President should use in determining whether to use 
military force and what U.S. interest must be at stake. We will 
also want to examine how Presidents should balance the use of 
force against other options.
    We must also look at the political considerations. Public 
opinion matters for obvious reasons. But when it comes to the 
use of American force, the support of the public and the 
Congress play a key role in our ability to be effective, 
especially when things go wrong. We hope to gain insight into 
how much political support should factor into a President's 
thinking when it comes to using force.
    Finally, we should look at the legal side of this issue. 
The reality is that unless Congress takes the rare step of 
withholding funding, history shows that the President's ability 
to initiate military action without Congress has been extremely 
broad. That said, discussing the legal doctrine regarding these 
questions is a conversation worth having.
    I thank our witnesses for being here today, and I look 
forward to their testimony and responses to our questions.
    And with that, I will turn to my good friend and our 
ranking member, Senator Cardin.

              STATEMENT OF HON. BENJAMIN CARDIN, 
                   U.S. SENATOR FROM MARYLAND

    Senator Cardin. Well, Mr. Chairman, first, thank you for 
convening this hearing. As I said when Secretaries Tillerson 
and Mattis were before our committee, this is perhaps one of 
the most important responsibilities we have in the Senate 
Foreign Relations Committee--to consider circumstances and 
legal authority for sending our men and women into harm's way. 
So thank you very much for this hearing.
    I welcome our distinguished panel. We have some really 
great experts here that I hope will engage us in this 
conversation.
    America faces unprecedented crises around the world, from 
the continuing terrorist threats presented by ISIS and al Qaeda 
and their affiliates to a worsening nuclear crisis with North 
Korea, to the growing proxy fights between Saudi Arabia and 
Iran's destabilizing the entire Middle East.
    President Trump's apparent inclination to use military 
force and to risk war rather than to find diplomatic solutions 
to these crises is troubling. His attitude toward diplomacy 
ranges from disinterest to naivete to actively sabotaging his 
own Secretary of State.
    Finding the proper balance for the authority to use force 
is not unique to this President. The last two Presidents have 
stretched their authorities to the breaking point, especially 
in the use of the 2001 authorization of use of military force, 
which in my view was intended as a necessary, narrow response 
to the 9/11 plotters, most of whom are either dead or in 
custody. And while we can expect that any President will seek 
to stretch his or her authorities, it is also incumbent on 
those of us here in Congress to make sure that we exercise our 
constitutional authorities too when it comes to the use of 
force.
    Secretary Mattis confirmed at our hearing a few weeks ago 
that there is no congressional authority for military action 
against North Korea. But I remain deeply concerned that 
President Trump will decide to preemptive or preventive 
military actions against North Korea that is not justified 
under the circumstances and that Congress has not authorized. 
He might even potentially seek to initiate a nuclear first 
strike, and as borne out by our recent hearing on this issue, 
we would have to rely on the strength of character and bravery 
of those in military responsibility for carrying out that 
attack to question its legality.
    Mr. Chairman, what is also becoming abundantly clear during 
the hearing with the Secretaries of Defense and State is that 
we also need to take stock of what we are already doing. We 
have U.S. troops deployed almost everywhere in the world, 
including in circumstances that would easily involve them in 
the United States in combat as we recently saw in Niger.
    In addition to significant deployments in Iraq, 
Afghanistan, and Syria and major deployments in South Korea, 
Japan, and Europe, U.S. forces have been engaged in 
counterterrorism operations in Yemen, Somalia, Ethiopia, Libya, 
and Chad with extensive advice, train, and capacity building 
efforts in many more.
    A few weeks ago I read in Politico a story that the number 
of U.S. military forces in Somalia has grown this year to over 
500 people with the Pentagon quietly posting hundreds of 
additional special op personnel to advise local forces around 
the country. This committee has jurisdiction for intervention 
abroad. Yet, no additional authority was sought, even as the 
United States doubled its military forces in Somalia, 
potentially placing them in harm's way.
    This is a problem, Mr. Chairman. We have all been seized by 
the tragic loss of U.S. soldiers in Niger, but let us not 
forget that we already have seen similar losses in Somalia. In 
May of this year, a U.S. Navy SEAL was killed while 
accompanying Somalian soldiers in an advise and assist mission. 
The incident marked the first loss of U.S. military personnel 
in Somalia since 18 U.S. soldiers died there in 1993. The Black 
Hawk Down incident had serious consequences for U.S. engagement 
and policy in Somalia, just as the recent incidents in Niger 
and Somalia will impact how we view train, equip, advise, 
assist, and accompanying missions going forward.
    And just last week, the Pentagon acknowledged that there 
are 2,000 forces in Syria. This is nearly quadruple the level 
of 503 authorized by the previous administration. This is yet 
another warning to Congress and the American people that the 
Trump national security team is greatly expanding the 
deployment of U.S. military forces on the ground worldwide with 
minimal congressional consultation, minimal buy-in from the 
American people, minimal limitations, and minimal transparency.
    So as we contemplate the impact of these missions, we must 
engage in a serious gut check and ask ourselves what are the 
consequences of our military personnel being involved in places 
where lethal action seems almost inevitable.
    Mr. Chairman, I think we are seeing that over time a kind 
of gray space is growing, in which a significant and 
consequential use of force results from activities we all 
thought did not constitute the use of offensive military forces 
such as deployment to train and equip other militaries. This is 
either classic mission creep or significant miscalculation 
about the very nature of advise and assist, train and equip 
missions.
    This committee needs to take stock of where we are on two 
fronts. First, what exactly should we be doing now to ensure 
that the President does not engage in military actions that 
Congress has not authorized and that cannot be justified under 
the President's Article II authorities? And second, what 
exactly is the military doing around the world right now in the 
gulf between the mere training and conventional wars, a mission 
that is growing and can be lethal? Both of these issues have 
consequences for our long-term foreign policy goals and 
national security.
    Yesterday, Mr. Chairman, we received the latest report 
submitted every 6 months pursuant to the War Powers Resolution. 
This is a 4-page document updating us on the deployment of U.S. 
armed forces equipped for combat. There are some new things 
compared to the June report. And I think we need to put 
attention to this because the President tells us this is his 
notification.
    A hundred U.S. troops have been deployed to Lebanon to 
enhance the government's counterterrorism capabilities and 
support the anti-ISIL operations. Since the last report, the 
United States forces have conducted a number of airstrikes 
against ISIS terrorists and their camps in Libya. And U.S. 
forces equipped for combat have deployed in the Philippines to 
support counterterrorism operations.
    Folks, these are all new activities, and this notification 
offers us too little information about expanding U.S. military 
operations around the world.
    I think this committee needs to get a more granular 
understanding of these activities, the authorities under which 
they are being done, and the troop distribution numbers in this 
country and other countries around the world.
    When we talk about our role, Congress' role, we are 
inevitably talking about the War Powers Resolution, which has 
been much debated over the years. We need to consider whether 
it is sufficient to deal with the new circumstances as well as 
the current use of military and lethal force or if something 
more is needed.
    I noted with interest the introduction last month of a 
bipartisan concurrent resolution in the House of 
Representatives pursuant to section 5(c) of the War Powers 
Resolution. That resolution would direct the President to 
remove U.S. armed forces from hostilities in the Republic of 
Yemen, except those engaged in operations directed at al Qaeda 
in the Arabian Peninsula or associated forces. This is an 
interesting example of potential ways Congress can assert 
itself in these matters.
    The 9/11 and Iraq AUMFs, the purposes of this passage have 
long been overcome, have now become mere authorities of 
convenience for Presidents to conduct military activities 
anywhere in the world. They should not be used as legal 
justification for the administration's international military 
activities. Nor should Title 10 authorities become authorities 
of convenience for Presidents to conduct lethal offensive 
military activities anywhere in the world.
    I will end by saying that the United States has relied too 
long on military force as the first response to problems of 
terrorism, insurgency, and instability abroad. What makes this 
issue even more urgent is this administration's growing 
reliance on military force while, at the same time, pushing 
dramatic reductions in budgets and resources for diplomacy and 
development.
    It is quite astonishing and deeply troubling, and I think 
the American people need to hear more about it. Diplomacy, 
development, and support for human rights are the critical 
means through which we are safer in the world.
    Mr. Chairman, I look forward to hearing from our witnesses, 
and I really hope we can have a robust discussion as to how 
Congress can assert its proper role.
    The Chairman. Thank you so much.
    Our first witness really needs no introduction. I am 
personally indebted to him for being here today and for all the 
kindness he has shown me since I have been here in the Senate 
and moved along in my understanding of how we deal with these 
issues. I thank him so much for being here.
    So I would like to welcome our former National Security 
Advisor, Stephen Hadley. We are deeply grateful for his 
willingness not only to testify today but for his sage advice 
over the years, as I just mentioned.
    Our second witness is the Honorable Christine Wormuth, 
former Under Secretary of Defense for Policy. Ms. Wormuth is 
currently the Director of the Adrienne Arsht Center for 
Resilience at the Atlantic Council and previously served on the 
National Security Council under President Obama. Thank you so 
much for being here.
    Our third witness is Mr. John Bellinger III, former 
National Security Legal Counsel at the State Department and 
then Legal Advisor. Mr. Bellinger is currently a partner at 
Arnold and Porter in D.C. and has helped us on many occasions.
    We thank all three of you for being here. If you would just 
begin your testimony in the order introduced. I know you 
understand you can summarize in about 5 minutes. We would 
appreciate it. Without objection, any written materials you may 
have will be entered into the record. So with that, Mr. Hadley.

 STATEMENT OF HON. STEPHEN J. HADLEY, FORMER ASSISTANT TO THE 
   PRESIDENT FOR NATIONAL SECURITY AFFAIRS, WASHINGTON, D.C.

    Mr. Hadley. Thank you, Mr. Chairman, Ranking Member Cardin, 
and other distinguished members of the committee. I appreciate 
this opportunity to appear before you this morning on this 
important subject.
    The decision to use military force is perhaps the most 
consequential decision this nation can make. It can have 
enormous consequences for the nation's security, prosperity, 
and role in the world. It can have enormous consequences for 
other countries and their peoples. But most of all, it has the 
most serious consequences for our country's most precious 
resource, the lives of its citizens. The decision to use 
military force is the decision to put those Americans serving 
in our military in harm's way, at risk of death and serious 
injury. Such a decision must be made with the greatest 
seriousness, consideration, and care.
    It is a cautionary tale for any President who is 
considering the use of military force that since World War II, 
the only war our nation has fought that was as popular with the 
American people at the end as it was at the beginning was the 
Gulf War of 1990 to 1991. This was because military force was 
used in that conflict in service of a critical national 
purpose, the objective of the military operation was clear, the 
strategy to achieve that objective was sound, the military 
resources committed to the effort matched the strategy, a 
coalition of U.S. allies and affected regional states were 
involved, and the objective was achieved in relatively short 
order, and the resulting peace was sustainable. Virtually every 
other military operation has lacked one or more of these 
elements of success.
    Perhaps the most challenging element from a policy 
perspective is developing a sound strategy that will achieve 
the objective. This was brought home to me in a conversation 
with President George W. Bush in January of 2007, just days 
before he was to announce the change of strategy and surge of 
additional forces into Iraq. After being assured once again 
that his national security team believed that the new strategy 
would achieve its objective, he made a simple request: if you 
ever change your mind on this point, you must let me know, for 
I cannot send men and women in uniform into war if we do not 
have a strategy that will win.
    This is the mindset that the nation must have when it 
decides to use military force. It must have a strategy to 
succeed. If it does not, then our military should not be sent 
to war. And if our military is sent into combat, then it should 
have the resources, rules of engagement, and support that will 
allow it to succeed. The military instrument is too precious to 
be used just to avoid the consequences of a policy failure.
    And the same consideration should apply to Americans who 
risk their lives serving as the nation's diplomats, 
intelligence officers, development professionals, and peace-
builders.
    This is especially true because often their work is 
essential to consolidating the success achieved by our 
military. Many of the nation's efforts overseas have failed on 
exactly this point. The military objective has been achieved, 
but we have failed in helping post-conflict societies 
consolidate the military victory and achieve a stable and 
sustainable peace.
    Military planning needs to take this into account. John 
Allen, the retired military general officer who led U.S. forces 
in both Afghanistan and Iraq, has made this point in reflecting 
on lessons learned from these two conflicts. Planning for a 
military operation needs to begin with the desired end state. 
In military parlance, that means starting with phase 4 and 
working backwards towards phase 1. Whatever is done militarily 
must contribute to the desired end state.
    And this planning effort must involve from the start 
civilian elements of the U.S. Government in developing an 
integrated strategy. A stable and sustainable peace that will 
not give rise to threats to American lives and interests often 
will require helping local actors develop institutions of good 
governance, economic development, and security. This is the 
work of civilian actors, every bit as important as our 
military.
    Because of the importance of the decision, because it 
involves the lives of Americans, the use of military force must 
have the support of Congress and the American people. Congress 
is critical because it both reflects and shapes public opinion. 
But Congress needs to decide what role it wants to have in the 
decision to use military force and reach a mutual understanding 
with the President, whoever he or she may be.
    It is now established practice that there is some level of 
the use of military force that the President can take without 
prior congressional approval. There are numerous precedents 
under both Democratic and Republican Presidents. At the same 
time, it has been the practice of both Democrats and Republican 
Presidents to bring major military operations to the Congress 
first. Problems arise when the line between those alternatives 
is not observed.
    My own view is that for a major military operation that 
carries a risk of American military casualties, a high risk of 
civilian casualties, especially among U.S. friends and allies, 
has major geopolitical implications for American interests and 
position in the world, and in which American friends and allies 
have a major stake, prior congressional approval would be the 
wiser course. And any such action should be legal under both 
domestic and international law.
    Thank you very much.
    [Mr. Hadley's prepared statement follows:]


