[Senate Hearing 115-639]
[From the U.S. Government Publishing Office]
S. Hrg. 115-639
THE AUTHORIZATIONS FOR
THE USE OF MILITARY FORCE:
ADMINISTRATION PERSPECTIVE
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
OCTOBER 30, 2017
__________
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COMMITTEE ON FOREIGN RELATIONS
BOB CORKER, Tennessee, Chairman
JAMES E. RISCH, Idaho BENJAMIN L. CARDIN, Maryland
MARCO RUBIO, Florida ROBERT MENENDEZ, New Jersey
RON JOHNSON, Wisconsin JEANNE SHAHEEN, New Hampshire
JEFF FLAKE, Arizona CHRISTOPHER A. COONS, Delaware
CORY GARDNER, Colorado TOM UDALL, New Mexico
TODD, YOUNG, Indiana CHRISTOPHER MURPHY, Connecticut
JOHN BARRASSO, Wyoming TIM KAINE, Virginia
JOHNNY ISAKSON, Georgia EDWARD J. MARKEY, Massachusetts
ROB PORTMAN, Ohio JEFF MERKLEY, Oregon
RAND PAUL, Kentucky CORY A. BOOKER, New Jersey
Todd Womack, Staff Director
Jessica Lewis, Democratic Staff Director
John Dutton, Chief Clerk
(ii)
C O N T E N T S
----------
Page
Corker, Hon. Bob, U.S. Senator from Tennessee.................... 1
Cardin, Hon. Benjamin L., U.S. Senator from Maryland............. 3
Tillerson, Hon. Rex, Secretary of State, U.S. Department of
State, Washington DC........................................... 6
Prepared statement........................................... 8
Mattis, Hon. James, Secretary of Defense, U.S. Department of
Defense, Washington, DC........................................ 9
Additional Material Submitted for the Record
Statement for the Record Submitted by Human Rights First......... 55
Responses to Questions for Secretary Tillerson
Questions from Senator Corker................................ 58
Questions from Senator Cardin................................ 60
Questions from Senator Young................................. 61
Questions from Senator Menendez.............................. 61
Questions from Senator Portman............................... 66
Questions from Senator Shaheen............................... 67
Questions from Senator Kaine................................. 68
Responses to Questions for Secretary Mattis
Questions from Senator Corker................................ 69
Questions from Senator Cardin................................ 71
Questions from Senator Flake................................. 71
Questions from Senator Menendez.............................. 72
Questions from Senator Young................................. 75
Questions from Senator Shaheen............................... 76
Questions from Senator Isakson............................... 76
Questions from Senator Kaine................................. 77
Questions from Senator Portman............................... 78
CIA Memorandum for the Director: Use of Nuclear Weapons in the
Vietnam War--18 March 1966..................................... 81
Letter Expressing the Trump Administration's Opposition to S.J.
Res. 41 and S.J. Res. 43....................................... 93
Navy Contract Solicitation for Personnel Support, Part 1......... 95
Navy Contract Solicitation for Personnel Support, Part 2......... 97
(iii)
THE AUTHORIZATIONS FOR
THE USE OF MILITARY FORCE:
ADMINISTRATION PERSPECTIVE
----------
MONDAY, OCTOBER 30, 2017
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The committee met, pursuant to notice, at 5:00 p.m., in
Room SD-419, Dirksen Senate Office Building, Hon. Bob Corker,
chairman of the committee, presiding.
Present: Senators Corker [presiding], Risch, Rubio,
Johnson, Flake, Gardner, Young, Barrasso, Isakson, Portman,
Paul, Cardin, Shaheen, Coons, Udall, Murphy, Kaine, Markey,
Merkley, and Booker.
OPENING STATEMENT OF HON. BOB CORKER,
U.S. SENATOR FROM TENNESSEE
The Chairman. The Foreign Relations committee will come to
order, and I want to deal with two housekeeping issues, if I
could. I know we have a number of people here in the audience,
some of whom sometimes like to express themselves. We thank you
for being here.
In the past when there have been interruptions, on occasion
I have been able to have people un-arrested, but we have
stopped that. So, please, do not do anything that causes you to
have to be escorted out of the room because then the process
continues with--being arrested is fairly unpleasant, and I
would hate to see you go through that process.
Secondly, we have a vote. We actually have two votes today,
and so, which is unfortunate. What we have talked before about
doing is adjourning the hearing at about seven minutes to six,
everybody rushing down and actually voting on the tail end of
the first vote, the beginning of the second vote. There will be
no speaking before the second vote, and then if we could hustle
back and keep going. I know General Mattis--Secretary--excuse
me--Mattis has a meeting he would like to attend. I know others
want to complete our work in an appropriate way.
So, with that, I would like to thank Secretary Tillerson
and Secretary Mattis for being with us today to share the
administration's perspective on the Authorizations for the Use
of Military Force. We are grateful to both of you for your
service to our country and your willingness to come here again
as we continue this critical discussion on behalf of the
American people.
Oversight and debate of the 2001 AUMF is something in which
this committee has been engaged for as long as I have helped
lead it, beginning as ranking member in 2013. At that time,
many of us from both parties sought to craft a revised
authority to enable the President to address the threats we
face from terrorism while ensuring an appropriate role for
Congress.
When President Obama submitted an ISIS AUMF to Congress in
February of 2015, our committee again held a hearing and
debated the issue, but there was really no effort on the part
of the White House to actually enact a new authorization. This
year, we have already held two full committee hearings on this
important topic, a public hearing in June with private
witnesses and a classified briefing with Secretaries Tillerson
and Mattis in August, and we thank you for that. We have been
working to schedule this public hearing since that time.
Numbers of members both on and off this committee have
raised questions about the executive's authorities with respect
to war making, the use of nuclear weapons--the use of nuclear
weapons, and, from a diplomatic perspective, entering into and
terminating agreements with other countries. As I have
mentioned publicly, this is the beginning of a series of
hearings where our committee will also examine those issues.
But today it is my hope we will remain focused on the topic at
hand, the 2001 AUMF and the 2002 AUMF for Iraq.
The President's de facto ability to initiate conflict has
grown in an age of advanced technology, including the use of
unmanned drones and war from a distance where large numbers of
boots on the ground are not necessary to conduct a very
significant military engagement. Examples of significant
military actions by recent presidents relying solely on Article
II of the Constitution include air strikes in Kosovo, regime
change in Libya, and the April missile strike against the Assad
regime in Syria.
In his last War Powers Resolution letter to Congress, the
President identified the following 19 countries where U.S.
military personnel were deployed and equipped for combat:
Afghanistan, Iraq, Syria, Yemen, Somalia, Libya, Kenya, Niger,
Cameroon, Uganda, South Sudan, Democratic Republic of Congo,
Central Africa--African Republic, Djibouti, Jordan, Turkey,
Egypt, Cuba, and Kosovo. As this month's deadly attack in Niger
proved, those forces can find themselves in combat at any
moment.
As our men and women in uniform continue to meet threats
around the world, I hope that our witnesses can help us examine
what the appropriate oversight role for Congress is, and how we
can work together to ensure that our Nation's political
leadership is meeting the responsibility to decide when and
where our country uses military force.
As I stated previously, in this hearing we will focus
primarily on the two current Authorizations for the Use of
Military Force. Unfortunately, the use of lethal force against
ISIS, al-Qaeda, and other terrorist groups will remain
necessary for the foreseeable future to prevent attacks against
Americans and our allies.
The President, just like President Obama, believes he has
the legal authority he needs under the 2001 AUMF to fight ISIS,
al-Qaeda, and other terrorist groups, and I agree. I agreed
with the Obama administration, and I agree with this
administration that they currently have that authority.
It is clear that Congress is united in the strong support
of the fight against al-Qaeda, the Taliban, ISIS, and other
terrorist groups, and I believe Congress as a whole would agree
that the President should continue to act against these
threats. Congress has regularly notified--been notified of
troop deployments around the world, including the build-up in
Niger, and has responded consistently by funding the Department
of Defense and its operations against ISIS and terrorists
around the world. At the same time, I also believe we should
update the AUMF to reflect the current conflict and reassert
Congress' constitutional role, but we cannot risk undermining
the legal foundation for this critical fight.
We must also be mindful that moving an AUMF without
significant bipartisan support could send the wrong message to
our allies and our adversaries that we are not united and
committed to victory. So far, Congress has been unable to
bridge the gap between those who see a new AUMF as primarily an
opportunity to limit the President and those who believe
constraining the Commander-in-Chief in wartime is unwise. And
unfortunately, the inability to reconcile this divide without
threatening the existing authorization has allowed the status
quo to prevail.
This committee has always recognized that we have a special
responsibility to try to speak with one voice on foreign
policy. We have a great tradition of working together in a
bipartisan way to advance the national interests. It is my hope
that we will be able to do the same on this issue. I thank both
of our distinguished witnesses and the members of this
committee for the seriousness with which they approach the
topic before us today. And I hope that together we can have a
productive discussion about a way forward.
