[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
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web:
http://www.govinfo.gov
U.S. GOVERNMENT PUBLISHING OFFICE
36-576 PDF WASHINGTON : 2019
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.
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\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
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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
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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\
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\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.
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\8\ https://www.foreign.senate.gov/imo/media/doc/
062017_Bellinger_Testimony.pdf
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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\
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\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).
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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\
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\11\ http://web1.millercenter.org/reports/warpowers/report.pdf
\12\ http://thehill.com/blogs/floor-action/senate/195704-senate-
bill-amends-war-powers-act
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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\
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\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.
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\14\ https://www.whitehouse.gov/the-press-office/2017/04/08/letter-
president-speaker-house-representatives-and-president-pro-tempore
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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.
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\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.
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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.
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\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
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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.]
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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
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