              Prepared Statement of Hon. Stephen J. Hadley

    Chairman Corker, Ranking Member Cardin, and other distinguished 
members of the committee. Thank you for the opportunity to appear 
before you this morning on such an important subject.
    The decision to use military force is perhaps the most 
consequential decision that this nation can make. It can have enormous 
consequences for our nation's security, prosperity, and role in the 
world. It can have enormous consequences for other countries and their 
peoples. But most of all, it has the most serious consequences for our 
country's most precious resource--the lives of its citizens.The 
decision to use military force is the decision to put those Americans 
serving in our military in harm's way--at risk of death and serious 
injury. Such a decision must be made with the greatest seriousness, 
consideration, and care.
    It is a cautionary tale for any President who is considering the 
use of military force that since World War II the only war our nation 
has fought that was as popular with the American people at the end as 
it was at the beginning was the Gulf War of 1990-1991. This was because 
military force was used in that conflict in service of a critical 
national purpose, the objective of the military operation was clear, 
the strategy to achieve that objective was sound, the military 
resources committed to the effort matched the strategy, a coalition of 
U.S. allies and affected regional states was involved, the objective 
was achieved in relatively short order, and the resulting peace was 
sustainable. Virtually every other major military operation has lacked 
one or more of these elements of success.
    Perhaps the most challenging element from a policy perspective is 
developing a sound strategy that will achieve the objective. This was 
brought home to me in a conversation with President George W. Bush in 
January of 2007, just days before he was to announce the change of 
strategy and ``surge'' of additional forces into Iraq. After being 
assured once again that his national security team believed that the 
new strategy would achieve its objective, he had a simple request: ``if 
you ever change your mind [on this point], you must let me know--for I 
cannot send men and women in uniform into war if we don't have a 
strategy that will win.''
    This is the mindset that the nation must have when it decides to 
use military force. It must have a strategy to succeed. If it doesn't, 
then our military should not be sent to war. And if our military is 
sent into combat, then it should have the resources, rules of 
engagement, and support that will allow it to succeed. The military 
instrument is too precious to be used just to avoid the consequences of 
failure. It should only be used to achieve success and a military 
objective in service of a critical national purpose. Borrowing from the 
Star Wars movie ``The Empire Strikes Back,'' when it comes to the use 
of military power, the Yoda rule applies: ``Do or do not. There is no 
try.'' The lives of our Americans in uniform are simply too precious.
    And the same consideration should apply to Americans who risk their 
lives serving as the nation's diplomats, intelligence officers, 
development professionals, and peace-builders. They too should be used 
in service of a critical national purpose, with clear objectives, a 
sound strategy to achieve those objectives, and with adequate resources 
matched to the strategy.
    This is especially true because often their work is essential to 
consolidating the success achieved by our military. Many of the 
nation's efforts overseas have failed on exactly this point. The 
military objective has been achieved. But we have failed in helping 
post-conflict societies consolidate the military victory and achieve a 
stable and sustainable peace. This is not U.S. nation-building. A 
nation can only be built by the people who live there. But it is 
helping those people create the institutions that will prevent their 
nation from being used to threaten the United States and its friends 
and allies.
    Military planning needs to take this into account. John Allen, the 
retired Marine general officer who led U.S. forces in both Afghanistan 
and Iraq, has made this point in reflecting on lessons learned from 
these two conflicts. Planning for a military operation needs to begin 
from the desired end-state. In military parlance, that means starting 
with Phase IV and working backwards to Phase I. Whatever is done 
militarily must contribute to the desired end state.
    This planning effort must involve from the start the civilian 
elements of the U.S. Government in developing an integrated strategy. A 
stable and sustainable peace that will not give rise to threats to 
American lives and interests often will require helping local actors 
develop institutions of good governance, economic development, and 
security. This is the work of civilian actors every bit as important as 
our military.
    It is often said that military force should only be used as a last 
resort--after all other options have been tried, exhausted, and failed. 
The sentiment behind such statements is understandable, laudable, and 
worthy of respect. But it suggests a false ``either/or'' choice between 
military force and every other instrument of national power and 
influence. Yet we know from practical experience that sometimes only 
the coordinated use of all elements of national power--diplomatic, 
economic, and military--as part of an integrated strategy can achieve 
an important national objective. As many of our nation's top diplomats 
have been quick to say, the threat or judicious use of military power 
is often an essential element of a successful diplomatic initiative.
    Because of the importance of the decision--because it potentially 
involves the lives of American citizens--the use of military force 
needs the support of the Congress and the American people. Congress is 
critical because it both reflects and shapes public opinion. Congress 
needs to decide what role it wants to have in the decision to use 
military power and reach a mutual understanding with the President 
whoever he or she may be.
    It is now established practice that there is some level of use of 
military force that a President can take without prior Congressional 
approval. There are numerous precedents under both Democratic and 
Republican presidents. At the same time, it has been the practice of 
both Democratic and Republican presidents to bring major military 
operations to the Congress first. Problems arise when the line between 
these two alternatives is not clear or not observed.
    For example, take the decision by President Obama in 2013 to seek 
Congressional approval before ordering a military strike in Syria over 
its use of chemical weapons. I supported President Obama's decision to 
use force and to bring the matter first to the Congress. But Jim 
Jeffrey, a distinguished retired U.S. ambassador, has argued that the 
planned military operation was of a scope and scale that many previous 
presidents had undertaken without prior Congressional approval. The 
last previous military operation brought to Congress for its prior 
approval had been President George W. Bush's decision to go into Iraq 
in 2003. Jim believes that many Americans assumed that because the 
Syrian action was being taken to Congress for prior approval, President 
Obama must have had in mind a military operation of similar scale and 
scope. President Obama clearly did not, but the confusion may have 
produced a significant portion of the opposition to what President 
Obama proposed to do.
    Congressional leadership and President Trump should come to an 
understanding of what is the line between what proposed military 
operations should be brought to the Congress for prior approval and 
what should not. Going into this conversation, Congressional leaders 
will have in mind preserving Congressional prerogatives and its role in 
the use of force. But it will also have to consider that in some cases 
it may prefer not to be implicated in the decision itself so as better 
to exercise disinterested after-the-fact oversight of the decision 
based on the results. The President will also be protective of his 
prerogatives as Commander in Chief and Chief Executive. But he will 
have to consider his need for Congressional funding for any military 
operation and the benefit of Congressional support in winning and 
maintaining the long-term support of the American people for the 
military effort.
    My own view is that for a major military operation that carries a 
high risk of American military casualties, a high risk of civilian 
casualties especially among U.S. allies and friends, that has major 
geopolitical implications for American interests and position in the 
world, and in which American friends and allies have a major stake, 
prior Congressional approval would be the wiser course. And any such 
action should be legal under both domestic and international law.
    In making a decision to use military force, the President and the 
Congress must of course give due regard to public sentiment. But the 
decision cannot be dictated by the most recent public opinion poll. The 
American people are not isolationist. But they rightly give priority to 
the work that needs to be done here at home to ensure security and 
prosperity. They will support a military operation overseas but only if 
their political leaders make the case: what critical national purpose 
is involved, why is military action necessary, what is the objective of 
the military action, what is the strategy for achieving that objective, 
what other countries are doing to help, and why it is critical that the 
operation succeed.
    History shows that if the President is willing to lead, win the 
political and resource support from the Congress, and make the case for 
the military action, the American people generally will support it.
    Maintaining public support will require constant attention. I once 
asked President George W. Bush why he insisted on giving so many 
speeches on the war on terror. He made the point that when our military 
is engaged, the President needs continually to explain what is at 
stake, what is the strategy, why it will succeed, and why this is 
critical to the well-being of our nation. In doing so, the President 
also shows both his commitment to the military effort and his 
confidence in it. This is something that our military personnel and 
their families need to hear, and that our friends, allies, and 
adversaries all need to hear. The longer the military effort will take, 
the more important is the communications effort.
    But in the end the American people will judge the military effort 
by its success or lack thereof. Support is lost if the public does not 
see progress, loses confidence in the strategy, and/or doubts the 
President's ability to execute the strategy successfully. A seemingly 
endless military operation producing little in the way of success and a 
constant stream of casualties will, over time, cause the public to 
question the whole premise of the operation. That is why the oversight 
role of Congress is so important in holding the President's feet to the 
fire on the purpose, objective, strategy, and execution of any major 
military operation. The American people should expect no less.


    The Chairman. Thank you very much.
    Christine?

STATEMENT OF HON. CHRISTINE E. WORMUTH, FORMER UNDER SECRETARY 
            OF DEFENSE FOR POLICY, WASHINGTON, D.C.

    Ms. Wormuth. Good morning. Thanks, Chairman Corker, Ranking 
Member Cardin, and members of the committee, for the 
opportunity to be here this morning to talk with you about such 
an important issue.
    I fully agree with Mr. Hadley that the decision to use 
force is one of the most consequential our leaders can make, 
with implications not just for our military forces, but our 
public, of course, and as well, countries around the world.
    Throughout history, there are many examples of countries 
that decided to use force to address an immediate threat in the 
hopes of bringing about a clear resolution, only to find 
themselves still engaged militarily in the same place years, if 
not decades later. I suspect when Truman made the decision to 
come to South Korea's aid in the 1950s, he did not envision the 
possibility that we would still have troops on the peninsula in 
2017.
    Similarly, history is full of examples of countries that 
decided to use force thinking that they would prevail quickly 
only to find that wars can drag on longer and be far costlier 
than originally thought. In 1914, Kaiser Wilhelm and his 
generals thought that they could make quick work of France and 
Russia and keep Britain out of the war altogether, but they 
were defeated 4 long and bloody years later in World War I. And 
we in the United States only have to look at our more recent 
wars to see how they can defy their original timelines, whether 
it is in Vietnam, Iraq, or Afghanistan.
    Clausewitz reminds us that war is unpredictable. He 
cautions us that no one should start a war, or rather, no one 
in his senses ought to do so, without first being clear in his 
mind what he intends to achieve by that war and how he intends 
to conduct it.
    When deciding to use force, a nation and its leaders must 
think deeply about what national interests are at stake, 
whether those interests are sufficiently vital to merit putting 
lives at risk, and whether there is a strategy to achieve the 
desired goal. There has to be a clear understanding of what the 
strategic objectives are, a vision for how all of the 
instruments of power, not just the military, but also our 
diplomatic, economic, and other instruments, can come together 
and be used and confidence that those instruments of power are 
going to be sufficiently resourced to be able to achieve the 
goal.
    We only have to look at our ongoing operations in the 
Middle East and Afghanistan to realize that aligning all of 
these elements of strategy is much easier said than done.
    In the complicated security environment we now face, 
policymakers may find it tempting to reach for the most well-
resourced tool in our foreign policy toolkit, the U.S. 
military. Our military, as you all know, is extraordinarily 
capable and compared to State, AID, and other elements of our 
government, it is also well-funded.
    But almost every current security challenge we face 
requires more than kinetic action. As Mr. Hadley has said in 
his testimony, force alone cannot carry the day. I personally 
worry that the U.S. military has been carrying a very heavy 
burden for many years now and that an imbalance has kind of 
crept into how we address our foreign policy challenges as a 
result.
    While we need to bring all of the instruments of national 
power to bear on the security challenges we face, there are 
certainly going to be times when we are called to use force, 
and both Republican and Democratic Presidents have sometimes 
decided to do that without seeking prior approval from 
Congress.
    At the same time, when a President is contemplating a major 
or prolonged use of force, the President generally has come to 
Congress in advance. President Bush did so before he sent the 
military into Afghanistan and Iraq. President Obama sought 
congressional approval when it came to strikes in Syria in 
2013. And in the context of North Korea's continued effort 
today to develop a capability to strike the United States with 
a nuclear ICBM, military options to fully address that threat 
would likely rise, in my view, to the level that has typically 
triggered Presidents to seek advanced congressional 
authorization.
    But there is not an established rule or set of criteria for 
when a potential use of force crosses the threshold requiring 
the President to come to Congress in advance. The Constitution 
gives both branches of government important roles in decisions 
about the use of force, to include giving Congress the power of 
the purse. But there are many different factors that go into 
how exactly each branch carries out its roles at any given 
time.
    Despite these challenges, seeking congressional support in 
advance for major or prolonged uses of force is sound. 
Clausewitz comes to mind here as well, reminding us of the 
importance of public support, both when deciding to go to war 
but also retaining public support in order to finish the job.
    The debate about whether the 2001 AUMF should be replaced 
with a new authorization is not just about whether it can be 
credibly interpreted to encompass what we are doing today to 
fight ISIS and other similar groups. But it is also, it seems 
to me, about whether Congress is adequately involved in the 
current decisions to use force and is conducting sufficient 
oversight on behalf of the American people. I think this is a 
very healthy and important debate, and I support this 
committee's effort to draft a new AUMF that would clearly 
address the challenges we are facing.
    In today's environment, conflicts seem less black and white 
than in the past. The fight against ISIS and al Qaeda is a 
transregional fight, and it is likely to be generational. The 
bad guys are not wearing uniforms, and information technology 
and social media has extended the reach of adversaries and 
allies alike in profound ways. And as a result, I think it is 
essential that Americans understand and support our activities 
overseas. Talking to Americans about what is at stake in the 
world, why the U.S. is doing what it is doing, and why it 
matters will help the public decide what engagements to support 
with what resources and for how long. I think most Americans 
want our country to continue to be a leader in the world, but 
in ways that are fair and make sense and do not get in the way 
of our ability to address problems here at home. They are not 
going to give the President or Congress a blank check, and as a 
result, I think our leaders need to talk to them on a regular 
basis. This hearing is a great opportunity to do that, and I 
commend you for holding it.
    [Ms. Wormuth's prepared statement follows:]