Our distinguished ranking member, Senator Cardin.
STATEMENT OF HON. BENJAMIN L. CARDIN,
U.S. SENATOR FROM MARYLAND
Senator Cardin. Well, thank you, Mr. Chairman. I join you
in welcoming our two witnesses, and join you in our strong
desire for this committee to operate in a nonpartisan way for
the betterment of our national security, and I thank you for
conducting this hearing. This is one of the most important
topics the United States Senate and this committee could ever
consider: under what circumstances and legal authority should
the United States send men and women into war.
Mr. Chairman, I am pleased that you are reasserting this
committee's prerogatives on this issue. I hope that soon we
will also be considering the repeal of the existing
overextended Authorizations for the Use of Military Force from
9/11 and the Iraq War, and a new AUMF tailored to the current
terrorist threats.
America faces unprecedented crises around the world, from
ISIS in multiple countries, and al-Qaeda affiliates continuing
to plot attacks against the United States, to a worsening
nuclear crisis with North Korea, and a newly-manufactured
crisis with Iran. I am deeply concerned about President Trump's
inclination to go to war rather than find diplomatic solutions
to these crises.
It seems we have U.S. troops deployed almost everywhere in
the world. In addition to significant deployments in Iraq,
Afghanistan, and Syria, and major deployments in South Korea,
Japan, and Europe, U.S. forces are and have been engaged in
counterterrorism operations in Yemen, Somalia, Ethiopia, Libya,
and Chad, with extensive advice, train, and capacity-building
efforts in many more.
Two weeks ago, we learned that four service members were
killed in Niger in circumstances that are still unclear, their
mission and the mission of what many may be as many as 800 U.S.
troops in Niger. What is also unclear, the loss of these four
courageous soldiers--Sergeant La David Johnson, Staff Sergeant
Dustin M. Wright, Staff Sergeant Bryan C. Black, and Staff
Sergeant Jeremy W. Johnson--shows the danger faced by men and
women who are deployed around the world, whether they are
deployed with the expectation of combat or not.
Our hearts are with the families of these soldiers. They
served their country courageously, and their families deserve
the respect and appreciation that all men and women should
receive after losing a loved one.
During this hearing, I am going to be asking the witnesses
some specific questions about the Niger incident, the mission
these soldiers were performing, and the legal authorities for
their deployment. That is our responsibility, this committee's
responsibility. If our witnesses are unable to answer these in
open hearings, then I am going to ask that you return to
provide this committee a classified hearing. I think that we
and the American people are now asking if the United States is
fighting and dying in Niger, where else are U.S. forces put in
harm's way.
Some information has been provided to the Congress on this
issue, including the June 27 notice to Congress that the
chairman referred to. But there has been inadequate explanation
of what activities are actually being done and under what legal
authority. That is this committee's responsibility to deal with
the authorization. Protecting the American people from
terrorism extending from threats around the world is certainly
important. But I think there needs to be more public discussion
and light on these activities because I do not think the
American people want the United States conducting a global
endless shadow war under the radar, covert, and beyond
scrutiny.
There have been developments since this committee's last
conversation on this topic with the Secretaries in August.
First, ISIS control of contiguous territories in Iraq and Syria
have been broken with hundreds of ISIS fighters killed and
hundreds more surrendering. Second, the crisis with North Korea
has gotten worse with North Korea testing both the ICBM with
the ability to reach the United States and a thermonuclear
device amid a bitter war of words and threats between President
Trump and Kim Jong-un. Third, President Trump has even
threatened the use of military options in response to the
crisis in Venezuela.
And finally, I am aware that we cannot discuss all the
aspects of the use of the Authorization for Military Force in
this meeting. The Foreign Relations Committee has jurisdiction
over the AUMF and security assistance in the Senate, and an
obligation to provide oversight as to how they can be used.
Secretary Mattis and Secretary Tillerson, I will be asking you
to commit to come up shortly to this committee and brief us in
a classified setting on the use of the 2001 AUMF, including for
counterterrorism purposes.
As I said at our hearing in June, the 9/11 and Iraq AUMF
have now become mere authorities of convenience for presidents
to conduct military activities anywhere in the world. They
should not be used as the legal justification for the
administration's military activities around the world. I am not
convinced that the evolving threat of ISIL to the United States
and to our friends and allies necessitates committing more of
our brave men and women to ground combat operations, and
certainly not under the rubric of the 9/11 AUMF against al-
Qaeda for their attacks in Washington and New York.
I am going to repeat one more time for the record what that
says. The 2001 AUMF said the President is ``authorized to use
all necessary and appropriate force against those nations,
organizations, or persons he determines planned, authorized,
committed, or aided the terrorist attacks that occurred on
September 11th, 2011, or harbored such organizations or
persons, in order to prevent any future acts of international
terrorism against the United States by such nations,
organizations, and purposes.'' As one who voted for that AUMF
when I was in Congress in 2001, I never intended, and I think
all of us never intended, it would still be used today to
justify the use of military force against ISIS.
Just one last point, if I might, Mr. Chairman, and that is
I think it is very clear that under this authorization, there
is no authorization for the use of military force against North
Korea, unless there is an--absent an imminent attack upon the
United States or upon forces or allies in this region. And I
would be interested in hearing the Secretaries' belief as to
what authorizations exist today for military operations against
North Korea.
Finally, it is important for Congress to better exercise
its oversight over the use of force now. The United States has
relied for too long on military force as the first response to
the problems of terrorism, insurgency, and instability abroad.
In this administration, one wonders--one wonders whether it has
become the first and only response. It has proposed a dramatic
increase in the defense budget, while the foreign affairs'
budget has been slashed by 30 percent. Very soon, practically
the only tools left in the U.S. foreign toolbox will be the
massive hammer applied everywhere for lack of better options.
We need to both authorize and to set limits on the use of that
hammer. In so doing, perhaps the administration will rediscover
the necessity and the value of diplomacy, development, and
support for human rights as the means to build a safer world
for everyone, especially the United States.
I know that our two witnesses share the commitment to our
national security and the importance of diplomacy and the use
of military, and I look forward to their testimony.
The Chairman. Thank you, Senator Cardin. We thank both of
you for being here today. You have tremendous respect by almost
every member of this committee. We support your efforts around
the world. And if you could limit your comments to about 5
minutes or so, you are going to have a lot of questions I know.
Any written materials that you would like to have entered into
the record will be done without objection.
And I guess we will start with you, Secretary Tillerson.
Again, we thank you for your extraordinary efforts on behalf of
our country.
STATEMENT OF HON. REX TILLERSON, SECRETARY OF STATE, U.S.
DEPARTMENT OF STATE, WASHINGTON, D.C.
Secretary Tillerson. Thank you, Mr. Chairman. Chairman
Corker, Ranking Member Cardin, and distinguished members, I
appreciate the opportunity to speak to you today. I know the
Senate's desire to understand the United States' legal basis
for military action is grounded in your constitutional role
related to foreign policy and national security matters. I
understand your sense of obligation to the American people well
in this regard.
In the 2001 Authorization for the Use of Force, or AUMF,
Congress authorized the President to ``to use all necessary and
appropriate force against those nations, organizations, or
persons he determines planned, authorized, committed, or aided
the terrorist attacks that occurred on September 11th, 2001, or
harbored such organizations or persons.'' Congress granted the
President this statutory authority ``in order to prevent any
future acts of international terrorism against the United
States by such nations, organizations, or persons.''
The 2001 AUMF provides statutory authority for ongoing U.S.
military operations against al-Qaeda, the Taliban, and
associated forces, including against the Islamic State in Iraq
and Syria, or ISIS. The administration relies on the 2001 AUMF
as a domestic legal authority for our own military actions
against these entities, as well as the military actions we take
in conjunction with our partners in the coalition to defeat
ISIS. The 2001 AUMF provides a domestic legal basis for our
detention operations at Guantanamo Bay where the United States
currently detains members of al-Qaeda, the Taliban, and
associated forces.
The 2001 AUMF also authorizes the use of necessary and
appropriate force to defend U.S., coalition, and partner forces
engaged in the campaign to defeat ISIS in Iraq and Syria. In
Syria, the efforts of the U.S.-led coalition are aimed at the
defeat of ISIS. The United States does not seek to fight the
Syrian government or pro-Syrian government forces. However, the
United States will not hesitate to use necessary and
proportionate force to defend U.S., coalition, or partner
forces engaged in the campaign against ISIS. The President's
authority to use force against ISIS is further reinforced by
the Authorization for Use of Force against Iraq, or, in more
plain terms, the 2002 AUMF.
In addition to authorities granted to the President by
statute, the President has the power under Article II of the
Constitution to use military force in certain circumstances to
advance important U.S. national interests, including to defend
the United States against terrorist attacks. As an example,
President Reagan relied on his authority as Commander-in-Chief
in 1986 when he ordered airstrikes against terrorist facilities
and military installations in Libya following a terrorist
attack by Libya in West Berlin, which killed and wounded both
civilians and U.S. military personnel.