            Prepared Statement of Hon. Christine E. Wormuth

    Good morning. Thank you, Chairman Corker, Ranking Member Cardin and 
members of the committee, for the opportunity to testify this morning.
    It is an honor to appear before you today to discuss such a 
critical issue. The decision to use military force is one of the most 
consequential decisions our leaders can make, with implications not 
just for our military, but also for our diplomats and other civilians 
who work overseas, our allies and friends around the world, and of 
course the American public.
    Since the September 11, 2001 attacks on the United States, we have 
used military force in many different places around the world, 
beginning with Operation Enduring Freedom in Afghanistan and then in 
Operation Iraqi Freedom, but more recently in Libya, Syria, Yemen, and 
Somalia just to name a few.
    Throughout history, there are many examples of countries that 
decided to use force to address an immediate threat in the hopes of 
bringing about a clear resolution, only to find themselves still 
engaged militarily in the same place years, if not decades later. I 
suspect when President Truman made the decision to come to South 
Korea's aid in 1950, he did not envision the possibility that the 
United States would still have large numbers of troops on the Korean 
peninsula in 2017.
    Similarly, history is also full of examples of nations deciding to 
use force thinking they would prevail relatively quickly and easily 
only to find that wars can drag on longer and be far costlier than 
originally thought. Kaiser Wilhelm and his generals thought they could 
make quick work of France and Russia, and keep Britain out of the war 
altogether but were defeated in World War I four long and bloody years 
later. We in the United States have seen our own more recent wars defy 
their original timelines, whether in Vietnam, Iraq or Afghanistan.
    Clausewitz reminds us that war is unpredictable. Because war rarely 
goes as planned and can be extremely costly in both blood and treasure, 
he cautions us that ``no one starts a war--or rather, no one in his 
senses ought to do so--without first being clear in his mind what he 
intends to achieve by that war and how he intends to conduct it.''
    When deciding whether to use force, a nation and its leaders must 
think deeply about what national interests are at stake, whether the 
interests at stake are sufficiently vital as to merit using force and 
putting lives at risk, and whether there is a viable strategy to 
achieve the desired goal. In terms of strategy, there needs to be a 
clear understanding of the strategy's objectives, a vision for how all 
instruments of power--military, diplomatic, economic and so on--will be 
used to achieve the objectives, and confidence that those instruments 
of power will be sufficiently resourced.
    One only has to look at our ongoing operations in the Middle East 
and Afghanistan to realize that aligning each of these elements of 
strategy is much easier said than done, particularly in today's world 
which is much more complicated than the Westphalian world of Carl von 
Clausewitz. The United States still faces nation state adversaries such 
as North Korea and Iran, but we also find ourselves in hybrid wars 
against non-state actors like ISIS and we are dealing with gray zone 
tactics in Ukraine and places like the South China Sea.
    In this complicated security environment, policy makers may find it 
tempting to reach for the most well-resourced tool in the U.S. foreign 
policy tool kit--the U.S military. Our military is extraordinarily 
capable, and compared to State, USAID and other parts of our 
government, it is also well funded. But almost every current security 
challenge we face requires more than just kinetic action. For success 
to be sustainable, we need diplomats, development and economic experts, 
and civil society and judicial experts to work with countries on 
critical issues like reconstruction, fighting corruption, strengthening 
governance and so on. Force alone can't carry the day. I worry that the 
U.S. military has been carrying a heavy burden for many years now, and 
that an imbalance has crept into how we address foreign policy 
challenges.
    While we need to bring all of our instruments of national power to 
bear on the security challenges we face, there certainly will be times 
when our strategy calls for us to use force, and there are many 
examples of both Republican and Democratic presidents deciding to use 
force without prior approval from Congress. President Reagan did so in 
Libya in 1986, President Clinton did in Kosovo in 1999, President Obama 
authorized force in Libya in 2011, and President Trump authorized 
strikes in Syria earlier this year in response to its latest use of 
chemical weapons against its own people.
    At the same time, in those cases where the President is 
contemplating a major use of force or one where there could be 
significant geopolitical consequences for the United States and its 
allies and friends, presidents have generally come to Congress in 
advance to seek its support. President Bush came to Congress before 
sending the military into Afghanistan and Iraq. President Obama sought 
Congressional support for strikes against Syria in 2013. In the context 
of heightened tension on the Korean peninsula today and North Korea's 
continued effort to develop the capability to strike the United States 
with a nuclear ICBM, military options to fully address that threat 
would likely rise to the level that has typically triggered Presidents 
to seek Congressional authorization.
    There is no established rule or set of criteria that outline when a 
potential use of force crosses the threshold requiring the President to 
seek prior approval from Congress. The Constitution gives both branches 
of government important roles in decisions about use of force, to 
include giving Congress the power of the purse, but many different 
factors influence exactly how each branch carries out those roles at 
any given moment in time. Decisions about the use of force are also a 
heavy responsibility and usually are not easy or straightforward. In 
2013, some of President Obama's advisors reportedly discouraged him 
from seeking Congressional approval for strikes in Syria precisely 
because they worried Congress would say no. Once the Obama 
Administration sought Congressional support and began making the case 
for the intervention here on Capitol Hill, members had to grapple with 
the challenges of sharing responsibility for the decision.
    Despite the challenges, seeking Congressional support for major or 
prolonged uses of force with the potential for significant geopolitical 
consequences is sound. Clausewitz comes to mind here as well, reminding 
us of the importance of public support, both when deciding to go to war 
as well as retaining public support over the longer term to be able to 
finish the job. Congress and the public are not one and the same, but 
Congress is an important proxy for the broader American public.
    The debate about whether the 2001 AUMF should be replaced with a 
new authorization is not just about whether the original authorization 
can be credibly interpreted to encompass what the United States is 
doing today to fight ISIS and other similar groups outside of Iraq and 
Afghanistan, but also is about whether Congress is adequately involved 
in current decisions to use force and is conducting sufficient 
oversight on behalf of the American people. I believe this is a healthy 
and very important debate, and I support this committee's effort to 
craft a new AUMF that would clearly address the current challenges we 
face.
    In today's environment, conflicts seem to be longer and less black 
and white than in the past. The fight against ISIS, al Qaeda and others 
like them is trans-regional and likely generational. The bad guys often 
don't wear uniforms, advanced technology is more available than ever 
before, battlefields have become increasingly complex and information 
technology and social media have profoundly extended the reach of 
allies and adversaries alike. In this complex environment, it is more 
essential than ever that Americans understand and support our 
activities overseas. As Prime Minister during World War II, Winston 
Churchill frequently gave speeches to the British Parliament and the 
British public to explain what the Allies were doing and why. I believe 
our leaders, in the White House and here in Congress, need to do that 
more often today. Talking to Americans about what is at stake in the 
world, why the United States is doing what we are doing overseas and 
why it matters to Americans will help the public decide which 
engagements to support, with what resources and for how long. I think 
most Americans want our country to continue being a leader in the 
world, but in ways that are fair, make sense and don't get in the way 
of us being able to take care of important matters here at home. They 
aren't going to give any President or Congress a blank check, nor 
should they, so our leaders need to make the case for what we are doing 
overseas clearly and regularly.
    This hearing, and others this committee has held recently are an 
important contribution to this needed dialogue between the American 
public and its leaders. I commend you for your leadership in this area, 
and for your broader focus on the role of Congress and the Executive 
branch in critical use of force decisions.


    The Chairman. Thank you so much.
    John?

   STATEMENT OF HON. JOHN B. BELLINGER III, FORMER NATIONAL 
        SECURITY COUNCIL LEGAL ADVISOR, WASHINGTON, D.C.

    Mr. Bellinger. Thanks very much, Mr. Chairman, Ranking 
Member Cardin. It is a privilege to be back again before this 
committee.
    I am the lawyer on the panel and will be focusing on the 
laws and the legal issues governing the use of military force. 
And I have to say it is a particular pleasure for me to be back 
with my former colleague and boss, Steve Hadley, as well as 
Christine Wormuth.
    Congress has an important role to play regarding war powers 
and the use of force, and I commend the chairman and this 
committee for devoting substantial attention to these issues. 
It is long overdue. So I commend you for this series of 
hearings.
    When a President and his national security advisors 
consider the use of military force in or against another 
country, they must take into account the domestic and 
international laws governing the use of force. As the head of 
government and commander-in-chief of the armed forces of a 
nation that is committed to the rule of law, the President must 
follow these rules.
    It is also important that the President and the executive 
branch explain the legal and policy basis for any use of force 
by the United States. When the United States does not explain 
the legality of its actions, it appears to act lawlessly and it 
invites other countries to act without legal basis or 
justification.
    So let me briefly explain the applicable domestic and 
international rules.
    Under Article II of the Constitution, the President has 
broad authority to order the use of force by the U.S. military 
without congressional authorization not only to defend the 
United States against actual or anticipated attacks, but also 
to advance other important national interests such as regional 
security or addressing humanitarian crises. Presidents of both 
parties have deployed U.S. forces and ordered the use of 
military force without congressional authorization on numerous 
occasions.
    Article I of the Constitution, however, gives to Congress 
the authority to declare war. This authority has never been 
interpreted to require congressional authorization for every 
military action the President may initiate. However, the 
provision may require the President to seek congressional 
approval before ordering the military to launch a prolonged or 
substantial military engagement that would expose the U.S. 
military, U.S. civilians, or U.S. allies to significant risk of 
harm.
    Although the President does have broad constitutional 
authority to order the use of force without congressional 
authorization, Presidents of both parties have generally 
preferred to seek congressional authorization if it is possible 
to secure for any prolonged or substantial use of force. As 
Christine noted, President George Bush secured congressional 
authorization for the use of force against terrorist groups in 
2001 and also against Iraq in 2002.
    When authorizing the use of force or deployment of armed 
forces, Presidents must also take into account the War Powers 
Resolution. The resolution requires the President to notify 
Congress within 48 hours after armed forces are introduced into 
hostilities or where hostilities are imminent or into the 
territory of a foreign nation while equipped for combat. And it 
also requires the President to terminate any introduction or 
use of armed forces into hostilities within 60 days unless 
Congress issues a specific authorization.
    Now, I should note that the War Powers Resolution is 
outdated and it should be revised. The committee should 
consider the War Powers Consultation Act of 2014, which was 
introduced by Senators McCain and Tim Kaine, to implement the 
recommendations of the National War Powers Commission. So I 
hope you will have a look at the War Powers Resolution itself.
    Now, the President must also consider international law 
rules, including treaties to which the United States is a party 
and certain principles of customary international law. The UN 
Charter prohibits the United States from using force against or 
in another member state unless authorized by the Security 
Council or the state consents to the use of force. Article 51 
of the charter recognizes that every state has an inherent 
right to use force in individual or collective self-defense to 
respond to an armed attack or to prevent an imminent attack.
    So let me end by discussing the application of these rules 
very briefly to two events: the U.S. airstrike on Syrian bases 
in April and to a possible use of force against North Korea.
    In Syria, the President did not have congressional 
authorization, and he instead relied on his constitutional 
authority as commander-in-chief. The administration did not 
cite an international law basis for the strikes. I would urge 
the administration to explain the factors that it believed 
justified the attack on Syria under international law.
    And finally, with respect to North Korea, the President has 
constitutional authority to order the use of military force 
against North Korea without congressional authorization if he 
concludes that the use of force is necessary to protect 
important national interests. However, if the use of military 
force would clearly be substantial or prolonged or would pose a 
substantial risk to U.S. forces or American civilians, it may 
require congressional approval. Under international law, if the 
Security Council does not approve a use of force against North 
Korea, the President would have to conclude that the use of 
force was in self-defense of the United States or its allies in 
response either to an actual armed attack or an attack the 
President determined to be imminent. And any use of force 
against North Korea would have to be proportionate to the 
threat posed by North Korea.
    Thank you for inviting me here today. The committee has a 
critical role to play on these war powers issues.
    [Mr. Bellinger's prepared statement follows:]


            Prepared Statement of Hon. John B. Bellinger III

    Mr. Chairman, Ranking Member Cardin, and members of the committee, 
thank you for inviting me to testify today about the law applicable to 
the use of military force by the United States. It was a privilege to 
appear before the committee in June to discuss congressional 
authorizations for the use of military force against terrorist groups, 
and I'm delighted to return to discuss the broader set of domestic and 
international law rules governing use of force. This committee and 
Congress have a key constitutional role in authorizing and overseeing 
the deployment and use of U.S. armed forces.
    I served as Senior Associate Counsel to the President and Legal 
Adviser to the National Security Council from 2001-2005 and later as 
Legal Adviser to the State Department from 2005-2009 during the George 
W. Bush administration. During these eight years, I spent a substantial 
amount of time advising the President and senior national security 
policy officials on the domestic and international law applicable to 
the use of force against the Taliban and Al Qaida and associated groups 
in various countries; against the government of Saddam Hussein in Iraq; 
and to address other threats to our national security. I also had 
extensive discussions with officials from other countries about these 
issues.
    When a President and his national security advisers consider the 
use of military force in or against another country, they must take 
into account domestic and international laws governing the use of 
force. As a matter of U.S. law, these laws include the U.S. 
Constitution and laws passed by Congress, including the War Powers 
Resolution of 1973. As a matter of international law, the rules include 
the U.N. Charter, treaties governing the use of military force, and 
certain principles of customary international law.
    As the head of government and Commander-in-Chief of the armed 
forces of a nation committed to the rule of law, the President must 
follow these domestic and international legal rules.\1\ I hope that 
President Trump's legal and policy advisers have educated him on the 
legal rules that govern his actions.
---------------------------------------------------------------------------
    \1\ See John B. Bellinger III, ``Law and the Use of Force: 
Challenges for the Next President,'' Sixth Annual Lloyd Cutler Rule of 
Law Lecture, November 20, 2016. https://www.lawfareblog.com/my-lloyd-
cutler-rule-law-lecture-law-and-use-force-challenges-next-president
---------------------------------------------------------------------------
    It is also important that the President and Executive branch 
officials explain the legal and policy basis for any use of force by 
the United States. When I was Legal Adviser of the State Department, I 
gave numerous speeches about the domestic and international law 
authority for U.S. military operations against Al Qaida and the 
Taliban.\2\ Obama administration officials gave many similar speeches. 
In December 2016, President Obama issued a report that described the 
domestic and international bases for the United States' ongoing use of 
military force overseas and the legal and policy frameworks his 
administration had developed to govern such uses of force and related 
national security operations, such as detention, transfer, and 
interrogation operations.\3\
---------------------------------------------------------------------------
    \2\ See, e.g., ``Legal Issues in the War on Terrorism,'' Address at 
the London School of Economics, October 31, 2006 https://www.state.gov/
s/l/2006/98861.htm
    \3\ https://obamawhitehouse.archives.gov/sites/whitehouse.gov/
files/documents/Legal--Policy--Report.pdf
---------------------------------------------------------------------------
    Congress also has an important role to play regarding war powers 
and the use of force. Congress should insist that the President comply 
with applicable domestic and international legal rules and explain the 
legal basis for actual or potential uses of force and military 
operations. Congress should authorize the President to use military 
force when appropriate. And Congress should exercise appropriate 
oversight of military operations, consistent with the President's role 
as Commander-in-Chief.
    Separate from his authority to use force, the President also has 
constitutional authority to deploy the U.S. military in other countries 
and the Secretary of Defense has statutory authority to train and equip 
the security services of foreign countries.
Domestic Law Authority
A. Constitutional Authority
    Under Article II of the Constitution, the President has broad 
authority as Commander-in-Chief and Chief Executive to order the use of 
force by the U.S. military. His Article II powers include authority not 
only to order the use of military force to defend the United States and 
U.S. persons against actual or anticipated attacks but also to advance 
other important national interests.
    Presidents of both parties have deployed U.S. forces and ordered 
the use of military force, without congressional authorization, on 
numerous other occasions.\4\ For example, President George H.W. Bush 
ordered U.S. troops to Panama in 1989 to protect U.S. citizens and 
bring former President Noriega to justice. President Clinton ordered 
the deployment of U.S. forces to Haiti in 1994 and U.S. participation 
in NATO bombing campaigns in Bosnia and Kosovo in 1995 and 1999. 
President Obama ordered the U.S. military to participate in the bombing 
campaign of Libya in 2011.
---------------------------------------------------------------------------
    \4\ See Barbara Salazar Torreon, Cong. Research Service, Instances 
of Use of United States Armed Forces Abroad, 1798-2017 (October 12, 
2017).
---------------------------------------------------------------------------
    The Department of Justice's Office of Legal Counsel has written 
numerous opinions, under both Republican and Democratic Presidents, 
determining that the President has the power to commit troops and take 
military actions to protect a broad array of national interests, even 
in the absence of a Congressional authorization, including for the 
purpose of protecting regional stability, engaging in peacekeeping 
missions, and upholding U.N. Security Council Resolutions. For example, 
the Office of Legal Counsel concluded that the President had the power, 
without congressional authorization, to deploy U.S. forces and use 
military force in Somalia in 1992, in Haiti in 1994, in Bosnia in 1995, 
in Iraq in 2002, and in Libya in 2011.\5\
---------------------------------------------------------------------------
    \5\ See, e.g., Authority to Use United States Military Forces in 
Somalia, 16 Op. O.L.C. 6 (1992); Deployment of United States Armed 
Forces into Haiti, 18 Op. O.L. C. 173 (1994); Proposed Deployment of 
United States Armed Forces into Bosnia, 19 Op. O.L.C. 327 (1995); 
Authority of the President Under Domestic and International Law to Use 
Military Force Against Iraq (October 23, 2002); Authority to Use 
Military Force in Libya (April 1, 2011)
---------------------------------------------------------------------------
    Of course, in addition to the powers granted to the President in 
Article II, Article I of the Constitution gives to Congress the 
authority to ``declare War.'' \6\ But this authority has never been 
interpreted--by either Congress or the Executive--to require 
congressional authorization for every military action, no matter how 
small, that the President may initiate. Indeed, the War Powers 
Resolution itself, implicitly recognizes that a President may order the 
U.S. military into hostilities without congressional authorization, 
provided that he notifies Congress within 48 hours and ceases the use 
of force after sixty days unless he receives congressional 
authorization.
---------------------------------------------------------------------------
    \6\ Congress has issued eleven declarations of war: Great Britain 
(1812); Mexico (1846); Spain (1898); Germany (1917); Austria-Hungary 
(1917); Japan (1941); Germany (1941); Italy (1941); Bulgaria (1942); 
Hungary (1942); Romania (1942). https://www.senate.gov/pagelayout/
history/h--multi--sections--and--teasers/WarDeclarationsbyCongress.htm
---------------------------------------------------------------------------
    In several opinions, the Office of Legal Counsel has acknowledged 
that the ``declare War'' clause may impose a potential restriction on 
the President's Article I powers to commit the U.S. military into a 
situation that rises to the level of a ``war.'' \7\ This possible 
limitation appears only to have been recognized by OLC under Democratic 
administrations; war powers opinions written by OLC during Republican 
administrations do not appear to have recognized that the ``declare 
war'' clause places any restriction on the President's Article II 
powers. And even during Democratic administrations, OLC has stated that 
whether a particular planned engagement constitutes a ``war'' for 
constitutional purposes ``requires a fact-specific assessment of the 
`anticipated nature, scope, and duration' of the planned military 
operations'' and that ``This standard generally will be satisfied only 
by prolonged and substantial military engagements, typically involving 
exposure of U.S. military personnel to significant risk over a 
substantial period.'' OLC determined that this standard was not met 
with respect to President Clinton's use of the U.S. military in Haiti 
in 1994 and in Bosnia in 1995 or President Obama's use of the U.S. 
military in Libya in 2011.
---------------------------------------------------------------------------
    \7\ Deployment of United States Armed Forces into Haiti, 18 Op. 
O.L. C. 173 (1994); Proposed Deployment of United States Armed Forces 
into Bosnia, 19 Op. O.L.C. 327 (1995); Authority to Use Military Force 
in Libya (April 1, 2011).
---------------------------------------------------------------------------
    Although OLC has yet to identify a specific situation where the 
``declare war'' clause would limit the President's independent 
authority to order the use of military force and require congressional 
authorization, this does not mean that such circumstances will never 
exist. If a President wished to order the U.S. military to launch a 
prolonged or substantial military engagement that is not in response to 
an attack or clearly imminent attack and that would expose the U.S. 
military, U.S. civilians, or U.S. allies to significant risk of harm 
over a substantial period, there is a strong argument that the 
President may be required to seek congressional approval. It would 
certainly be prudent for him to do so.
B. Congressional Authorization
    Although the President has broad constitutional authority to order 
the use of force without congressional authorization, Presidents of 
both parties have generally preferred to seek congressional 
authorization, if it is possible to secure, for any prolonged or 
substantial use of force.
    President George W. Bush, for example, sought and secured 
congressional authorization for the use of force against terrorist 
groups in 2001 (``2001 AUMF'') and against Iraq in 2002 (``2002 
AUMF''). President George H.W. Bush sought and secured a congressional 
authorization for the use of force against in Iraq in 1991.
    In my previous testimony before this committee in June 2017, I 
urged Congress to pass a new AUMF that repeals the 2001 Authorization 
to Use Military Force against terrorist groups and the 2002 
Authorization to Use Military Force in Iraq and replaces them with a 
comprehensive new AUMF that authorizes the use of force against the 
Taliban, Al Qaida, and ISIS.\8\ I applaud Chairman Corker's continued 
efforts to draft a new authorization, as well as the new draft AUMF 
introduced by Senators Kaine and Flake.
---------------------------------------------------------------------------
    \8\ https://www.foreign.senate.gov/imo/media/doc/
062017_Bellinger_Testimony.pdf
---------------------------------------------------------------------------
C. War Powers Resolution
    When authorizing the use of force or deployment of U.S. armed 
forces, Presidents must also take into account the War Powers 
Resolution of 1973. Section 4 of the War Powers Resolution requires the 
President to notify Congress within 48 hours after U.S. armed forces 
are introduced 1.) into ``hostilities'' or where hostilities are 
imminent; 2.) into the territory, airspace or waters of a foreign 
nation, while ``equipped for combat''; 3.) in numbers which 
substantially enlarge United States Armed Forces equipped for combat 
already located in a foreign nation. Section 5(b) of the Resolution 
requires the President to terminate any introduction or use of US armed 
forces into hostilities within 60 days unless Congress issues a 
specific authorization.\9\ Presidents of both parties have concluded 
that some parts of the War Powers Resolution are unconstitutional, 
though all Presidents have tried to act ``consistent with'' the 
Resolution's provisions, including by submitting regular reports to 
Congress.
---------------------------------------------------------------------------
    \9\ The 60-day termination provision applies only to the 
introduction of U.S. armed forces into hostilities or imminent 
hostilities, not to the introduction of U.S. armed forces equipped for 
combat.
---------------------------------------------------------------------------
    Presidents have struggled in particular with the Resolution's 60-
day termination requirement. President Obama continued the use of U.S. 
military force against Libya for more than 60 days in 2011 after 
concluding (over the purported advice of the Justice Department and 
Defense Department) that U.S. military operations did not constitute 
``hostilities'' within the meaning of the Resolution. He later 
continued the use of U.S. military force against ISIS in Iraq and Syria 
for more than 60 days in 2014 after concluding that the use of force 
against ISIS was authorized by congress under the 2001 AUMF, even 
though al Qaida had distanced itself from ISIS.
    On several occasions, members of Congress or of the public have 
sued the President for allegedly violating the War Powers Resolution by 
using force for longer than sixty days without specific congressional 
authorization. The courts have generally dismissed these suits, finding 
that the legislators or members of the public lack standing or that the 
suits raise non-justiciable political questions.\10\
---------------------------------------------------------------------------
    \10\ See, e,g., Campbell v Clinton, 52 F. Supp 2d 34 (DDC 
1999)(dismissing suit against President Clinton relating to NATO 
bombing campaign in Serbia)(citing cases); Smith v. Obama, 217 F. Supp 
3d 283 (DDC 2016)(dismissing suit against President Obama relating to 
operations against ISIS in Iraq and Syria) (appeal pending).
---------------------------------------------------------------------------
    I have previously recommended that this committee revise and update 
the War Powers Resolution. The committee should review the valuable 
2008 report of the National War Powers Commission, a bi-partisan 
commission chaired by former Secretaries of State James Baker and 
Warren Christopher, which called the War Powers Resolution 
``impractical and ineffective.'' \11\ The Commission stated that no 
President has treated the Resolution as mandatory and that ``this does 
not promote the rule of law.'' They recommended the Resolution be 
repealed and replaced with a mandatory consultation process. In 2014, 
Senators McCain and Kaine introduced the War Powers Consultation Act of 
2014 to implement the Commission's recommendations; their bill was 
referred to this committee.\12\
---------------------------------------------------------------------------
    \11\ http://web1.millercenter.org/reports/warpowers/report.pdf
    \12\ http://thehill.com/blogs/floor-action/senate/195704-senate-
bill-amends-war-powers-act
---------------------------------------------------------------------------
International Law Rules
    When considering whether to use U.S. military force, the President 
and his advisers must also consider international law rules, including 
the treaties to which the United States is a party. As leaders of a 
nation committed to the rule of law, Republican and Democratic 
Presidents have generally tried to comply with these rules. Although 
international law rules constrain a President's flexibility to use 
force, Presidents have found that our close allies and coalition 
partners--such as Australia, Canada, the United Kingdom and other 
European countries--are committed to following international law and 
expect the United States to do so as well. Moreover, if the United 
States does not comply with its international law obligations regarding 
the use of force, it is hard for the U.S. Government to criticize other 
governments, such as Russia or China or Syria, when they do not do so. 
It is true that certain international rules do not apply well to modern 
challenges--such as threats from terrorists, rogue governments that 
develop nuclear weapons, and governments that commit human rights 
atrocities against their nationals--but Presidents of both parties have 
still generally tried to abide by international law when authorizing 
the use of force in or against another country.
    The key international law rules governing the use of force are set 
forth in the U.N. Charter, a treaty which the United States ratified in 
1945 after nearly unanimous (89-2) approval by the Senate. Article 2(4) 
of UN Charter prohibits the use of force against or in another UN 
member state unless authorized by the Security Council or the state 
itself consents to the use of force (for example, against a terrorist 
group operating in its territory). Article 51, however, recognizes that 
every State has an inherent right to use force in individual or 
collective self-defense to respond to an armed attack. The United 
States interprets this ``inherent right'' to include a right to use 
force in anticipatory self-defense to prevent an imminent attack. The 
George W. Bush and Obama administrations have stated that the concept 
of ``imminence'' must be interpreted flexibly with respect to 
contemporary threats such as terrorism and nuclear weapons, and that 
whether a particular threat poses an ``imminent'' threat of an armed 
attack will depend on the facts and circumstances.\13\
---------------------------------------------------------------------------
    \13\ See, e.g., The National Security Strategy of the United 
States, https://georgewbush-whitehouse.archives.gov/nsc/nss/2002/; 
Report on the Legal and Policy Frameworks Guiding the United States Use 
of Military Force and Related National Security Operations, https://
obamawhitehouse.archives.gov/sites/whitehouse.gov/files/documents/
Legal_Policy_Report.pdf
---------------------------------------------------------------------------
    State consent, Security Council authorization, and self-defense are 
the only legal bases recognized in the UN Charter for a state to use 
force in or against another state. The U.N. Charter does not 
specifically permit a state to intervene in another state for 
humanitarian purposes. The United Kingdom and a few other countries 
have asserted that international law permits the use of force to 
prevent a humanitarian catastrophe in limited circumstances, but the 
United States and the majority of other countries do not recognize an 
international law right of humanitarian intervention.
    The foregoing international rules govern when a state may initiate 
the use of force (so called ``jus ad bellum,'' or law relating to the 
beginning of war). The United States is also party to dozens of other 
treaties relating to the conduct of military operations during 
hostilities (so-called ``jus in bello,'' or law in war). These treaties 
include, among others, the Hague Conventions of 1907, the Geneva 
Conventions of 1949, and the U.N. Convention on Certain Conventional 
Weapons, and its Protocols on Blinding Lasers, Incendiary Devises, and 
Explosive Remnants of War.
    During the conduct of military operations, the United States also 
complies with principles of customary international law governing 
military operations, such as the principles of distinction, necessity, 
and proportionality.
Legal Bases for Use of Force in Syria or North Korea
    On April 6, 2017, President Trump ordered air strikes against a 
Syrian air base after reports that the Syrian government used chemical 
weapons against Syrian civilians. He subsequently sent a War Powers 
report to congress stating that he was acting in the ``vital national 
security and foreign policy interests of the United States, pursuant to 
my constitutional authority to conduct foreign relations and as 
Commander in Chief and Chief Executive.''\14\ There would have been no 
justification for the air strikes under the 2001 or 2002 AUMFs, and the 
President did not cite any statutory authority.
---------------------------------------------------------------------------
    \14\ https://www.whitehouse.gov/the-press-office/2017/04/08/letter-
president-speaker-house-representatives-and-president-pro-tempore
---------------------------------------------------------------------------
    The Trump administration has never cited any international law 
basis for the air strikes in Syria and it would have been difficult to 
do so because there is no legal basis under the U.N. Charter. Although 
President Trump and Trump administration officials stated that the air 
strikes were in response to Syria's use of chemical weapons, I believe 
the Trump administration should still have provided--and still should 
provide--a more detailed statement of the facts and factors that it 
believed justified the use of force. When President Clinton, without 
U.N. authorization, authorized air strikes against Serbia in 1999 in 
order to protect Kosovars from attack by Serb forces, his 
administration cited a variety of humanitarian factors that the 
administration believed justified the attacks. When the United States 
uses military force, especially under controversial circumstances, it 
should explain the legal basis for its actions. When the United States 
does not do so, it appears to act lawlessly and invites other countries 
to act without a legal basis or justification.
    With respect to North Korea, President Trump has constitutional 
authority as Commander-in-Chief and Chief Executive to order the use of 
military force against North Korea if he concludes that the use of 
force is necessary to protect important national interests. These 
interests could include defense of the United States, its nationals, or 
U.S. allies or the maintenance of regional stability in Asia. 
Consistent with previous precedents and legal opinions from both 
Republican and Democratic administrations, he could do so even without 
congressional authorization. However, if the use of military force 
would clearly be substantial and prolonged or would pose a substantial 
risk to U.S. forces or American civilians, it could require 
Congressional approval consistent with Congress' authority in Article I 
to ``declare war.'' Under international law, if the Security Council 
had not approved a use of force against North Korea, the President 
would have to conclude that the use of force was in self-defense of the 
United States or its allies in response either to an actual armed 
attack or an attack the President determined to be imminent. As noted 
above, both the Bush and Obama administrations have taken a more 
flexible position regarding what constitutes an ``imminent'' threat 
when dealing with rogue states and terrorist groups, although some 
other states disagree with the U.S. approach.\15\ It is certainly clear 
that North Korea's development of nuclear weapons and repeated 
launching of ballistic missiles capable of reaching the United States 
pose a very serious threat to the United States. Even if the United 
States were justified in initiating the use of force in self-defense 
against North Korea, to be consistent with international law, any such 
use of force would have to be proportionate to the threat posed by 
North Korea.
---------------------------------------------------------------------------
    \15\ Some have argued that the restrictions in the U.N. Charter on 
the initiation of the use of force would not apply to North Korea 
because the United States remains in a state of ongoing armed conflict 
with North Korea since the Korean War. Although North Korea and the 
United States signed an Armistice Agreement in 1953, North Korea has 
violated the armistice and has also announced on several occasions that 
it would not observe the armistice, which might arguably provide a 
legal basis for the United States to continue to use force against 
North Korea. See Charlie Dunlap, ``Assessing the legal case for the use 
of force against North Korea; Is ``armistice law'' a factor?'' https://
sites.duke.edu/lawfire/2017/09/17/assessing-the-legal-case-for-the-use-
of-force-against-north-korea-is-armistice-law-a-factor/ (assessing 
arguments made by others). With more than sixty years of intervening 
peace between the United States and North Korea, it would be a very 
hard to conclude that a state of armed conflict still exists between 
the two countries.
---------------------------------------------------------------------------
Train and Equip Authority
    In addition to the laws that govern the President's use of military 
force and commitment of U.S. armed forces into hostilities, Congress 
should recognize that different laws govern the deployment of the U.S. 
military in foreign countries for purposes other than combat.
    Under Article II of the Constitution, the President has power as 
Commander-in-Chief and Chief Executive to deploy the U.S. military 
abroad for various purposes.
    Congress has also given the Secretary of Defense specific statutory 
authorization to use the U.S. military to ``train and equip'' foreign 
security forces. For many decades, Congress had authorized the State 
Department to provide foreign assistance to other countries by training 
their military forces. After the 9-11 attacks, starting in 2006, 
Congress began including additional authorization to the Department of 
Defense in the annual National Defense Authorization Act to train and 
equip foreign security forces. This authority was included in annual 
NDAAs until 2016, when it was permanently added as Section 333 of Title 
10 of the U.S. Code.\16\ A separate provision, 10 U.S.C 127(e), 
authorizes the Secretary of Defense to provide support to foreign 
groups that provide support ongoing military operations by U.S. special 
forces.
---------------------------------------------------------------------------
    \16\ 10 U.S.C. 333(a) provides:
      (a)Authority.--The Secretary of Defense is authorized to conduct 
or support a program or programs to provide training and equipment to 
the national security forces of one or more foreign countries for the 
purpose of building the capacity of such forces to conduct one or more 
of the following:
        (1) Counterterrorism operations.
        (2) Counter-weapons of mass destruction operations.
        (3) Counter-illicit drug trafficking operations.
        (4) Counter-transnational organized crime operations.
        (5) Maritime and border security operations.
        (6) Military intelligence operations.
        (7) Operations or activities that contribute to an 
international coalition operation that is determined by the Secretary 
to be in the national interest of the United States
---------------------------------------------------------------------------
    These ``train and equip'' authorities do not authorize the use of 
force by U.S. military personnel engaged in training foreign forces. 
However, U.S. military personnel in other countries are given authority 
by the Secretary of Defense to use force to defend themselves; the 
scope of these authorities are specified in the Rules of Engagement for 
particular missions.
U.S. Military Operations In Niger
    After the tragic incident in Niger last month in which several 
members of the U.S. military were killed, some members of Congress, 
including members of this committee, have asked what was the legal 
basis for the presence of members of the U.S. military in Niger. Some 
members have asked whether the Defense Department believed that the 
2001 AUMF authorized the deployment of the U.S. military to Niger.
    In the October hearing before this committee, Secretary of Defense 
Mattis clarified that U.S. military members were operating on a ``train 
and equip'' mission under Title 10 of the U.S. Code. Secretary Mattis 
was presumably referring to the authority provided to the Secretary of 
Defense in 10 U.S.C. 333 to train and equip foreign security forces.
    Accordingly, the U.S. forces in Niger were not operating pursuant 
to the 2001 AUMF, because their purpose was not to use military force 
against persons or groups associated with the groups responsible for 
the 9-11 attacks, but rather to train and equip Niger's security 
forces. The legal basis for the force that the U.S. forces did use was 
not the 2001 AUMF but rather the authority given to them by the 
Secretary of Defense and their commanders to defend themselves. As 
Secretary Mattis indicated, it is possible that the mission of U.S. 
forces in Niger could change and that the U.S. military could begin 
direct counterterrorism operations against terrorist groups in Niger. 
If the President determines that persons or groups in Niger are 
associated with Al Qaida or ISIS, then the U.S. military would have 
authority under the 2001 AUMF to use force against them.
    Although the U.S. military personnel in Niger have not been 
operating under the authority of the 2001 AUMF, the Obama and Trump 
administrations have still notified Congress in ten reports under the 
War Powers Resolution about the deployment of the U.S. military in 
Niger, presumably because the forces are ``equipped for combat'' even 
if they have not been (until last month) engaged in hostilities. 
President Obama first notified Congress in February 2013 that he had 
deployed 100 U.S. military personnel to support U.S. counterterrorism 
objectives. In eight additional war powers reports, President Obama 
reported that the number of U.S. military personnel in Niger had 
increased to 575 by December 2016. In June 2017, President Trump 
reported that the number of U.S. military personnel in Niger was 645.
    The State and Defense Departments also provide reports to Congress 
on train and equip programs.
Conclusion
    In conclusion, I applaud this committee's renewed interest in 
Presidential and congressional war powers. Although the President has 
broad authority under the Constitution to order the use of military 
force, Congress also has a vital role to play.