The United States has the legal authority to prosecute
campaigns against the Taliban, al-Qaeda, and associated forces,
including ISIS, and is not currently seeking any new or
additional congressional authorization for the use of force.
The 2001 AUMF remains a cornerstone for ongoing U.S. military
operations and continues to provide legal authority relied upon
to defeat this threat. However, should Congress decide to write
a new AUMF legislation, I submit to you several recommendations
that the administration would consider necessary to a new AUMF.
First, a new AUMF authorities must be in place prior to or
simultaneous with the repeal of old ones. Failure to do so
could cause operational paralysis and confusion in our military
operations. Diplomatically speaking, it could cause our allies
in the global coalition to question our commitment to defeating
ISIS. And a potential repeal of the 2001 AUMF without an
immediate and appropriate replacement could raise questions
about the domestic legal basis for the United States' full
range of military activities against the Taliban, al-Qaeda, and
associated forces, including against ISIS, as well as our
detention operations at Guantanamo Bay.
Second, any new authorization should not be time
constrained. Legislation which would arbitrarily terminate the
authorization to use force would be inconsistent with a
conditions-based approach and could unintentionally embolden
our enemies with the goal of outlasting us. Any oversight
mechanism in a new AUMF also would have to allow the United
States the freedom to quickly move against our enemies without
being constrained by a feedback loop.
Third, a new AUMF must not be geographically restricted. As
is the case under the AUMF, the administration would need to
retain the statutory authority to use military force against an
enemy that does not respect or limit itself based on geographic
boundaries. As ISIS' fraudulent caliphate in Iraq and Syria has
crumbled, it has tried to gain footholds in new locations. As
was discussed with the Senate during a closed defeat ISIS
briefing in July, the United States has a limited military
presence in the Lake Chad Basin to support partners, including
France, in their counterterrorism operations in the region.
This information is also being conveyed to you in multiple
periodic reports submitted to Congress consistent with the War
Power Resolution.
The collapse of ISIS' so-called caliphate in Iraq and Syria
means it will attempt to burrow into new countries and find new
safe havens. Our legal authorities for heading off a
transnational threat like ISIS cannot be constrained by
geographic boundaries. Otherwise, ISIS may reestablish itself
and gain strength in vulnerable spaces.
The United States must retain the proper legal authorities
to ensure that nothing restricts or delays our ability to
respond effectively and rapidly to terrorist threats to the
United States. Secretary Mattis and I, along with the rest of
the administration, are completely aligned on this issue. We
fully recognize the need for transparency with you as we
respond to what will be a dynamic regional and global issue. We
will continue to regularly update Congress and to make sure you
and the American people understand our foreign policy goals,
military operations, and national security objectives.
I thank the committee for supporting our efforts and look
forward to your questions.
[Secretary Tillerson's prepared statement follows:]
Prepared Statement of Secretary of State Rex Tillerson
Chairman Corker, Ranking Member Cardin, and distinguished members,
I appreciate the opportunity to speak to you today. I know the Senate's
desire to understand the United States' legal basis for military action
is grounded in your constitutional role related to foreign policy and
national security matters. I understand your sense of obligation to the
American people well in this regard.
In the 2001 Authorization for Use of Military Force, or AUMF,
Congress authorized the President ``to use all necessary and
appropriate force against those nations, organizations, or persons he
determines planned, authorized, committed, or aided the terrorist
attacks that occurred on September 11, 2001, or harbored such
organizations or persons.'' Congress granted the President this
statutory authority ``in order to prevent any future acts of
international terrorism against the United States by such nations,
organizations or persons.''
The 2001 AUMF provides statutory authority for ongoing U.S.
military operations against al- Qaeda; the Taliban; and associated
forces, including against the Islamic State in Iraq and Syria, or ISIS.
This administration relies on the 2001 AUMF as a domestic legal
authority for our own military actions against these entities, as well
as the military actions we take in conjunction with our partners in the
Global Coalition to Defeat ISIS.
The 2001 AUMF provides a domestic legal basis for our detention
operations at Guantanamo Bay, where the United States currently detains
members of al-Qaeda, the Taliban, and associated forces.
The 2001 AUMF also authorizes the use of necessary and appropriate
force to defend U.S., Coalition, and partner forces engaged in the
campaign to defeat ISIS in Iraq and Syria. In Syria, the efforts of the
U.S.-led Coalition are aimed at the defeat of ISIS; the United States
does not seek to fight the Syrian Government or pro-Syrian-Government
forces. However, the United States will not hesitate to use necessary
and proportionate force to defend U.S., Coalition, or partner forces
engaged in the campaign against ISIS.
The President's authority to use force against ISIS is further
reinforced by the Authorization for Use of Military Force Against Iraq,
or, in more plain terms, the ``2002 AUMF.''
In addition to authorities granted to the President by statute, the
President has the power under Article II of the Constitution to use
military force in certain circumstances to advance important U.S.
national interests, including to defend the United States against
terrorist attacks. As an example, President Reagan relied on his
authority as Commander in Chief in 1986 when he ordered airstrikes
against terrorist facilities and military installations in Libya
following a terrorist attack by Libya in West Berlin which killed and
wounded both civilians and U.S. military personnel.
The United States has the legal authority to prosecute campaigns
against the Taliban, al-Qaeda, and associated forces, including ISIS,
and is not currently seeking any new or additional congressional
authorization for the use of force. The 2001 AUMF remains a cornerstone
for ongoing U.S. military operations and continues to provide legal
authority relied upon to defeat this threat.
However, should Congress decide to write new AUMF legislation, I
submit to you today several recommendations that the administration
would consider necessary to a new AUMF:
First, new AUMF authorities must be in place prior to or
simultaneous with the repeal of old ones. Failure to do so could cause
operational paralysis and confusion in our military operations.
Diplomatically speaking, it could cause our allies in the Global
Coalition to question our commitment to defeating ISIS. And potential
repeal of the 2001 AUMF without an immediate and appropriate
replacement could raise questions about the domestic legal basis for
the United States' full range of military activities against the
Taliban, al-Qaeda, and associated forces, including against ISIS, as
well as our detention operations at Guantanamo Bay.
Second, any new authorization should not be time-constrained.
Legislation which would arbitrarily terminate the authorization to use
force would be inconsistent with a conditions-based approach, and could
unintentionally embolden our enemies with the goal of outlasting us.
Any oversight mechanism in a new AUMF also would have to allow the
United States the freedom to quickly move against our enemies without
being constrained by a feedback loop.
Third, a new AUMF must not be geographically restricted. As is the
case under the current AUMF, the administration would need to retain
the statutory authority to use military force against an enemy that
does not respect or limit itself based on geographic boundaries. As
ISIS's fraudulent caliphate in Iraq and Syria has crumbled, it has
tried to gain footholds in new locations. As was discussed with the
Senate during a closed defeat-ISIS briefing in July, the United States
has a limited military presence in the Lake Chad Basin to support
partners, including France, in their counterterrorism operations in the
region. This information has also been conveyed to you in multiple
periodic reports submitted to Congress consistent with the War Powers
Resolution. The collapse of ISIS's so-called caliphate in Iraq and
Syria means it will attempt to burrow into new countries and find safe
havens. Our legal authorities for heading off a transnational threat
like ISIS cannot be constrained by geographic boundaries. Otherwise,
ISIS may re-establish itself and gain strength in vulnerable spaces.
The United States must retain the proper legal authorities to
ensure that nothing restricts or delays our ability to respond
effectively and rapidly to terrorist threats to the United States.
Secretary Mattis and I, along with the rest of the administration, are
completely aligned on this issue. We fully recognize the need for
transparency with you as we respond to what will be a dynamic regional
and potentially global issue. We will continue to regularly update
Congress to make sure you and the American people understand our
foreign policy goals, military operations, and national security
objectives.
I thank the committee for supporting our efforts, and look forward
to your questions.
The Chairman. Thank you. Secretary Mattis, we thank you
also for being here and your extraordinary service not only as
Secretary, but through many, many years in our military. We
especially appreciate the fact that the two of you work
together constantly to deal with issues in a unified voice, and
we very much appreciate that.
With that, if you would begin.
STATEMENT OF HON. JAMES MATTIS, SECRETARY OF DEFENSE, U.S.
DEPARTMENT OF DEFENSE, WASHINGTON, D.C.
Secretary Mattis. Thank you. Chairman Corker, Ranking
Member Cardin, members of the committee, it is appropriate we
appear before you today to explain what we are doing from DOD's
perspective in our counterterrorism campaign and why.
This has been a long 16-year global conflict characterized
by a very different form of warfare, specifically terrorism,
fueled by extremism, aimed at innocents around the globe.
Traditional campaigns to protect our people must adapt to the
reality of today's nontraditional transnational character of
this fight. The 2001 and 2002 Authorizations to Use of Military
Force, or AUMF, remain a sound basis for ongoing U.S. military
operations against a mutating threat.