    The Chairman. Thank you, all three, for that outstanding 
testimony.
    And with that, I will turn to Senator Cardin.
    Senator Cardin. I agree with the chairman. I thank all 
three of you for your testimony.
    The Framers of our Constitution developed this check and 
balance system in the United States in order to protect against 
abuse of power. The President has a term, unlike the 
parliamentary systems, which the prime minister would not have 
a term. He is protected. But we have an independent Congress. 
That is unique, certainly different than parliamentary systems.
    Mr. Hadley, I want to thank you in the words of Hamilton 
for letting us know what happened in the room when President 
Bush made his decisions on the use of force. It was very 
helpful to hear that. And I think your analysis on how the 
President determined the use of force was extremely helpful.
    But I think we now need to realize that we have a President 
who has a reckless self-confidence of his own instincts and 
makes decisions without relying upon his advisors, as we have 
seen over and over again, and whether we have adequate 
protections by the congressional independence in our 
responsibilities to protect against that use of power 
inappropriately and allowing our men and women in harm's way. 
So I think that is the challenge.
    And I think there are three areas that we have talked 
about, and I want to concentrate on one in my round of 
questioning. One was the AUMF, which we all agree is outdated. 
It has been abused not just by this administration but by 
previous administrations. It is authority of convenience. It is 
difficult to get an authorization through Congress. So they 
just use it, and it is inappropriate. And I thank Senator Kaine 
and Senator Flake for their leadership on this, and I hope we 
can come to grips on that issue. It is our responsibility.
    The second was North Korea. And, Mr. Bellinger, I thought 
you gave a very good explanation of that. So if the President 
were to determine he was going to use a first strike, it seems 
to me it would be contrary to our responsibilities under the 
United Nations and our obligations there.
    But I hear what you are saying, and as I said in my opening 
statement, we have to rely on the professionalism of those who 
carry out the presidential orders. But it does seem to me that 
the use of force here would be an abuse of executive power 
absent an imminent threat that there was a missile pointed at 
us ready to be launched. So obviously we put that aside.
    But I want to get to the third point, which really has me 
concerned about mission creep that I talked about in my opening 
statement. Secretary Mattis said that under the train and equip 
authority under Title 10, that he believes he has the authority 
to send American troops out on combat missions with the troops 
from the host country. That seems to me to be--we are in 
combat. That seems to me that without specific authorization 
for combat, we have seen the ability to do this and creep into 
a much more deep military involvement in a country.
    What can we do or what should Congress be doing here in 
order to oversight our responsibilities on the use of force 
where we now see we have American troops in so many countries 
around the world under the mission of train and equip when they 
are actually participating in combat missions? Any suggestions?
    Mr. Hadley. You know, listening to you, it occurred to me 
where there might be some misunderstanding on that. You know, 
it occurred to me, listening to your opening statement, there 
is one view of train and equip, which is that U.S. forces would 
go to training camps where there are young recruits of Iraqi or 
others' soldiers, far away from the battlefield, training them 
in the various arts and methodologies of war. That is a form of 
military training, and I am sure train and equip would cover 
that.
    What is really happening, though, is our military thinks 
that in some sense the best way to train and equip a unit is to 
go with them in combat and help them succeed in combat. And I 
think our military--and you can have them before you--would 
view that as part of the train and equip mission, indeed 
probably some of the best training and equipping that we can 
do. And as you rightly say, that begins to blend into our men 
and women assisting others in combat.
    And I think basically the Congress and the administration 
need to get a better and clearer understanding of what train 
and equip means and where does that begin to----
    Senator Cardin. I do not disagree with your assessment. How 
does Congress get a better grip on this? Because as we saw 
under the AUMF, we give a two-line authorization and it is used 
for the next decade for different purposes. We have 
authorization for training and equipping. How does Congress get 
a better control over the use of that authority?
    Mr. Hadley. I would say two things, and Christine may have 
a view on that.
    One, a better understanding, and that comes through 
hearings with military officials describing the program to you, 
and secondly, the authorization is in statute, Title 10, which 
you all wrote. And it is within your authority to revise that.
    Senator Cardin. So we say train and equip, but you cannot 
go out on missions, or you say going out on missions is 
important. I accept that. But we do not want it to be creeped 
into a combat mission. How do you prevent something like the 
presidential interpretation of the AUMF that they are using 
today from any authorization we do? How can Congress 
effectively carry out its responsibility on the use of force 
without hamstringing the military from doing their mission?
    Ms. Wormuth. Senator Cardin, if I could maybe try to add 
something. Certainly when I was Under Secretary at the Defense 
Department, when we were doing these kinds of train and equip 
and capacity building missions in various countries in Africa, 
for example, the rule was they were not allowed to accompany 
local forces, partner forces if there was any kind of likely 
possibility that they would come into contact with adversarial 
forces because they were not supposed to be there in combat. 
They were supposed to be doing training. So there was an 
intelligence assessment that would be made and AFRICOM would 
have a major role in giving that assessment. And if the 
judgment was that by going out and doing the accompany mission, 
there was some likelihood that our forces would come into enemy 
contact, AFRICOM was not authorized to go and proceed and do 
that kind of mission.
    So my sense is that through your oversight function, maybe 
the thing to do is to try drill down to really understand how 
the combatant commands are making the judgment about what is 
the likelihood of making enemy contact so that you can form 
your own opinions about whether you should have confidence in 
those intelligence assessments.
    And it is difficult. Certainly there were times during my 
tenure where we assessed that the likelihood of enemy contact 
was low and we were unpleasantly surprised. But I think there 
was a threshold and there was a set of understandings, and we 
even in the Office of the Secretary of Defense had a healthy 
dialogue with the combatant commands to try to really 
scrutinize their assessments in that regard.
    Senator Cardin. Thank you.
    The Chairman. Before turning to Senator Flake, I wanted to 
ask John a question. Part of what prompted this has been just 
an understanding of what could or could not happen in North 
Korea. You know, I think everyone understands that we have a 
serious situation that could be developing there.
    As I listened to your explanation of what a commander-in-
chief can do to protect our country, it seems to me that it 
would be an unlikely scenario where a President would come to 
us and say, hey, look, we are getting ready to, quote, invade 
North Korea and we want to talk with you about an authorization 
for the use of force. I do not think I see that happening. I 
hope nothing ever happens, and I hope diplomatically we are 
able to resolve this.
    But it seemed, as you laid out the criteria, that a 
President in the type of scenario that likely would develop 
around a case where we are worried about their getting into a 
position where they are close to being able to deliver 
something that we feel is a threat or is destabilizing the 
region and therefore hurting our allies, it really does seem to 
me that that type of scenario that is developing based on all 
the criteria you laid out--which is the criteria--that while 
they might make a couple of calls to folks to let them know in 
2 hours something is getting ready to happen, in all likelihood 
actions would be taken mostly unilaterally without Congress. 
But in that case, obviously it could spread into a much larger 
conflict with many, many countries involved that in some cases 
are at least regional super powers if not greater.
    Now, did I hear you wrong when you were laying out the 
criteria and the likely scenario that could develop should the 
North Korea situation get out of hand?
    Mr. Bellinger. That to me, Mr. Chairman, is a legal matter.
    So let me say two things. One, an authorization does not 
have to be immediately before an attack. It could be a long 
time before. Recall that the authorization that President Bush 
sought for Iraq came 6 or 8 months before the actual invasion 
of Iraq. And Congress passed that authorization not because 
they expected the President to immediately invade Iraq but 
because they wanted to go on record and give the President the 
authority so that it was clear from two branches of government 
that there was authority to use force against Iraq. I think at 
the time I was not here on your side. But Congress probably 
hoped that the President would not use force, but they gave him 
that authority so that he had it.
    One could do that in North Korea with certain limitations. 
So we are not talking about an authority that is days before an 
actual attack. The Congress could give the President the 
authority. Or afterwards, if the President feels a need to act 
rapidly, that is what the War Powers Resolution says is that 
within 60 days that the President should seek and Congress 
could pass an authorization. So it could come after the fact.
    So I take your point as a matter of political practicality 
that if the President within a couple of weeks thinks that he 
is going to need to use force against North Korea and does not 
want to signal to them that he is going to do it by going to 
Congress and seeking an authorization, that would be quite 
awkward. Hopefully, behind the scenes there would be the policy 
consultations that would go on.
    The Chairman. Did you want to say something, Steve?
    Mr. Hadley. I agree with what John said. And I would think 
that--and I tried to suggest in my testimony--that use of 
military force in the North Korea setting, given the 
geopolitics and given the stakes, is the kind of thing that I 
cannot imagine a President would want to do without 
congressional authorization. You know, it bumps up very much to 
what John talked about. It is almost a de facto declaration of 
war, and that is, of course, where congressional prerogatives 
are strongest.
    So the question is how to do that. And again, John is 
right. In Iraq, we did it well in advance to give strength to 
diplomacy to try to avoid the use of force. It seems to me that 
would probably be the scenario you would want to follow here.
    The Chairman. I am going to reserve the rest of my time, 
the 20 seconds, and turn it over to Senator Flake who I think 
is going to chair while I introduce somebody in Judiciary. And 
I will be right back.
    Senator Flake. I will chair, but since I just got here, if 
we can turn it over to Senator Kaine and then I will go after 
that.
    The Chairman. Very good.
    Senator Kaine?
    Senator Kaine. Menendez was ahead of me. So I do not want 
to jump ahead.
    The Chairman. A very courteous committee today. Thank you 
all.
    Senator Menendez. Thank you.
    And thank you all for your past service as well as your 
constant willingness to come before the committee and share 
your insights.
    I strongly believe that Congress has to take a much more 
active role in asserting our constitutionally mandated 
authority of declaring war and providing the authorizations for 
our military to engage in sustained combat operations to 
protect the American people. I think in my 25 years in 
Congress, there is no more significant vote that can ever be 
taken than an authorization for the use of force because it is 
about life and death of the sons and daughters of America that 
we send in harm's way. So I think it is the singular most 
important thing we do.
    And I certainly believe we live in a significantly 
different world than when our existing authorities that were 
passed in 2001 and 2002. And so that is why I believe this 
effort to try to come to an AUMF is certainly incredibly 
important and incredibly worthy endeavor. Now, we may have some 
differences about exactly what does that look like because 
there are very serious issues when you are going to make such 
an authorization that you are doing it in a way that if you are 
going to commit America's sons and daughters, that you are 
going to commit them with a clear objective, with a clear 
strategy, with an end goal, and because it is in the national 
interests and security of the United States. So there are a lot 
of factors there.
    But, Mr. Hadley, I noted in your opening statement where 
you said many of our Nation's top diplomats have been quick to 
say that the threat or judicious use of military power is often 
an essential element of a successful diplomatic initiative. And 
I would like to pursue that idea as an element of what we are 
thinking about here.
    You mentioned President Obama's decision in 2013 to seek 
congressional approval to respond to Assad's use of chemical 
weapons. I was the chairman of the committee at the time. I 
believe the President was right to seek an approval. And while 
I am disappointed that our body as a whole did not ultimately 
act, that authorization, which the President took to the G20 
summit at that time in Russia, gave him a credible threat of 
the potential use of force to convince Putin that he needed to 
have Assad give up his chemical weapons. And ultimately, a very 
important goal, getting Assad to give up at least the chemical 
weapons that we knew of at the time, was achieved without 
firing a single shot. And that is an example in my mind of the 
credible use of force that can promote a diplomat effort.
    Can you discuss a little bit more how a reliable threat of 
military action can most effectively be used to bolster a 
diplomatic effort?
    Mr. Hadley. The example that comes to my mind was when 
Saddam Hussein kicked out--I think I have the facts on this 
right--the inspectors under the Clinton administration and 
President Clinton actually used military force against Iraq and 
subsequently those inspectors came back in and it gave--revived 
basically the diplomatic process to try to solve that problem. 
I think that is a good example. I think the one you gave is 
also a good example where you have an integrated strategy that 
has diplomatic, economic, and some military actions, either 
threats or actual use of limited military action, to give 
credibility to the American commitment to find a solution.
    Senator Menendez. Let me ask you. I think both of you and 
Ms. Wormuth in your statements talk about understanding what 
the end result is that we want and stepping backwards and 
understanding the military actions that we might authorize. And 
I think very often we are called upon looking at a set of 
circumstances in which we are told this is the threat and we 
might seek an authorization for the use of meeting that threat. 
But that totality of the picture is not there.
    Now, some have suggested that when we think about that 
totality, it is nation state building, and that became a famous 
phrase years ago that was a reason not to be engaged. But is it 
not true that at the end of the day if we are going to send our 
sons and daughters in harm's way, we want to make sure that 
whatever the threat is that we ultimately eliminate, that we 
have eliminated it not for the moment but for the long term? 
Can you speak to that? As we think about what an authorization 
should be and what evidence or information should be presented 
to us to give any particular authorization, can you speak to 
that end game element?
    Mr. Hadley. Yes. What we have learned is exactly that, that 
in order to consolidate the military victory, it is not nation 
building. We are not building the nation of Iraq. The Iraqi 
people need to do that. What we have learned is that we can and 
it is in our interest to help them the build the institutions 
of good governance, economic progress, and security so that in 
the wake of military activity, local authorities are able to 
meet the needs of their people and provide a sustainable peace 
and not a situation in which the terrorists will be invited 
back in. That is the sustainable end state.
    And what John Allen was saying is you need to start out 
with a plan of how you are going to get to that end state, 
which will involve military, diplomatic, economic, and 
developmental objectives. You need an integrated plan for that 
and then walk backwards and plan your military operation. Your 
military operation has to contribute and move you towards that 
objective.
    We do not do our planning for these operations that way. It 
is a whole different way of doing it, and I think one of the 
things Congress can do is when you are asked for the 
authorization of military force say, fine, what is the phase 4 
plan. What is the strategy for achieving the phase 4 plan, and 
how does this military operation fit into that? And once you 
are satisfied on that, then of course, the authorization would 
follow. That will force the executive branch to actually do 
exactly what John Allen said, start with phase 4 and work 
backwards.
    Senator Menendez. I appreciate it.
    Senator Flake [presiding]: Senator Kaine?
    Senator Kaine. Thank you, Mr. Chair, and thank you to the 
members. These issues are so important to me as a member of 
this committee, the Armed Services Committee, and the father of 
a United States marine. And I want to thank the chair and thank 
my colleagues, Senator Flake especially, for the work that we 
are trying to do to redraft the 2001 authorization. There is 
work underway now to do that. I think that is important. Many 
of you have testified about this before, so I do not want to 
ask you about this today.
    What I want to ask about is the scope of a President's 
Article II powers because regardless of what Congress might 
decide to draft, if a President says under Article II, I can do 
anything, that President can make the congressional war powers 
essentially illusory. And I am very concerned about this 
administration in that regard.
    After the missile strikes against the Shayrat military base 
in April, Congressman Adam Schiff and I wrote a letter to the 
President asking for the legal justification for those strikes. 
I would like to introduce the letter as an exhibit. We have 
received no answer. The letter was dated April 24th.
    Senator Flake. Without objection.