In the aftermath of the deadly 9/11 attack and to prevent
future acts of international terrorism against the United
States, Congress passed the 2001 AUMF, finding the President
has, and I quote, ``authority under the Constitution to take
action to deter and prevent acts of international terrorism
against the United States.'' The 2002 AUMF provides the
President with authority to, and I quote again, ``defend the
national security of the United States against the continuing
threat posed by Iraq.'' Previous administrations have cited
these statutory authorities to address the threat posed by
terrorist groups in Iraq and Syria.
As demonstrated by presidents from Washington to Lincoln,
Wilson, FDR, and their successors, it lies firmly within any
president's constitutional authority and responsibility as the
elected Commander-in-Chief to designate who presents a threat
to our country. To date, this Article II authority, reinforced
by the 2001 and 2002 AUMFs, has been used to take action
against al-Qaeda, the Taliban, ISIS, and associated forces.
Following the December 2011 pullout of our forces and--from
Iraq and the outbreak of civil war in Syria, al-Qaeda in Iraq
regained strength and rebranded itself as ISIS. In 2014 under
its new name, ISIS unleashed mayhem in the heart of the Middle
East, building its self-described caliphate and attracting the
allegiance of terror groups from the Sahel to Southeast Asia.
Groups would plan, inspire, and conduct external attacks around
the globe, attacks that include San Bernardino, Paris, Orlando,
London, and the Philippines to name only a few.
Though a statement of continued congressional support would
be welcome, a new AUMF is not legally required to address the
continuing threat posed by al-Qaeda, the Taliban, and ISIS.
Article II of our Constitution, the 2001 and 2002 AUMFs provide
sufficient legal authority for us to engage and defeat the
current threat, which we are doing by working by, with, and
through our allies and partners. That said, any new
congressional expression of unity, whether or not an AUMF,
would present a strong statement to the world of America's
determination, demonstrating, as Senator Kaine has stated, ``an
important message of resolve to the American public and our
troops that we stand behind them in their mission.''
With that for background, I would like to note that to
successfully prosecute the counterterrorism campaign, any
debate on a new or revised AUMF needs to incorporate the
following factors.
First, the 2001 and 2001 AUMFs should not be repealed.
After numerous court cases and debates, there appears to now be
a general consensus by all three branches of government that
these two AUMFs provide sufficient authority to prosecute
operations against al-Qaeda, the Taliban, and, we believe,
ISIS.
Repealing the 2001 and 2002 AUMFs would only cause
unnecessary policy and legal uncertainty, which could lead to
additional litigation and public doubt. The uncertainty
accompanying that situation could only signal to our enemies
and our friends that we are backing away from this fight. It
would stall our operations, immediately reduce allied
commitments and support, and create significant opportunities
for our enemies to seize the initiative. Additionally,
repealing the AUMFs without new authority would deprive us of
the ability to detain dangerous enemy combatants who could then
be released to fight again.
Second, any new AUMF must not be time restricted. For
example, President Trump's South Asia strategy is conditions-
based, not time-based, because war is fundamentally
unpredictable. We cannot put a firm timeline on conflict
against an adaptive enemy who would hope that we have not the
will to fight as long as necessary. Instead, we must recognize
that we are in an era of frequent skirmishing, and we are more
likely to end this fight sooner if we do not tell our adversary
the day we intend to stop fighting. A conditions-based AUMF
would not lessen Congress' authority. The power of the purse
remains firmly vested in your hand should the executive branch
not present a persuasive case for continuing the campaign.
Lastly, any new AUMF must not be geographically
constrained. As has been stated, these are not traditional
threats. This is a fight against a transnational enemy, one
that does not respect international borders, and does not place
geographic limits on their areas of operations. So necessarily,
to defend our country, we must be prepared to swiftly engage
this global enemy in conjunction with our allies and partners.
Regardless of the adaptations we must make for the common
defense, I recognize that it is incumbent on the Department of
Defense to keep Congress fully informed to fulfill its
constitutional role, and I will continue to do so. Accordingly,
as our troops on the battlefield carry out the last 300 meters
of American foreign policy to protect our way of life, I ask
Congress for your continued support and commitment to ensure we
retain the necessary authorities to take our own side in this
fight.
Thank you.
The Chairman. Thank you very much. I am going to reserve my
time for interjections and defer to our ranking member, and
then move down the line. For those of you who may have
stepped--may have stepped in late, I know giving guidance to
senators is a useless effort--[Laughter.]
Senator Risch. Very true.
The Chairman--[continuing]. But we are going to have a
whole series of hearings. This one hopefully is mostly focused
on the 2001/2002 AUMFs, but we will have a series of hearings
looking at other war-making powers, whether it is North Korea,
nuclear issues. We have had members on the committee and off
ask about these issues. So, just know that, but I know you are
going to ask whatever you wish.
With that, Senator Cardin.
Senator Cardin. Thank you, Mr. Chairman. First, I want to
welcome Senator King to our committee. It is not the first time
he has attended our hearings, and it is nice to have you here.
I would ask consent that the statement from Human Rights
First be made part of our record.
The Chairman. Without objection.
Senator Cardin. Thank you.
[The information referred to is located at the end of this
hearing transcript on pages 55-58.]
Senator Cardin. Secretary Mattis and Secretary Tillerson, I
think we all agree that we are not anxious to repeal the 2001
authorization without a new authorization being in force. That
has certainly been the game plan. But I will point out that
there are significant differences here about whether the 2001
authorization covers the military operation--counterterrorism
operations against ISIS. Many of us believe that is not
included in the 2001, but we do agree that Congress needs to
make sure that there is authorization to pursue our
counterterrorism efforts.
As I indicated in my opening statement, operational
decisions on the use of AUMF for counterterrorism, I understand
would not appropriate in an open setting. So, my request, and I
would ask that you respond to it, that you would be willing to
return in a closed session in order that the committee of
jurisdiction on the AUMF has a better understanding of how the
operational decisions are being made?
Secretary Tillerson. Certainly, Senator.
Senator Cardin. Thank you.
Secretary Mattis. Absolutely, sir.
Senator Cardin. I appreciate that. I understand the
chairman's admonition about North Korea, but I just really want
to put on the record, would you agree that there is no
congressional authorization for the use of military force
against North Korea? I understand the President's authorities
under Article II. If there is an imminent threat against the
United States, he has certain powers. But as far as
congressional authorization, there is no authorization. Is that
correct?
Secretary Tillerson. That is my understanding, yes.
Secretary Mattis. I believe the President has Article II,
you know, authority only.
Senator Cardin. Thank you. I want to get to what happened
in Niger and sort of understand where we are because there is
also limitations on the introduction of troops under the War
Powers Act limiting it to 60 days, and as I understand it, our
troops in Northern Africa have been there much longer than 60
days. Can you just explain very briefly what our mission was in
Niger when the tragedy occurred, and under what legal authority
those troops were there?
Secretary Mattis. I can, Senator. The troops are there are
under Title 10 in a train and advise role. The letter from the
President, from President Obama in 2013 to the president pro
tem of the Senate and speaker of the House talks to the total
number of U.S. military deployed there in 2013 was a hundred in
furtherance of U.S. national security interests is President
Obama's report to you. That continues to be the case at this
time.
Senator Cardin. But the specific mission that they were
participating in, as I understand it, went beyond that. Am I
wrong on that?
Secretary Mattis. The mission of those troops on that
patrol was a--was a combined patrol, which means they were with
Niger troops, and they were on a patrol where they were
teaching them how you do what is called key leader engagement.
I would have to wait until I get the full investigation in to
give you a more complete answer. But they are there with the
Niger troops to train and advise them, consistent with the
original intent they were sent there under the previous
administration, continues to be the intent today.
Senator Cardin. So, this is not 2001 authorization.
Secretary Mattis. No, sir, this is under--this is under the
Title 10, and requires us to report to you under that
authority.
Senator Cardin. I understand. Thank you for that answer. I
want to know how far we would go in pursuing military options
in that region of the world. Boko Haram is a horrible group
doing terrible things. Do you have the authority under the 2001
to pursue Boko Haram's atrocities?
Secretary Mattis. These troops were there under Title 10.
Senator Cardin. I know.
Secretary Mattis. But as far as Boko Haram goes, they have
pledged allegiance to ISIS or al-Qaeda, and so either way, they
have associated themselves with the very group that that
authorization is targeted on.
Senator Cardin. So, without any further authorization from
Congress, you believe you have authorization if the
determination is made to deploy whatever force is necessary to
go after Boko Haram, including ground troops?
Secretary Mattis. If the President detects that there is a
threat from them against us, our interests, I believe he would
have the authority to designate that group, yes, sir.
Senator Cardin. Yes, I understand the threat, but the
threat is related to the 2001 threat is what you are saying.
That this is a group that is--whose terrorist activities are
endangering----
Secretary Mattis. If it is an associated group, he would,
under that----
Senator Cardin. Well, he could--he could declare that to be
an associated group?
Secretary Mattis. No, he didn't.
Senator Cardin. He could----
Secretary Mattis. Boko Haram declared that they were an
associated group.
Senator Cardin. They did, but the President could authorize
them as an affiliate group, and then use the full force of our
military, including ground troops, without further
restrictions?
Secretary Mattis. Right now, Senator, they are--our troops
are there under Title 10. I do not want to speculate about that
because that is not what they are doing right now. I would have
to go back and study it, but I believe a group that declares
its allegiance to either al-Qaeda or ISIS would then be part of
al-Qaeda or ISIS, yes, sir.
Senator Cardin. Yeah, but my question really is related to
how far he could commit our military to these types of
campaigns. When we were attacked on September the 11th, we
recognized the need for a military response, and we certainly
understood that American troops are going to be called upon to
protect our country. I am not sure that Congress envisioned
that we would have the potential of ground troops in Northern
Africa in combat missions. However, if I understand what you
are saying, unless we modify this AUMF, you would feel that you
have adequate authorization to commit American ground troops in
Northern Africa.
Secretary Mattis. Senator, if the President determines they
are a threat to the United States, and--under the AUMF, say,
they are allied with al-Qaeda or ISIS, yes, sir, I believe so.
Senator Cardin. Thank you.
The Chairman. Thank you. Senator Johnson.
Senator Johnson. Mr. Chairman, let me first start out by
thanking both the Secretaries for their service to the country.
Let me pick up on the point of ground troops.
Secretary Mattis, in your testimony, you talked about a 16-
year global conflict, totally different than anything we have
really witnessed in the past. I remember when we had this
discussion a couple years ago with the advent of ISIS, trying
to rewrite a new authorization for use of military force, there
was an awful lot of discussion about limiting ground troops. No
ground troops. Secretary Tillerson, I think you said in your
testimony, you talked about the caliphate is basically ended,
is it not, or really darn close?
Secretary Tillerson. Well, we have liberated a large amount
of area in Iraq and Syria, but that fight is not over yet.
Senator Johnson. Secretary Mattis, is there any way we
could have done what we have done so far with the caliphate
without ground troops?
Secretary Mattis. I do not believe so, Senator.
Senator Johnson. And yet, 2 years ago we were debating in
this committee replacing the Authorization for Use of Force
with one that would have restricted President Obama's and his
replacement, his successor, his ability to--his or her ability
to use ground troops. That would have been a big mistake, would
it not have?
Secretary Mattis. Senator, generally speaking, when you--
you do not tell the enemy in advance what you are not going to
do. That is not a wise--even if you do not choose to do it,
there is no need to announce that to the enemy and relieve them
of that concern.
Senator Johnson. Yeah, in the 2001 authorization, I
personally do not think the 2001 applies to this situation, I
really do not, when you read it, but by precedent, it does. But
it does not restrict the President's use of force. It says,
``to use all necessary and appropriate force,'' and then it
goes on to describe what those--what those nations, what those
organizations really are.
In a real declaration of war against Japan and Germany,
Congress declared that ``The President is authorized and
directed to employ the entire naval and military force of the
United States and the resources of the government to carry on
the war against,'' in this case, the government of Germany,
``and to bring the conflict to a successful termination, all
the--all the resources of the country are hereby pledged by the
Congress of the United States.''
So, both in the 2001 authorization and the declarations of
war against both Germany and Japan, there were no restrictions.
We pledged all necessary resources of this country to the
defeat of our enemy.
In both your testimony, you laid out three conditions, but
one thing I want to clear up. Secretary Mattis, you said we
should not be--we should not repeal the 2001/2002 later on you
talked about, without a new authorization. You are not--there
is no difference in your testimony, correct?
Secretary Mattis. No, sir.
Senator Johnson. You can repeal them as long as you have
something else in its place.
Secretary Mattis. There are some lawyers who will say it is
good to hold on to what you have even if you pass a new one
that perhaps changes it in some way.
Senator Johnson. So, is there a slight difference between
your two testimonies then? You would prefer keeping the 2001/
2002 AUMF in place.
Secretary Mattis. I would have to see what came out next,
Senator, but right now I would say yes. We have been through a
lot of difficulty trying to get the three branches of
government aligned on this.
Senator Johnson. Okay. I am not disagreeing with you in any
way, shape, or form. You both said that neither--if there is a
new AUMF, it should not be time restricted. You both said it
should not be geographically restricted. I was waiting for the
fourth, but neither one of you said this: there should be no
operational restrictions. Do you believe there should be
operational restrictions as we contemplated a couple years ago?
No ground troops or something of that type of restriction?
Secretary Tillerson.
Secretary Tillerson. No, I do not think we can restrict
operations given the way this particular enemy morphs, changes
its tactics. As we saw with the emergence of ISIS, we start
with what might be a fairly limited group of terrorists who
then are able to overrun large territories and amass armies,
essentially their own armies of tens of thousands. That
requires a very different use of force than trying to chase and
defeat terrorists that are making their way through the jungles
in smaller numbers.
This is an enemy that changes it names. It moves across
borders. It is a non-state actor. And it has morphed and
changed over this 16 years, which I know is part of why this is
such a vexing issue because it does not fit a declaration of
war. Certainly, it does not fit the criteria that Congress has
used in the past for declarations of war.
Senator Johnson. It is a totally different enemy than we
faced in the past, but this has been a 16-year struggle.
I do not think it is going to be over any time soon.
Secretary Mattis, can you describe what has changed in the
change of the administration that has allowed us to defeat the
caliphate in relatively short order compared to what had been
happening the previous 2 years?
Secretary Mattis. Senator, what we did was we changed the
tactics. We accelerated the number of partnered units that had
American forces with them, not to do the fighting, but to call
in air support. The change in tactics was one that where we
could, we would surround the enemy first so they could not fall
back and reinforce the next site, thus making it harder. And
you saw the surround tactics used in Mosul, in Tal Afar, in
Tatkal, in Raqqa.
And those are the big changes, sir, as we accelerated the
campaign, but also lessened the chance that foreign fighters
could escape to return home or to reinforce the next position.
Senator Johnson. Would you say it is true that we have
allowed the commanders on the ground to make the decisions to
defeat the enemy rather than direct them here from Washington,
D.C.?
Secretary Mattis. I have delegated authority to the
appropriate levels, yes, sir.
Senator Johnson. Both of you seemed to indicate that
continued congressional support would be welcome if it is a
statement of unity. But it has to be an authorization that does
not restrict the military's ability to defeat our enemies. Is
that correct?
Secretary Tillerson. That is correct.
Secretary Mattis. I agree, Senator. Assuming strong and
very robust feedback loops to the Congress to keep you fully
informed.
Senator Johnson. I have no further questions. Again, thank
you for your service.
The Chairman. Thank you. Senator Udall.
Senator Udall. Thank you, Mr. Chairman, and thank you both
for your service, and thank you for being here today.
Secretary Mattis, the existence of multiple local militia
forces in Iraq remains a major problem as ISIL is driven out.
Kurdish aspirations of nationhood may be just the tip of the
iceberg, and I am concerned we are ending up on multiple sides
of a complicated conflict in a post-ISIL, Iraq, and Syria. How
many different groups are the Department of Defense advising
and assisting in Iraq?
Secretary Mattis. Sir, we advise and assist the Iraqi
Security Forces only in Iraq. And I would just mention that
Secretary Tillerson just returned from there, and this issue
was brought up with the prime minister. Do you wish to say
anything, Mr. Secretary?
Secretary Tillerson. Yes, the prime minister is asserting
authority himself over other various militias, including
Popular Mobilization Forces, the PMF, which are by and large
Iraqi forces. They are Iraqi citizens who are fighting under
militia arrangements, including the Peshmerga forces of
Kurdistan during the war to defeat ISIS, to liberate Mosul, to
liberate large parts of Ninawa and other provinces. These
forces put themselves under the command of Prime Minister
Abadi.
So, there are multiple forces, but I think as the Secretary
indicated, our support is through the Iraqi forces working with
Prime Minister Abadi and under--and his authorities.
Senator Udall. I am glad you brought that up because,
Secretary Tillerson, it was reported that the Iraqi prime
minister was pretty blunt in his response about Shia Iranian-
backed militias in Iraq, stating that they are already home and
they are not going anywhere, and that--and that maybe U.S.
forces should leave. If U.S. forces are told to leave, will we
depart Iraq, or will we stay uninvited as our forces are doing
in Syria, and under what legal authority will they remain?
Secretary Tillerson. Senator, the prime minister--I never
heard the prime minister say U.S. forces should leave. What he
did clarify is that, as I said, many of the PMF forces are
Iraqi Shia forces, so they are Iraqi citizens. My comment was
regarding foreign fighters, foreign fighters that may have come
to Iraq. We know there are foreign fighters in Syria. And my
comments were that any foreign fighters, particularly those
from Iran, needed to leave Iraq and go home. Certainly, PMF
Iraqi citizens, this is their home. They will remain. But I
think the prime minister has also made it clear as to his
expectations of how these forces will organize themselves, or
put their arms down and just rejoin their villages as citizens.