    [The information referred to above is located at the end of 
this hearing transcript.]


    Senator Kaine. We had a hearing in October, and we had 
Secretary Tillerson before us. And I asked him the question of 
legal justification for the military strike in April in Syria, 
and he took it for the record and submitted a record answer 
that I am going to ask my staff to give you copies of. I would 
like to introduce that for the record as well.
    Senator Flake. Without objection.


    [The information referred to above follows:]


   [Extracted from--Responses to Additional Questions for the Record 
 Submitted to Secretary Tillerson by Senator Kaine--hearing of October 
                               30, 2017.]

Question on Syria strikes
    Question 5.  In April, Representative Schiff and I sent a letter to 
the President asking for the Administration's legal justification for 
the April 6th strike against the Shayrat military airbase in Syria 
(attached). I asked General Dunford the same question and he stated he 
would get back to me. To date, I still have not received a response. 
Can you please provide me with the legal justification under domestic 
and international law for these airstrikes?
    Answer. The April 6 U.S. missile strike on Shayrat airfield in 
Syria was not based on the authority of the statutory authorizations 
for use of military force that we have been discussing at this hearing. 
The President authorized that strike pursuant to his power under 
Article II of the Constitution as Commander in Chief and Chief 
Executive to use this sort of military force overseas to defend 
important U.S. national interests. The U.S. military action was 
directed against Syrian military targets directly connected to the 
April 4 chemical weapons attack in Idlib and was justified and 
legitimate as a measure to deter and prevent Syria's illegal and 
unacceptable use of chemical weapons.