Senator Udall. But we have reached--we have reached this
new phase, and I--and I think this is a real possibility that I
am asking you about. If U.S. forces are told to leave, will we
depart Iraq, or will we stay uninvited as our forces are doing
in Syria, and under what legal authority?
Secretary Tillerson. We will remain in Iraq until ISIS is
defeated, and we are confident that ISIS has been defeated.
Senator Udall. Under what legal authority?
Secretary Tillerson. Under the 2001 and 2002 AUMFs. Now
having said that, we are there also at the invitation of the
Iraqi government, and Prime Minister Abadi has given to me no
indication that he is in any particular hurry to have us
depart.
Senator Udall. Secretary Mattis and Secretary Tillerson, do
you agree with the assertion that this fragmentation of
security forces will pose difficulties to the Iraqi Government
maintaining order in areas that the U.S. Government recently
regained control of? What is your advice to ensure that these
areas do not see resumed sectarian violence now that the fight
with ISIL is nearly over, and does this necessitate U.S. troops
on the ground?
Secretary Tillerson. Senator, as areas have been liberated,
we are working with the coalition partners and with the United
Nations and other non-governmental organizations to create
stability around liberated cities, in particular, as well as
villages. And that means having the military forces, the
armies, pull back out of the villages, allow the--our coalition
to enter those villages, undertake de-mining of the villages so
that it is safe for people to return, and then begin the
process of training local basically police forces. And we have
a number of coalition partners that have undertaken that
activity. So, as we are liberating areas, we are preparing
security forces, local security forces, to transplant the
military forces.
Prime Minister Abadi made this direct observation to me. He
said, I have to get my armies out of the cities. They are not--
they are not policemen. They are not trained to be policemen,
and they are not equipped to be policemen, and I have to
replace them with trained security forces to carry out police
activities and provide security for the civilians as they
return. There is a lot of work to do to stabilize these areas,
but that is how we will lock in the military gains that have
been achieved with the liberation.
Senator Udall. Secretary Mattis, do you have a comment on
that issue?
Secretary Mattis. It is the Iraqi forces, you know,
operating under Prime Minister Abadi that have--that have
liberated these areas. It is not any other armed groups. Now,
there are PMF forces that are engaged with them, but he has
insisted that they fall under the authority of his field
commanders. That is being imperfectly done. I would not say it
is happening in all cases, but you have seen the successes
enjoyed so far. And we are moving now against al-Qaeda with
Iraqi forces to restore the border against Syria. So, you see
it unfolding in that direction. The next step is exactly what
the Secretary of State has laid out.
Senator Udall. Thank you both. Thank you, Mr. Chairman.
The Chairman. Thank you. I think, Senator Flake, you are
next. If it is okay, maybe we will go with about 3 minutes of
your questions, and then come back and you can resume if that
is okay.
Senator Flake. It is fine.
The Chairman. Okay.
Senator Flake. Thank you, Mr. Chairman. Thank you for being
here.
I think that here, you know, in the Senate we aspire to be
more than just one cog on a feedback loop. This is the body
with Article I authority to declare war and to authorize the
use of military force. I understand the importance in looking
at your three items that should not put a new AUMF--or should
not repeal the old one until a new one is in its place: no time
constraints--I will get to that in a second--not geographically
limited. And the AUMF that Senator Kaine and I have introduced,
the bipartisan AUMF, I think meets the conditions of the--of
one and three.
But number two with regard to time constraints, anybody
want to hazard a guess of how many in this body right here on
the Senate Foreign Relations Committee were in the Senate when
the 2011 AUMF was passed? Not one. Not one member of this panel
was in the Senate when the 2001 AUMF was passed, or the 2002
for that matter. Seven of us were in the House during that time
and voted on it, but not one has had the opportunity to weigh
in on it 16 years later.
I would argue that the concern about giving our adversaries
notice that we have to vote on something may be an issue, but
it is overwhelmed in a big way by not having Congress buy in
and not having us have skin in the game. It simply allows us to
criticize the administration--Republican or Democrat--if we do
not like what they are doing because we have not weighed in. We
have not said our peace. We have not voted on this. So, I would
simply say that any concern about having to come back--we have
a 5-year sunset on ours. Five-years. That is pretty long.
But Congress needs to weigh in. We have to make sure that
our adversaries, and our allies, and, most importantly, our
troops know that we speak with one voice. And so, I hope that
as we go along, we can--we can--we can talk about the relative
importance of signaling that we might leave or might not
finish, and not having Congress weigh in at all, to go for 16
years before we actually weigh in or have any skin in the game.
We, as I said, ought to aspire to be more than just part of
a feedback loop. Article I authority is more than that. So,
with that I will pull back.
The Chairman. Thank you.
Bertie, if you will keep 4 minutes and 15 seconds on
Senator Flake's time. If we could all sprint over and sprint
back, you will start again as soon as we will get back. And we
will recess for about 14 minutes I hope. Thank you.
You are welcome to come into the back or do whatever.
[Break.]
The Chairman. The Senate Foreign Relations Committee is now
coming back out of recess. As with the Senate, we had one
member kind of lollygagging around, and it took a little longer
than we thought. It is the story of the United States Senate,
but we are glad to be back in session.
Senator Flake, if you will, continue your work.
Senator Flake. Thank you, Mr. Chairman. We talked before
the break about reasons we need an AUMF, and I mentioned how
few people were actually here. Nobody on this panel voted in
the Senate on the AUMF. In the House, fewer than a hundred
members of the House were there when the 2001 AUMF was passed.
I think total in the Senate, nobody on this panel, but only 23
members of the Senate were here to vote on the AUMF. And so, it
simply helps. We have got to have a situation where the
Congress is more involved here.
I understand what you say that a new AUMF would be
welcomed, but not required. Just for the benefit of everybody
here, no administration would ever concede that you need an
AUMF because the absence of it would suggest that what we have
been doing for 16 years would be illegal, or certain activities
we have undertaken. So, I think we all understand that the
administration will say that no new AUMF or no new authorities
are needed.
But whether or not they are needed to provide a legal
basis, it is certainly needed politically, and we cannot
continue to go on in a situation where, you know, 70 percent of
the House and the Senate has never voted on an AUMF, and has no
reservation at all to criticize whatever administration is in
power and their use of military force because they did not vote
on it. And we cannot continue to go year after year after year
without doing that.
But specifically on a question here, with regard to Niger,
I understand that you say that is Title 10 authority. You
expressed concern about not having authorities that expire so
as not to tip off the enemy that we might leave. Explain Title
10 authority with regard to--now that is part of the NDAA that
we gratefully--it is the one authorization bill that we pass
every year. But what if we were not going to pass that next
year, if we failed in our duty to do it? What would that do?
Secretary Mattis. Well, we would--I believe, Senator, we
would still have Title 10 authority under the U.S. Code, so we
would not--I mean, we would have trouble probably getting
appropriations if we did not have the NDA--the authorization.
But I think that under the U.S. Code, we still exist as a
military, so--I would have to turn to my general counsel, sir,
to give you a better answer.
Senator Flake. You mentioned, Secretary Mattis, in your
remarks that we still in Congress here have the power of the
purse, and that maybe should be sufficient. There was one
member of our body who said when he was briefed on what was
going on in Niger, he said that Congress--we would--``We need
to decide whether or not we want to authorize this operation
through the appropriations process.''
Now, for us authorizers, that ought to be a hit right here
that only the Appropriations Committee in this body has
authority to look at what we are doing and decide whether or
not appropriate authority exists and, through the
appropriations process, give that authority. I would suggest
that this committee ought to stand up and say that is not
enough. That is not enough. Let us pass a new AUMF.
So, I know that--I hope Senator Kaine will go into the AUMF
that we have proffered. It is gaining momentum certainly and
support. And I hope, above all else, that we can come to a
point where we speak with one voice overseas, whether it is use
of diplomacy or use of military force. And under the current
situation with a 16-year-old AUMF, I would suggest that we do
not, and our adversaries, our allies, and our troops need to
know that we do.
Thank you, Mr. Chairman.
The Chairman. Thank you. If I could just for clarification,
when you say ``Title 10,'' you are talking about the Train and
Equip Program?
Secretary Mattis. That is correct, Chairman. Basically, we
have the authority under Title 10 to carry out these kind of
partnering activities, yes, sir.
The Chairman. Throughout the world.
Secretary Mattis. If the President directs it, yes, sir.
The Chairman. Senator Murphy.
Senator Murphy. Thank you very much, Mr. Chairman. Thank
you both for being here. You are both patriots, and thank you
for your service to the country. I want to maybe get back to
this question of exploring the limits of that Title 10
authority, but I wanted to build upon a question preview that
Senator Cardin referenced, and that is on the existing
authorities in North Korea.
The President has talked about our military options should
we choose to use them in North Korea, and I just wanted to make
sure that we understand the range of authority that the
President has today with respect to potential military
operations in the Korean peninsula. Would you both agree that
absent a strike against the United States or the imminent
threat of a strike against the United States, the
administration would need congressional authorization to engage
in military activity against North Korea?
Secretary Tillerson. Well, Senator, I think it would
depend, again, on all circumstances, and it is a fact-based
decision. I think clearly today we are there under Article II
authorities, and Article II is really--you know, if you look at
it historically, it has been grounded in kind of two criteria.
One is to protect United States' persons, property, and
national security interests, and secondly, it has been used for
circumstances that do not rise to the level of a declaration of
war. And I think that is the circumstance we have in the
peninsula today in Korea.
So, it is a question of the--of the threat, the imminent
threat, the nature of the threat as to whether the President
then would exercise his authorities without the need of further
congressional authorization. So, it is--it will be fact-based,
and all those will have to be considered.
Senator Murphy. Secretary Mattis?
Secretary Mattis. Yes, I believe under Article II, he has
the responsibility obviously to protect the country. And if
there was not time, I could imagine him not consulting or
consulting as he is doing something, along the line, for
example, of what we did at Shayrat Airfield here in Syria when
we struck that and the Congress was notified immediately. This
was after the chemical weapons use by the Assad regime. But in
this case of North Korea, it would be a direct, imminent, or
actual attack on the United States that I think Article II
would apply.
Senator Murphy. I think I would agree that if it is an
attack or an imminent attack, and we can all split hairs as to
what the definition of ``imminent'' would be. But let me try to
get to the bottom of that. Would the possession of a weapon, a
nuclear weapon, capable of reaching the United States fill--
fulfill the definition of an ``imminent threat'' to the United
States? Would a possession--the simple possession of a weapon
that is capable of doing great damage to the United States be
sufficient to qualify as an imminent threat?
Secretary Tillerson. Well, again, I am always reluctant to
get into too many hypotheticals because the possession can be
sitting in an underground, not ready to be used condition, or
possession could be sitting upright on a Tel about to be
launched. So, again, I think it would be have to be fact-based
and given consideration as to the circumstances around an
imminent threat.
Senator Murphy. Secretary Mattis?
Secretary Mattis. I fully agree with Secretary Tillerson. I
think this is an area that a number of facts would have to bear
on the problem in order to give you a complete answer, Senator.
Senator Murphy. I thank you both for your answers. I think
the primary fact is whether there is an attack or an imminent
attack. I think other than those two facts, you need to come to
Congress for authorization, but I appreciate your answers.
Secretary Mattis, I wanted to drill down a little bit more
on the Title 10 authority. You certainly have Title 10
authority to conduct training missions abroad. You are using
that authority in Niger today. You have properly notified
Congress. You referenced President Obama's notification. But
how do you answer concerns that our constituents may have when
it looks as if a training mission is something more than
training, that we are actually putting American troops out in
harm's way, partnered with local forces engaged in activity
that imperils U.S. men and women?
To many folks, this did not look like a training mission.
It did look like we were side-by-side with domestic forces, but
we were actually helping them carry out pretty critical mission
components. How do you address concerns that some of our
constituents have that a training mission can very easily morph
into something that looks much more like operational and
offensive capabilities that are unauthorized by Congress?
Secretary Mattis. It is a great question, Senator. When you
look at why did President Obama send troops there, why did
President Trump send troops there, it is because we sensed that
as the physical caliphate is collapsing, the enemy is trying to
move somewhere, and so, those troops are there. Most of them
are providing, frankly, intelligence, surveillance, and
reconnaissance support, intelligence support, refueling
support. There are some doing this train and advise mission.
In this case, we are trying to build up the internal
defenses of another country so they can do this job on their
own. The French have carried the burden for this, have taken
severe casualties at times in this mission. We are supporting
them. But in this case, since April, I believe, and we will get
the specific numbers once the investigation comes in, over 2
dozen patrols in this area with no enemy contact. I think it
was reasonable to think they could go out and continue training
these troops without the idea they were going into direct
combat, but that is not a complete answer. I need to wait until
I get the results of the investigation. --
Senator Murphy. But you referenced the falling apart of the
caliphate at the beginning of that answer, and so that suggests
that this might not be a Title 10 authority mission. This might
be a 2001 AUMF mission. And if that is the case, then--okay,
you are not saying----
Secretary Mattis. I misled you there.
Senator Murphy. Okay.
Secretary Mattis. This is a Title 10 train and advise, and
we are trying to prepare them if, as the caliphate falls apart,
their country comes under attack so they can defend their own
population. You will remember Boko Haram nearby and the 276
girls they kidnapped. It is a real problem up in that region,
and we are trying to get them in a position where they can
defend themselves, and do it in accordance with the law of
armed conflict in a very complex environment. This is tough
training, sir.
Senator Murphy. Thank you, Mr. Chairman.
The Chairman. Thank you very much. Senator Young.
Senator Young. Thank you, Chairman. Secretary Mattis, you
said in the past, you said again here today, that a new AUMF by
this Congress would send a message of resolve to our troops and
to our enemies. I absolutely agree with that. I would like to
get into the law, though, the legal components of this.
Legally, there are at least--one, it seems we would have to
make--concede that there is a principle, there is a logical
argument that the 2001/2002 AUMFs do not apply, or now have a
highly attenuated application to current circumstances. 2001
AUMF was in response to 9/11. It was directly in response to 9/
11, albeit written broadly. 2002 AUMF was directed against the
Saddam Hussain regime. In fact, it was invoked here today, but
the language of that AUMF says ``a threat posed by Iraq.'' And
then in 2014, ISIS leadership--al Baghdadi--actually disavowed
very publicly any association with al-Qaeda.
Secretary Mattis, you indicated that a terrorist group--I
think it was Boko Haram--but a terrorist group was covered by
the 2001 AUMF because they swore allegiance to al-Qaeda. Now,
by that same logic, if ISIS broke with al-Qaeda, why would the
2001 AUMF apply to the fight against ISIS?
Secretary Mattis. Senator, what we have seen is these
groups come apart, go back together. They change their name as
often as a rock and roll band. They are keenly aware that they
have got--they have got certain legal strictures on our side
that they can take advantage of. We call lawfare where they
actually use our laws against us. We have seen it. We read
their mail. We know what they are thinking in many cases.
It is an associated group because if you look at the
photographs we have from intelligence that shows who is leading
in Baghdadi's outfit, there is a remarkable resemblance to
other photographs we have under al-Qaeda in Iraq. So, when the
same group in the same area seems to be spawning from the same
people, a disavowal is something that is of interest, but it is
not necessarily compelling, especially since they seem to have
many of the same tenets to their ideology as the group they
disavow. And I am not sure I would call them ``highly
attenuated'' in that circumstance.
Senator Young. Well, that is my characterization. No, I
respect yours, Mr. Secretary.
Secretary Mattis. Yes, sir.
Senator Young. So, it seems like these arguments could be
made both ways. They swore an allegiance; therefore, they are
covered by the AUMF. And then secondarily, well, you know, that
factor is not all that important in our consideration based on
a range of other factors. It might be helpful to lay out what
multi-factor analysis legally your attorneys are looking at to
help make these decisions.
Secretary Mattis, on January 27, 2015, you testified before
the Senate Armed Services Committee. You said the following:
``We have observed the perplexing lack of detainee policy that
has resulted in the return of released prisoners to the
battlefield. We should not engage in another fight without
resolving this issue up front. Treating hostile forces, in
fact, is hostile.'' When asked about that in the hearing, you
continued: ``I think that when we have--what we have to do is
have a repeatable detainee policy so that when we take them, we
hold them, and there is no confusion about their future, not
among the enemy's mind, certainly not among our own.'' Do you
stand by those statements, sir?
Secretary Mattis. I do, Senator.
Senator Young. Why do you believe it is important up front
to ensure that there is no confusion regarding our Nation's
ability to detain enemy combatants under the law of war until
the end of hostilities?
Secretary Mattis. Senator, when we release people and
eventually we find them back on the battlefield fighting us--
when Rommel's Africa corps was taken prisoner in World War II
in North Africa, we did not let them go because they said,
``well, I was only a tank driver, I was not a gunner,'' and let
them take another shot at us at Normandy. We held them in the
prison camp until the war was over. I think that that is a
rather straightforward proposition that we take our own side in
this.
Senator Young. Thank you, Mr. Secretary. So, if this body
were to pass another AUMF, would you support an effort that
seeks to eliminate any uncertainty whatsoever regarding our
Nation's ability to detain enemy combatants under the law of
war until the end of hostilities?
Secretary Mattis. For those taken overseas, yes, sir. I
just want to make sure you understand I am not talking about
people here in the United States who are taken.
Senator Young. Nor am I, so thank you. Another legal point
going back to the law here, I would argue--you invoked
litigation risks. I would argue that the further away we get as
a country from 2001 or 2002, the more attenuated the
relationship exists between our ongoing fight against
associated forces and that period of time in which our previous
Congress, working with our previous Commander-in-Chief, passed
an AUMF, but the litigation risk is only going to grow. So,
kindly consult with your attorneys and give me their analysis
about why I have it wrong or right, but I think I have it
right.