    Senator Kaine. If you would each look at this because this 
suggests to me that this White House is taking a position about 
Article II power that would completely wipe out the Congress's 
power under Article I. We asked about the military 
justification. ``The April 6th U.S. military strike on Shayrat 
airfield in Syria was not based on the authority of the 
statutory authorizations for use of military force we have been 
discussing in the hearing, thus not 2001, 2002. The President 
authorized that strike pursuant to his power under Article II 
of the Constitution as commander-in-chief and chief executive 
to use this sort of military force, missile strikes, overseas 
to defend important U.S. national interests.''
    Can a President just say, ``I am defending important U.S. 
national interests'' and therefore wipe out any obligation to 
have a congressional declaration with respect to military 
action?
    Mr. Bellinger. I take that as a legal question. And the 
answer, which will make you unhappy, is yes. The President has 
broad power.
    Senator Kaine. Is it unlimited?
    Mr. Bellinger. It is not unlimited. It is not unlimited.
    Senator Kaine. Because if it is unlimited, would you not 
agree with me it would wipe out war powers that Congress was 
granted specifically in Article I.
    Mr. Bellinger. That is true. The answer that the 
administration gives here I think is basically just the 
textbook answer that the President has broad authority to order 
the use of force to advance national interests whether it is a 
peacekeeping mission, whether it was Libya, whether it is these 
limited strikes in Syria. And that is both the view of 
Presidents in Democratic and Republican administrations, and 
Congress has largely acquiesced in that.
    Senator Kaine. Let me challenge you on that in the 
Constitution.
    Mr. Bellinger. Please.
    Senator Kaine. Madison to Jefferson, in writing about what 
the division of power between Congress and the executive, 
basically laid it out and said we have to let the President 
have some power because Congress would be in recess and would 
be in Vermont. But when Jefferson was President and was 
grappling with the Barbary Coast Pirates, he said, ``I have the 
ability to defend against attacks on ships, but if I want to go 
defeat the navy, I need to get congressional approval.''
    If you allow a President just to say--and I am worried 
about this President. I went after the former President on the 
same thing. But if you allow a President to say, ``I am 
defending important U.S. national interests,'' and that is a 
talismanic phrase that would allow the executive to wage war 
without Congress under any circumstance, you have essentially 
eliminated the congressional power under Article I.
    And if I could unpack it further, in this particular 
instance, the White House asserted no imminent threat to the 
United States, no imminent threat to any U.S. person or 
personnel. They claimed no legal justification under either the 
2001 or 2002 rationale. They asserted no international legal 
justification. We had not been invited by Syria to invade their 
sovereignty. It did not meet the international definition, Mr. 
Bellinger, that you cited earlier.
    And so the assertion that we need no international 
justification, all we have to do is say we are defending a 
national interest, does that not worry you that that is just so 
plastic that a President would feel unconstrained and feel the 
ability to wage war completely without the authority of 
Congress? How could you square that with having Article I be 
meaningful?
    Mr. Hadley wanted to say something, and then Ms. Wormuth 
may as well. Then I will come back to Mr. Bellinger.
    Mr. Bellinger. So that is a lot of different questions, but 
let me try to quickly address them.
    On international law, I think there is not a clear basis 
under the UN Charter, but I would still like to have seen the 
administration explain why they felt it was justified under 
international law, if not legal. And I am unhappy that they 
have just not answered the question because it is important to 
explain why we are doing things or at least as consistent with 
international law as possible.
    Senator Kaine. You will notice that the question was asked.
    Mr. Bellinger. I did see that, and I wish that they had 
answered it. As a former legal advisor for the State 
Department, I like to see us saying that we are acting 
consistent with international law as best we can.
    On domestic law, there is certainly an upper limit, and I 
said that in my testimony. I think that is certainly what you 
are saying. This example in Syria, which was limited--it was 
just a couple of hours--is consistent with what Presidents of 
Republican and Democratic Parties have done for decades and 
decades. And if you think back with the----
    Senator Kaine. Is consistency the same as legality?
    Mr. Bellinger. Well, Congress has acquiesced in that over 
time.
    Senator Kaine. Is that the same as legality?
    Mr. Bellinger. To a certain extent, yes, Senator, because 
war powers are shared between the executive and Congress. And 
practice over time between what the Congress is willing to 
accept and what the executive branch asserts becomes law. So if 
you think about the invasions of Panama or Nicaragua or Grenada 
or President Obama in Libya for long periods of time----
    Senator Kaine. For which he was censured by the House of 
Representatives----
    Mr. Bellinger. I realize that.
    Senator Kaine [continuing]. In 2011.
    Mr. Bellinger. But Presidents have to assert important 
national interests, whether it is rescuing Americans, 
addressing a humanitarian crisis, addressing regional 
stability, a variety of different things.
    Senator Kaine. Is a humanitarian crisis not fundamentally 
different than war? When we are putting the military to do 
typhoon relief in the Pacific, we do not have to have a debate 
about that under war powers. But firing missiles at a foreign 
country without an answer about what the legal justification 
seems to be fundamentally different.
    Mr. Bellinger. Well, it depends--in Syria, one day for an 
hour was not a lengthy period of time. I think that is well 
within the President's war powers.
    I think what you are concerned about, though, which all of 
us addressed in our testimony--I as a legal matter and my 
colleagues as a policy matter--if we are talking about a 
prolonged or substantial use of force against a country, 
particularly one that may provoke, unlike Libya which was 
prolonged and substantial, but particularly one that will 
provoke likely a counter-attack on the United States, its 
allies, its civilians, potentially resulting in tens of 
thousands or hundreds of thousands of deaths, that is probably 
going to bump up against Congress' power to declare war.
    So to end this, there clearly is an upper limit. The 
President has a lot of authority to act without constitutional 
authorization. There is a whole history of that. But what you 
are saying is, is it unlimited and did this answer say that it 
was unlimited? I think, no, it is not unlimited. And I do not 
think that at least this answer said that it was unlimited.
    Senator Kaine. I have gone over, and I appreciate my 
colleagues' patience. And I will follow up in writing for the 
other two witnesses.
    Thanks.
    The Chairman [presiding]: Absolutely.
    Senator Young?
    Senator Young. Well, I thank the chairman for holding this 
hearing and the ranking member for his leadership in it as 
well.
    Thank you to our panelists.
    There is no more consequential issue than the authorization 
of the use of military force and doing all we can as Members of 
Congress to get it right as we look to authorize these sorts of 
actions.
    We are a decade and a half into fighting what has been 
branded the war on terror, and this is a hydra-headed sort of 
threat. It could be a quite long war. And all of us want to get 
this right because of the nature of this--because of the 
gravity of the decisions here. And we not only want to get it 
right. Some of us may want to get it exactly right in terms of 
how our authorization of the use of military force is 
structured.
    And so I would like to approach this slightly differently 
and talk about--we are supposed to deliberate and then act. 
This is a deliberative body in Congress. But what happens when, 
I think quite appropriately and necessarily, with the 
chairman's leadership, we have decided to move forward, have 
this serious conversation through a series of hearings and so 
forth, we robustly deliberate in a public fashion on the 
record, and what if some of us cling to these perfect AUMF 
models in our head and are unwilling to make principled 
compromises? What if we fail to act after we deliberate on the 
question of whether or not to declare a war or authorize the 
use of military force? Do we send messages to our troops in 
harm's way, to our adversaries that we do not want to send? But 
perhaps more importantly or as importantly, do we establish a 
legal precedent where we have considered acting and not acted, 
therefore future administrations may say there are broader 
Article II authorities than have ever been asserted before, 
citing the Congressional Record, these deliberations, and 
others?
    So I would like each of you maybe to address this legal 
component, this legal risk that each of us might be 
establishing by deliberating now that we have crossed what I 
regard as kind of a threshold but may be failing to act. Mr. 
Hadley?
    Mr. Hadley. I think we would all say the better course is 
for you to agree on a new, revised AUMF because it will show 
the American people that the Congress is behind this effort in 
the name of the American people.
    Secondly, I think there is a risk that if you do not reach 
an agreement, it looks like Congress is abdicating to the 
President and to the executive branch these authorities, which 
will strengthen the arguments that Senator Kaine and John 
Bellinger were talking about.
    But you are not out of business. I mean, we have been 
talking about prior authorization, but there is the after-the-
fact. And I would remind the committee that after President 
Bush announced the surge in Iraq, there were legislative 
efforts that were adopted by the House of Representatives that 
defunded it and placed operational limits that would have made 
the surge impossible. And this was Congress asserting its 
oversight and asserting its authority over a military 
operation. So we can have this discussion about prior 
authorization--is it required from Congress or not? But if the 
President goes ahead and uses these authorities that have been 
established and Congress disagrees, you have lots of tools to 
get at the President post fact.
    Ms. Wormuth. I would just add I completely agree with Mr. 
Hadley that I think the reason that I have favored developing a 
new AUMF is that I think it will send a very strong signal to 
our military but also to the world at large that Congress and, 
by extension, the American public are behind what we are trying 
to do. And I think that is very important. I sat on this side 
of the table as an administration witness a number of times and 
asserted that whatever we were doing that was being 
challenged----
    Senator Young. I am grateful. My time is winding down here.
    Ms. Wormuth. Apologies.
    Senator Young. No, no. That is all right.
    I understand I think all of us could articulate here why an 
AUMF is desirable or might be desirable, why we reaffirm our 
prerogatives here. But perhaps someone can discuss this, as Mr. 
Hadley has. Do we establish some sort of precedent and thereby 
broaden perceived Article II authorities by having this public 
conversation and by failing to act?
    Mr. Bellinger. The answer is yes, Senator. There are two 
legal problems here. One is the issue that you and Senator 
Kaine are getting at. And I can tell you from outside of 
Washington, there is much talk about Congress' abdicating its 
war powers and, as a result, accreting to the President more 
war powers. If Congress does not act, it leaves successive 
Presidents--it is not Republicans or Democrats. Senator Obama 
may have actually stretched things farther than President Bush 
did in terms of the conflict in Libya and the conflict with 
ISIS, which were not authorized. When Congress does not act, 
Presidents will.
    And then there are narrow legal problems as well that we 
discussed last time on detention and other issues.
    Senator Young. So we are all free agents in the Senate. 
These are decisions individually each of us has to make. I will 
just say from this Senator's point of view we need to be 
prepared to make principled compromises even on an issue as 
consequential, even on an issue where we seek such perfection 
as authorizing the use of military force. I have reached out to 
several offices, Republican and Democrat, trying to synthesize 
different approaches, and there are others who want this as 
well on the committee. I think we can get there from this 
Senator's vantage point.
    Thanks, Chairman. I yield back.
    The Chairman. Just before turning to Senator Merkley, look, 
I think everyone knows I would like for us to have a new AUMF. 
I do believe that there is legal grounding for the current 
President, and the President before him, to do what they are 
doing.
    Just for what it is worth in listening to the debate--it 
sounds like what we are saying is that we need to write a new 
authorization, which I agree with--I mean, we are working right 
now with the committee to make that happen--for Congress to 
weigh in on what the administration is already doing to make us 
relevant. It is kind of an odd thing. So, the activity is 
underway, and for us to be relevant, then we need to pass 
something. I am sorry. It is just a little bit of a weird 
thing.
    I also say that the difficulty here, as we all know, is 
what we are really doing is we are authorizing something that 
is not the standard war. I mean, we are basically saying we are 
allowing the President of the United States to conduct 
activities to police around the world in countries all over the 
world activities relative to ISIS. And we know it is going to 
go on for another 20 or 30 years. I am slightly exaggerating to 
make a point, but it is going to go on for a long, long time. 
We have no idea where it is going. We have no idea which 
entities are going to mutate out of this. And so it makes it a 
little more difficult than saying we are declaring war as we 
did in World War II or some other place.
    So again, I am not trying to get us a bye here. I am just 
saying it is a challenge to try to craft something that takes 
into account that this is activity that is going to take place 
in places we have not even thought of today.
    Senator Cardin. Mr. Chairman, could I just comment just 
very briefly on it because this is helpful for us because we 
are trying to get to an AUMF.
    It seems to me that the overwhelming majority of Members of 
Congress want to support the use of our military to fight ISIS. 
We think that is an appropriate use. What we do not want to see 
happen again is what happened in 2001 when we passed the 
authorization that is misused by the executive branch.
    And I just think this comment here about Article II powers 
that from my position, I do not understand why we do not pass 
an authorization that is current to what they need today. If 
the President runs into a circumstance, he has the Article II 
powers that have been adequately explained. If it becomes 
prolonged, he should seek the change from Congress.
    So I would just point out I do not think we have to be too 
concerned about not giving the President enough authority. 
Whatever we do, he will have enough authority.
    The Chairman. And I think we all know we are circulating 
some principles now, and I think we have hit what I hope is a 
sweet spot as it relates to what a new authorization ought to 
be. But I am just saying the complexity of it is that we are 
talking about one that is not in a specific country with 
necessarily a specific group that we know is going to mutate 
just as the 2001-2002 authorizations have. So again, not giving 
us a pass. It is just a little different kind of thing. It is 
really an ongoing policing activity with our military and many 
other instruments that we have within our government 
potentially in places that we do not even know of today, which 
makes it somewhat different.
    So, Senator Merkley.
    Senator Merkley. Thank you, Mr. Chairman, and thank you to 
all three of you.
    And, Mr. Hadley, I was intrigued by your noting that if we 
think that the chapter 10 powers are being overused, we could 
constrain them legislatively. But if you read the Title 10 
powers, they provide no foundation for accompanying forces, and 
it is in direct contradiction to the War Powers Act, which says 
that the introduction of armed forces includes, ``the 
assignment of a member of such armed forces to command, 
coordinate, participate in the movement or accompany the 
regular or irregular military forces of any foreign country or 
government when such military forces are engaged or there 
exists a threat that such forces will be engaged in 
hostilities.''
    So you are asking us to come back and write what has 
already been written, is sitting in the law. And so I find that 
rather absurd.
    The fact is it just gets routinely ignored, and then the 
question becomes where are the teeth? If the law is already 
written quite clearly by determination, has been signed in the 
oval office and lays out this boundary, but it is absolutely 
ignored, where are the teeth? And you have responded to that 
just a moment ago by saying, well, Congress can come back and 
cut off funds. Well, Congress is very reluctant to cut off 
funds in such a precise and detailed micromanagement fashion.
    The courts really provide no teeth for this either in 
general because the Supreme Court--I am asking this more as a 
question, but basically defers to the executive on issues of 
national security.
    So am I right to just basically say we laid it out quite 
clearly? The administration violates it with impunity, and we 
basically have no teeth except what you are saying to come back 
and cut off funds?
    Mr. Hadley. I think that is a little harsh. This is an area 
where Congress and the President are condemned to struggle, and 
I think the only real approach is for the Congress and the 
President to sit down and develop some rules of the road. Where 
is that line that Congress really wants to be in on the ground 
floor and be asked for authorization and where is that line 
where the Congress actually is willing to let the President act 
and then exercise oversight and tell him what is wrong?
    And it shows the problems of how these things--if you take 
Christine's rule, which is a very good one, and cabin Article 
10, so train and equip means you cannot go out with someone to 
a military operation against the bad guys, and the military 
wants to do it, then they will invoke the 2001 or 2002 
authorization to use military force to do it, which authorizes 
a lot of actions below a level that requires or would suggest 
the President needs to come back to Congress.
    Senator Merkley. Okay.
    Mr. Hadley. It is hard to do by drawing lines, and I think 
it has got to be by an ongoing consultation process, which is 
why I think the consultation approach is better than the Wars 
Power Act.
    Senator Merkley. Let me just point out that this 
administration is absolutely allergic to consultation or 
transparency when it comes to these issues.
    But as you noted, that brings us to the question of the 
authorization to use military force. And I am fascinated by 
listening to expert after expert cite the associated forces 
clause of the AUMF, which does not exist, which was completely 
invented as a justification of moving from what is clearly 
stated in the AUMF to giving broad ability way beyond what was 
in the AUMF, which is part of what has given rise to doing a 
new AUMF. But if we can invent language to insert into an 
existing AUMF, why can it not be inserted into the next AUMF?
    I am really concerned that the boundary of the clarity of 
law is so routinely violated now when it comes to these issues 
that we have put ourselves in an extremely difficult spot in 
terms of clearly articulating our responsibilities under the 
Constitution, if you will.
    And, Mr. Bellinger, you noted substantial and prolonged. I 
wanted to turn to North Korea. I was part of a congressional 
delegation that went to South Korea and China and Japan to hold 
conversations throughout. I am not convinced the President has 
an understanding of the circumstances or even the ability of 
the conventional deterrence of North Korea to destroy Seoul, 
which has a broader population of over 20 million people within 
the boundaries, just a short distance--reach of artillery. But 
any attack on North Korea that is likely to produce an 
artillery response is certainly substantial in my mind.
    And in that regard, do you have a sense that the President 
would need to come to Congress for authorization to engage in 
such an act?
    Mr. Bellinger. Again, this gets at the issue of before or 
after. Certainly as a policy matter--and you have heard this 
from both my colleagues--if the President is considering any 
use of force against North Korea, unless it is just instantly 
in response to a shoot-down of an aircraft, there ought to be 
consultation.
    Neither the War Powers Act nor the Declare War Clause say 
that Congress has to authorize before a use of force. There 
would be certainly reasons why, but it could be afterwards. And 
so there should be consultation beforehand.
    I think what I am saying is although it is not crystal 
clear--and as you know, we can never find two lawyers who are 
going to agree. If the President were going to actually take a 
use of force against North Korea that is beyond the shoot-down 
of a single aircraft or something like that but that is going 
to result in the possible devastation that you and Senator 
Kaine have suggested, then it seems reasonably clear that under 
Article I that the Declare War Clause requires Congress to 
authorize that not necessarily before the fact, although there 
would be reasons to do it before the fact, but if the President 
were continuing a war afterwards and Congress did not authorize 
it, I think there is a good argument that the President was not 
acting consistent with either his powers or Congress' powers.
    Senator Merkley. When you think of the substantial and 
prolonged, are you using it as it has to be substantial and 
prolonged or either substantial or prolonged?
    Mr. Bellinger. I would say it would be ``or.'' There are 
certainly past cases where there has been a prolonged presence 
that really did not raise serious Declare War issues and they 
were substantial but were quite short.
    Senator Merkley. I appreciate that answer. I share that 
opinion, and I really hope the administration understands that 
it needs to consult before starting such a hostility.
    Thank you all very much.
    The Chairman. Thank you.
    Senator Isakson?
    Senator Isakson. I apologize to the panelists that I am 
late and I probably missed what I am getting ready to ask and I 
apologize in advance for asking a dumb question. But I happened 
to come in the middle of the discussion with Senator Merkley, 
and I want to get a couple things clear.
    In the case of the War Powers Act, the President has to 
come to Congress within 90 days of utilizing force for the 
Congress to authorize any continuation of that same force. Is 
that correct?
    Mr. Bellinger. That is correct. 60 days would be required 
to terminate and would have to ultimately terminate after 90 
days. That is what the War Powers Resolution says.
    Senator Isakson. But the President does have the authority 
to initiate such an action without congressional authorization.
    Mr. Bellinger. I would say there is not full agreement on 
that, but I would certainly say that is what the War Powers 
Resolution says that you have to notify within 48 hours of 
doing something, but the President has got 60 days or up to 90 
days to continue unless he gets authorization.
    Senator Isakson. You do not want to tie your military's 
hands behind their back in a conflict. The last thing in the 
world you want to do is constrict them from being able to do 
what is appropriate in that case I think. Thank you for that 
answer.
    And thank you, Mr. Hadley, for all your hard work on behalf 
of the country and previous administrations and what you are 
doing now.
    What you said I think I wholeheartedly agree when you made 
your comment about the commitment of resources and forces. It 
should be done always in consultation with the Congress, but it 
ought to be consultation not some mandatory hoop to jump over. 
Is that correct?
    Mr. Hadley. Yes, sir. That would be my view.
    Senator Isakson. And hopefully, that consultation would 
always be going on so you got prepared for what might seem to 
be to the public instantaneous, but it was after a long period 
of trying to avoid what happened.
    Just for reference, in 1983--and I think I am right on this 
date. I could be off by a year or so--KAL-007, Korean Air 
Lines, was shot down over the South China Sea or somewhere in 
that part of the world. The Congressman from my district, who 
had the 7th district of Georgia represented in Congress, Larry 
McDonald, was killed in that particular shoot-down. And there 
is an example of a hostile act that was taken against a United 
States asset--or actually it was Korean Air Lines, but it was 
loaded with American citizens--where the President could have 
based on information he or she had or was delivered to them by 
intelligence sources--could have initiated a military act. It 
subsequently would have had to come to Congress to affirm. Is 
that not correct?
    Mr. Bellinger. That is correct. And there have been other 
situations where a President has taken an action in his 
constitutional powers and then sought ratification later.
    Senator Isakson. The only point was that there is a clear 
reference to a case that took place in the 1980s where an 
action of hostility was taken against American citizens in a 
commercial airliner and the President could have done that and 
did not and consulted with the Congress.
    So I think the parameters that we have laid out now for 
Congress and for the President of the United States are 
sufficient to act expeditiously if attacked but always before 
the ratification of the Congress even if it is retroactive, as 
in the case of sudden hostilities.
    So I think I just want to go on record as saying I agree 
with Mr. Hadley's comment exactly that our role is one of 
consultation, leading up to the final vote which would take 
place under the War Powers Act, but initially there is no need 
for consultation if it is a hostile attack against us right 
away. I just wanted to get that on the record.
    The Chairman. Thank you very much. Thanks for being here.
    Senator Shaheen?
    Senator Shaheen. Thank you, Mr. Chairman.
    I am sorry I missed much of the discussion, but just to 
follow up a little bit on your line of questioning, Senator 
Isakson, has there been a suggestion that we cannot respond to 
a hostile attack without an authorization for use of military 
force? Was that what you were suggesting, Senator Isakson?
    Senator Isakson. No, I was not suggesting that.
    Senator Shaheen. Okay. I just wanted to make sure I did not 
misunderstand something.
    Mr. Hadley and Ms. Wormuth, both of you pointed out that it 
is important for us, as we think about how we address potential 
conflicts, to recognize that we have not only tools of the 
military but tools from our diplomatic efforts and our aid 
efforts. I just wonder if either one of you can talk about 
whether you think we are effectively now making use of all of 
those tools as we look at the various conflict areas that we 
are facing. Let us say North Korea first and then also--
probably North Korea. If you could just address that 
specifically.
    Ms. Wormuth. I would be happy, Senator Shaheen.
    As I said in my statement, I have concerns that generally 
the table has tilted for a variety of different reasons too 
much towards using the military tool to the detriment of our 
others. There are many reasons for that. Our diplomatic 
resources are not as well resourced as I think they need to be 
even under the Obama administration and previous 
administrations, but certainly I would have that concern now. 
And I think given the circumstances in North Korea, you very 
much want to use that diplomatic tool as much as you can. We 
are using the economic tool in the form of sanctions, and I 
think that is very appropriate. But I think we need to do more 
as a country to try to give more resources to the agencies that 
do development and reconstruction, that do diplomacy because 
those are just as important, and in some cases, more important.
    Part of our challenge I think is generating civilian 
capacity that can be ordered into dangerous places is difficult 
to do. And I do not have all the answers for how to fix that.
    Senator Shaheen. Well, Mr. Hadley, as you talk about stage 
4, where do we want to get in conflict areas, and we think 
about where we currently have military operations right now, 
Afghanistan, Iraq, Libya, Somalia, I would argue that it is 
maybe even more important in most of those places for us to 
have the diplomatic and economic assistance tools than to 
follow on or at the same time with our military than in some 
cases to have the military there because if we are going to 
resolve the military conflict and we do not have anything at 
the end for stage 4, we are not going to achieve our 
objectives. Would you agree with that?
    Mr. Hadley. I would, Senator, and I agree with what 
Christine said. You know, we are still not as good about how to 
mix the security, the developmental, the governance aspects 
that are required to bring stability over the long term to 
places like Syria and Iraq. And the thing I am worried about is 
that we have heard a lot about military operations to clear 
those areas of ISIS, a lot less of how we are going to help 
those people in Syria and Iraq build institutions that will 
prevent ISIS from coming back. You know, people say, well, that 
is nation building and we do not do nation building. It is 
really not. It is taking steps to help people build 
institutions that will resist terrorists coming back that might 
threaten the United States.
    Senator Shaheen. And in your testimony, Mr. Hadley, you 
mentioned the need to maintain public support for ongoing 
military operations. I certainly agree with that 100 percent as 
a student of the Vietnam War growing up and recognizing what 
happened in this country during that time. But does 
transparency about our military deployments and the rules that 
we are operating under improve or impede the cooperation that 
we have with our allies and partners and our efforts?
    Mr. Hadley. Well, there certainly should be transparency 
with the Congress, and that could be done in a way where it is 
all public and transparent to the public. In some instances, 
because of those considerations, you are going to want to do it 
in a closed setting so that Congress is aware. But Congress 
should be aware I think. There is no reason why Congress should 
not be aware about the size and scale of the deployments.
    I think the problem is if you only talk about the 
deployments, you are not going to generate the kind of public 
support you are talking about. You have got to talk about why 
are we there, why does it threaten Americans' interests, what 
is at stake, what is our strategy, how we are implementing the 
strategy, why we think we can succeed, and then you put all the 
facts and figures into context. But, you know, we have a 
tendency to go right to the facts and figures and none of the 
context, and therefore, Americans do not really know what we 
are doing and why we are doing it. And that is the point 
President Bush kept--as I talked in my testimony, if you are 
going to engage our military forces, the President needs to be 
explaining the context, the why, the how, and why it matters 
over and over again to the American people to maintain that 
support that is so crucial over the long term because we are 
going to be at this for a long time. And the American people 
have got to understand that and why it is important and that we 
have a strategy and that it is working. That is just essential 
because we are going to, unfortunately, be at this for a while.
    Senator Shaheen. Thank you.
    Thank you, Mr. Chairman.
    The Chairman. Thank you very much.
    Senator Coons?
    Senator Coons. Thank you, Chairman Corker, Ranking Member 
Cardin, for holding this important hearing and to this very 
experienced, seasoned panel for the time you are dedicating 
with us today.
    I could not agree with you more, Mr. Hadley, on the point 
you were just making. We will be at this a very long time. The 
American people need to understand what our strategy is. We 
need to understand what our strategy is. And they need to 
understand where our troops are fighting and why they are 
fighting. Both of you have made the point in your testimony 
that public support is vital for the success of military 
missions, diplomatic missions, development missions abroad.
    And I think the October attack that took the lives of four 
American soldiers in Niger was a reminder, a bracing reminder, 
to us. Many Members of Congress are unaware that we have 
service members deployed in West Africa or supporting 
counterterrorism missions in the Philippines or deployed in the 
Horn of Africa. So our current system of notification is 
demonstrably under-performing. Can I put it that way?
    How would you suggest we strengthen this dialogue between 
the President and Congress in a way that makes more certain 
that Members of Congress are aware of where and how and when 
our forces are being deployed and, through us, engages the 
American people? And I will suggest my answer, and then see 
what you think of it, which is that although an exercise to 
craft a bipartisan AUMF may or may not change things in the 
short term in particular jurisdictions on the ground, that 
exercise is exactly pointed at forcing the conversation between 
the executive and the legislation branches, forcing it between 
the parties here on this committee, and then engaging the 
public in some dispute about whether we are or are not 
overreaching in our missions in the world.
    Do you think I am right about that, or do you think there 
are other ways we can improve transparency and engagement by 
the public? If you would, Ms. Wormuth, Mr. Hadley. And then I 
have a different question for Mr. Bellinger.
    Ms. Wormuth. I certainly think the effort to try to craft a 
new AUMF, an updated AUMF, is a very important piece of having 
that more transparent dialogue and helping Americans understand 
where we are, why we are there, what we are trying to do, and 
to give the public an opportunity to be engaged in that debate.
    But I do not think it ends there. For example, what 
happened in Niger was actually not covered under AUMF, as you 
know. That was just a capacity building exercise that ran into 
enemy contact when it was not expected. So I think it has to be 
bigger than that. There has to be, I think, a broader effort to 
talk to Americans on a regular basis about what we are doing. 
And I think you cannot over-communicate. Members of Congress, 
the President, and the United States cannot over-communicate 
when it comes to these kinds of important things that we are 
doing.
    Senator Coons. Mr. Hadley?
    Mr. Hadley. I think you are absolutely right. It is one 
forum for conducting that conversation. Hearings are another. I 
read the transcript of the hearing this committee had with 
Secretary Mattis and Secretary Tillerson on use of force and 
AUMF. I thought it was terrific.
    And finally, informal consultations. When I was national 
security advisor, I was up on the Hill a lot during the 2005 
and 2006, the grim days about the war in Iraq talking 
informally with Members of Congress, some of whom had sons and 
daughters in that conflict. They were some of the most 
difficult conversations I had. Terribly important.
    So I think there are a lot of different forums where this 
conversation needs to occur.
    Senator Coons. Thank you.
    Mr. Bellinger, you have called for Congress to revise and 
update the War Powers Act. That has already been discussed with 
a number of members. And there was a reference--I think you 
made it--to a McCain-Kaine bill I think initially introduced 
several years ago.
    What do you think are the elements that should most be 
updated, and how would those revisions strengthen our 
oversight? Help me understand how that would contribute to this 
dialogue.
    Mr. Bellinger. So thanks very much for that question 
because really a lot of this is about the War Powers Resolution 
and whether Congress is requiring compliance with the War 
Powers Resolution, whether the President is actually following 
it. So I hope you all really will have a look at it.
    So two things. One, the recommendation of the National War 
Powers Commission, which was a serious commission chaired by 
Jim Baker and by Warren Christopher, revised the War Powers 
Resolution in a very narrow way, really just to say instead of 
these 48-hour reporting requirements and 60-day termination 
requirements, which Presidents of both parties have largely 
been ignoring or at least stretching, it should just be all 
about consultation.
    Now, one could argue that maybe that is too narrow, that we 
are taking what was a fairly restrictive bill and just turning 
it into a consultation requirement. But this is, I think, what 
we have been talking about for the last 90 minutes, is there 
needs to be better consultation. And maybe you can put more 
meat on those bones in terms of consultation.
    I will just mention a couple of the particular problems and 
then stop. Because of the types of modern conflicts that we 
have now, it is very difficult for Presidents to report things 
within 48 hours that may be classified. Congress has now 
started accepting classified reports. The termination 
requirement is really the biggest problem in that if Congress 
will not authorize a new authority, it puts the President in 
the bind of either stopping something that actually has popular 
support, like the ISIS war, declaring the War Powers Resolution 
unconstitutional, which the President does not really want to 
do, or taking the third option, which is what all of you have 
expressed concern about, is to just take the ball and run with 
it and stretch whatever authorization the President has been 
given beyond anything that is recognized. The War Powers 
Resolution was set up in a way that ought to work but has not.
    Senator Coons. Thank you.
    The Chairman. Thank you. Are there any additional follow-
ups? Senator Shaheen?
    Senator Shaheen. I am not sure who to direct this to. I do 
not think it has come up. But, Mr. Hadley, you talked about 
reading the transcript of the hearing we had on the AUMF. And 
one of the things that was raised at that hearing was a 
question about the current status of the conflict in Korea. And 
so maybe this is for you, Mr. Bellinger.
    Does the fact that we do not have a peace treaty with North 
Korea change the status of what the President could do in terms 
of going into North Korea without an AUMF or without consulting 
Congress?
    Mr. Bellinger. I know the argument. I do not think that 
really flies. The argument is that the war, the armed conflict 
with North Korea has never actually ended, that there has been 
an armistice, and that because the North Koreans have broken 
the armistice and, in fact, have publicly said that they are no 
longer observing it, that under traditional principles of armed 
conflict, if there is merely an armistice which is then broken, 
then we go back into a state of armed conflict. So you could 
get some academic lawyers to say--sort of a surprise to 
everybody--we are actually in a state of armed conflict with 
North Korea right now, which means that we could immediately 
start using force against them without congressional 
authorization because we are in an armed conflict. That is the 
theoretical argument. I just think 60 years later that I would 
not buy that.
    Senator Shaheen. And, Mr. Hadley and Ms. Wormuth, do both 
of you agree with this?
    Ms. Wormuth. Yes. I am not a lawyer, but that is sensible 
to me.
    Mr. Hadley. I think the argument is too clever by half, as 
they used to say.
    Senator Shaheen. Thank you.
    The Chairman. Senator Markey?
    Senator Markey. Thank you, Mr. Chairman, very much.
    Mr. Hadley, how do you think North Korea would respond to a 
U.S. nuclear first strike?
    Mr. Hadley. Well, I do not quite see a scenario where the 
U.S. would make a nuclear first strike, but I think the obvious 
answer is it would be----
    Senator Markey. It is a discussion that we have heard out 
of some parts of the White House that we could take preemptive 
action against the existing nuclear structure in North Korea. 
What do you think Pyongyang would do? Would it lay down its 
arms, or do you think it could escalate?
    Mr. Hadley. Well, the risk that everybody has talked about, 
which makes the military option so difficult, is what was 
mentioned by members of this committee this morning, the fact 
that North Korea is able to hold Seoul, a city of almost 20 
million people, hostage with artillery, rockets, mortars, and 
missiles and cause enormous loss of life. And that puts 
enormous constraints on any consideration of use of military 
force because of the potential for North Korea retaliation.
    Senator Markey. So given the fact that it would lead to, 
most likely, a massive increase in hostilities between North 
Korea and at least South Korea but the United States, do you 
think that the United States--do you think the White House 
should be required to get specific statutory authorization from 
Congress before ordering a military attack?
    Mr. Hadley. We all, I think, have said in our testimony 
this morning that this is the kind of scale of operation that 
would--in our judgment is something the President should go to 
the Congress for.
    But I would just say you can see the situation getting to 
the point where the choices become excruciatingly difficult. If 
North Korea demonstrated an intercontinental range ballistic 
missile able to reach the territory of the United States, if it 
demonstrated that it had miniaturized a nuclear warhead to go 
on the top of such missile, and if we had intelligence that it 
was readying on a launch pad such a missile, that is going to 
put enormous pressure on the President to make some kind of 
preemptive action, if he has the capacity to do so, in order to 
protect the citizens of the United States.
    This is why what North Korea is doing is so dangerous, is 
that it can evolve into situations that will pose 
excruciatingly difficult choices for the President and for the 
Congress.
    Senator Markey. Exactly. I am glad you said ``and the 
Congress.'' So should the Congress be involved in that decision 
if the President wants to launch a preventative nuclear attack 
on North Korea?
    Mr. Hadley. I think one of the things that comes out of the 
discussions we have in this hearing today is that the North 
Korea situation is potentially so grave that Congress and the 
President ought to be having consultations on it now and 
continually so, as the chairman said, there are no surprises as 
we go through this very challenging time that we are facing in 
terms of managing North Korea.
    Senator Markey. Right.
    Let me ask you, Ms. Wormuth. Do you think that the Congress 
should have a vote before there is a preventative nuclear war 
which is commenced, understanding that the consequences could 
be that we do not hit all of the nuclear sites? There are 
clandestine sites there and the catastrophe is that they launch 
the first one that they have that we did not get at all of the 
troops and the Americans that are in North Korea and 200,000 
Americans are dead later on that afternoon. Should the United 
States Congress have voted on that scenario before the 
President is allowed to launch a preventative nuclear strike?
    Ms. Wormuth. I think, Senator, we had a conversation--I do 
not think you were in the room--a little bit earlier about the 
fact that the President Bush secured the authorization to go 
potentially go into Iraq many months before we actually did the 
invasion and that one of the benefits of that was that it 
demonstrated very visibly to the world, enemies and friends 
alike, that we were prepared to do that and it strengthened our 
diplomatic hand. So I can see a circumstance where something 
like that would be beneficial.
    And I certainly agree with Mr. Hadley that the military 
consequences of getting into kind of an engagement with North 
Korea are going to be substantial and I believe prolonged, and 
I think it would be very healthy for Congress to have a say in 
that because the American public is going to have to be 
prepared to support the consequences of that.
    Senator Markey. Mr. Bellinger, I know you have already 
answered the question.
    Mr. Bellinger. No, and there is a legal component to this. 
A nuclear strike against North Korea I think would bump up 
against the Declare War Clause. It would obviously end up in a 
prolonged, substantial conflict. So I think that is something 
that likely would require congressional authorization.
    The way I think that would work would be--one would hope--
there would be the consultation process beforehand on something 
of this sensitivity, presumably be done behind closed doors. 
And this is where, frankly, it would be like Syria, which 
sounds like apples and oranges, but President Obama came to 
Congress, consulted. He got the message that there was not 
going to be an authorization and that if he went forward, that 
he was going to be basically on his own on his Article II 
powers, and he decided not to go forward. The same thing would 
happen here if President Trump came and consulted and Congress 
said we are not going to authorize that either before or 
afterwards, then the President is on notice that he does not 
have congressional support. And in this case, probably unlike 
Syria, he probably would be violating the Congress' right to 
declare war. And he would be on notice beforehand and then 
would have to go on on his own.
    Senator Markey. And just to go back in time, it is also 
very important to know that we had UN inspectors on the ground 
in Iraq for 4 months and they could not find a nuclear program. 
There was no mushroom cloud as the next threat to the United 
States. And Dick Cheney just went on TV and lied that Saddam 
has reconstituted his nuclear weapons program, and he said that 
on Meet the Press to Tim Russert the day before the war began. 
So even with Congress playing a role, it still left a lot of 
discretion to the administration to mischaracterize what had 
been found on the ground by the UN inspectors. And we are still 
paying the price for that, but that was just a deliberate set 
of lies that were told to the American people.
    Thank you, Mr. Chairman.
    Senator Cardin. Mr. Chairman, if I might, I just want to 
thank our witnesses. We do that almost at every hearing. But I 
must tell you I think your testimonies have been extremely 
valuable to our deliberations, and I thank you for that. It has 
helped us a great deal. The chairman will say the record will 
be open for a certain number of days. I am going to just ask 
that you be available to help us as we try to sort through how 
to deal with this on an ongoing basis.
    I would just make one further observation, and that is, 
this is a tough subject under any scenario for us to deal with. 
So it is not an easy subject. But also we are dealing with an 
administration where the President is doing things with his 
national security team and their agencies, which are different 
than previous administrations, that present additional 
challenges to us in trying to figure out how is the best way to 
deal with the use of our military.
    So the challenges are really very, very difficult for us, 
but it is something we must deal with. And we thank you very 
much for adding a great deal to our understanding on our 
responsibilities.
    The Chairman. I want to thank you all.
    Mr. Bellinger, I do not know that I want to leave open the 
last comment about Syria. We did pass out of this committee an 
authorization for the use of force. And I do not know if we 
will ever know fully whether the President, who had a 10-hour 
operation planned that I think did certainly firmly sit within 
his presidential powers at the time--had a 10-hour operation 
planned where no boots were going to be on the ground and 
whether that was an act to keep from acting by coming to 
Congress or whether it was an act to respect Congress' role we 
will never know. And I am not trying to be pejorative here. I 
do know this committee acted and passed one out.
    Certainly in fairness, we were in the height of an election 
campaign. There was no question that people on my side of the 
aisle who, generally speaking, would have supported this effort 
under maybe a President of their own party, no doubt rebelled 
in ways that I was very, very surprised. So who knows how the 
mix of that would have ended up.
    Again, it could have been done easily without an 
authorization. No question based on the circumstances at hand.
    I was really proud of this committee and the way that it 
acted during that time. What was really at stake--you know, the 
Friday evening walk around the White House that took place--who 
knows?
    Mr. Hadley, did you want to say something in response?
    Mr. Hadley. I just wanted to say I have great respect for 
Senator Markey, and I understand his comment. I just want to 
say that from the standpoint of the Bush administration, while 
the inspectors were not able to find WMD, the intelligence 
community was telling us that they had stockpiles of chemical 
weapons, biological weapons, and a revived nuclear program. And 
that was the basis under which we were operating. It was not a 
case of knowing lies, but it was a case of intelligence that 
was wrong.
    Thank you.
    The Chairman. Thank you. I appreciate you making that 
point.
    And with that, again, I want to agree with Senator Cardin. 
Outstanding testimony. We thank you all for your service to our 
country in this regard but in other regards also. And I hope at 
some point all of you are back in a more formal capacity in 
that regard.
    With that, the questions will remain open until the close 
of business Friday. We know each of you have other 
responsibilities. To the extent you could answer those in a 
fairly prompt manner, we would also appreciate that. Again, 
thank you.
    And with that, the committee is adjourned.


    [Whereupon, at 11:21 a.m., the hearing was adjourned.]



                              ----------                              


              Additional Material Submitted for the Record

   Letter sent to President Donald J. Trump by Senator Tim Kaine and 
 Congressman Adam B. Schiff regarding the April 6, 2017 strike against 
                 the Shayrat Military Airbase in Syria

               [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



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