Secretary Tillerson and Secretary Mattis, both of you over
the course of this hearing have indicated that there are three
essential elements for a new AUMF. And I think you worded them
differently, but I think they are distilled down to no lapse in
authorities, no time constraint, and no geographic restriction.
Is that a correct and fair summary of the elements that need to
be in there?
Secretary Mattis. Yes, sir.
Secretary Tillerson. Yes.
Senator Young. Thank you. Well, I would just note for the
record that the AUMF I introduced on March 2nd--Senate Joint
Resolution 31--meets all of those criteria. So, I think it
certainly satisfies that.
I am going to pivot to a different topic. Secretary Mattis,
you mentioned ISR assets. And in testimony before the Senate
Armed Services Committee on March 9, 2017, General Waldhauser,
who is commander of AFRICOM, stated in his written testimony
that only approximately 20 to 30 percent of Africa Commands'
ISR requirements are met. The general wrote that ``this
shortfall in ISR limits situational understanding, support to
operations, and fails to offer threat indications and
warnings.'' Secretary Mattis, could you please discuss AFRICOM
and DOD's ISR shortfalls and the operational impacts of those
shortfalls, and what we can do to help?
Secretary Mattis. Yes, sir. The ISR assets are insufficient
basically worldwide. I can go to a number of other combatant
commanders from the Pacific, even in the Middle East, CENTCOM,
certainly EUCOM, and they would all say they have shortfalls.
As you know, we've been under continuing resolutions for many
of the last 10 years. We have been under budget reductions, and
eventually real capability is insufficient.
At the same time, I think in this case, General Waldhauser
is a hundred percent correct, but that force, again, was in an
area where a reasonable person looking the last several months
would say contact was not imminent, was not likely to be
imminent. And so, you look at how you prioritize it. There is a
finite amount of ISR assets, and we deal them out--we deal them
out, frankly, like gold coins through the various combatant
commanders.
Senator Young. Thank you both for your service.
The Chairman. Thank you. Thank you very much. Senator
Coons.
Senator Coons. Thank you, Chairman Corker, Ranking Member
Cardin, for this important hearing. And thank you, Secretary
Mattis and Secretary Tillerson, for the service you have
rendered to our country, and for the men and women you lead and
command. I think it is important that we as a committee come
together in a bipartisan way and provide you with an updated
authorization for the very demanding and difficult work that
your men and women are doing around the world.
I think the tragedy in Niger--the loss of four American
soldiers--helped focus on the fact that we have got citizens
and we have got senators who are unclear on exactly where in
the world we are engaged against this morphing, changing enemy
in a new era of skirmishes, as you put it, sir. And in the
opening list, you gave of roughly, I think, 19 countries, I
will tell you it is a striking. A majority of them are on the
continent of Africa in a region that is not that familiar to
many senators and many Americans.
So, I will just assert that I believe it to be in our
national interest to have a renewed, clearer, strengthened
authorization of the very difficult work that you and the folks
you lead are doing around the world. And I take seriously the
risk presented of potentially emboldening our adversaries and
undermining the confidence of our coalition partners if we do
it in a way that is rough-hewn. But at the same time, it just
defies my sense of our role to accept that a 2001 AUMF, where,
as Senator Flake put it, fewer than a third of the currently-
serving Congress voted for it, has become so attenuated, I
think was your phrase, so convoluted that it is hard to trace a
path from 2001 and al-Qaeda in Afghanistan to young American
men and women serving in the Philippines, or in Yemen, or in
Niger.
So, we have to do this, I think, together. And I find it
beyond my ability to get my head around that we must authorize
an unlimited war that has no limits of geography, of time, or
of an oversight mechanism. So, I commend my colleagues who have
put together what I think are strong drafts and that attempt to
tackle this. And I, frankly, think on both sides we are going
to make concessions in order to provide our warfighters and our
diplomats with the authorization that makes it clear what we
intend to do and for how long we intend to do it. I think that
strengthens our country. I think that shows democracy at work,
but it also means we are going to have to take some risks.
Talk to me, if you would, for a moment about how we make
sure that our citizens, that our senators, know where we are
fighting beyond the current system of notification because I
think it is not fully effective. And what do you think is the
appropriate level of public transparency for military
deployments outside of areas of active hostility? Is it
helpful, is it important, and how do we strengthen
accountability to the Senate and the public of where we are
deployed, and what are the limits on that?
Secretary Mattis. Senator, I would just say that in my
Department's case, in Fiscal Year 2016, we submitted 901
reports to the Senate, which, for the number of days you are in
session, is about six a day. It has been added in Fiscal Year
2017 another 175, so we will be submitting seven reports a day.
Under the War Powers Resolution notification that comes in,
Niger has been reported every 6 months under the previous
administration as well as under our current administration.
The most recent in June reported about 645, thanks to the
appropriation by the Congress, to work on airfield. We have
actually got probably 150 more there right now, engineers
working on airfield with the money you provided to make the
airfield that will provide more ISR opportunity for our troops
in that region. So, I think the most important thing is we look
at the reports we are giving you to see if we are just bearing
on the important information inside a mass of reports that pour
into you every day literally, and make sure that maybe tier one
issues that--and this would be--you would decide tier one, that
we are highlighting that information to you to include in any
closed hearing briefings that filled in any gaps you sensed.
Senator Coons. Thank you, Mr. Secretary. Secretary
Tillerson.
Secretary Tillerson. Well, Senator, I think your--what you
have really put your finger on is what is, I think,
concerning--I am hearing concerning this committee and others,
and that is the level of transparency and understanding of
where our forces are deployed, and in what role they are
deployed, and to what levels they are deployed, and what is the
expectation for the likelihood of combat engagement.
But I also think that when I consider the current AUMF, and
I do not want to pretend to know what the intent of Congress
was in 2001. But quite frankly, maybe the intent recognized
that this was a completely different situation than we have
ever faced before. This was not a sovereign state actor that we
can do a war declaration against. War declarations, I think as
Senator Johnson pointed out, do not have timelines. We did not
tell the Japanese we are going to come out and fight for 3 and
a half years, and then we are going home, and we have done
that. We have done that under this AUMF. We announced
withdrawal from Iraq, and we see what happened. ISIL emerged
and created an enormous caliphate.
So, anything that signals our intentions, this enemy takes
advantage of that. We have now learned that lesson multiple
times. So, I do appreciate that--the issue over what
congressional control or oversight there is for this
authorization. On the other hand, you know, Article I gave the
Congress the right to declare war. Article II gave the
Commander-in-Chief the right to conduct the military affairs.
And I think the Founders recognized in writing Article I and
Article II that you cannot fight war by consensus. You cannot
fight war with a collective approach. There has to be one
Commander-in-Chief to fight the war because someone has to take
the hard decisions to win.
And so, the separation is there, I think, in Article I and
Article II. And the reason there is not a declaration of war
here is because, as I indicated earlier, the situation, the
circumstances do not give rise to a declaration of war, which
then puts into motion a number of other authorizations. So, I
think the authority has been properly used by the Congress in
the 2001 AUMF.
Secretary Mattis, I think, would welcome a strong statement
from the Congress. But in many respects, the Congress can
express its will now 16 years later and say this authorization
is still valid, and it is serving the purposes of this war
against this very unique and unusual enemy that we will fight
for we do not know how long, or for where, or for--with what
forces. That is the nature of this fight that we are in.
Senator Coons. Well, Mr. Secretary, I would like to thank
both of you. I will just comment in closing. Having spent time
in West Africa, I am particularly concerned about the ways in
which associated forces morph and change, affiliate and
disassociate, and the way in which who we are fighting
metastasizes, more at their choice, and direction, and timing
than ours, and how it is possible for something like Boko Haram
to split into two, and to become now two enemies, one al-Qaeda-
affiliated, one ISIS-affiliated, but without a significant
amount of direction, or funding, or control from a core enemy.
This is a different kind of fight than we have been in as a
Nation before, and I do think our constituents expect some
sense of strategy, trajectory, timeline, and cost. Yet I am not
blind to what you raise as the very real risks if we undermine
the confidence of our coalition partners and our troops by
failing to deliver a strong consensus AUMF.
I look forward to working on that with you both, and I
thank you, Mr. Chairman and Mr. Ranking.
The Chairman. I will say before turning to Senator Isakson,
with few exceptions--I have been here 11 years--I really have
not heard a member specifically raise questions or criticize
efforts that are underway against ISIS, al-Qaeda, Boko Haram.
So, I know everybody is concerned. I mean, I know that when
this began, no one expected in 2001 that we would be continuing
as we are today. I understand that, and I would like for us to
strive for a balance.
But in fairness, and we may hear it--I know there is one
member here that may express that in just a moment. But I
really have not heard a member go down to the Senate floor and
criticize the Bush administration--as it relates to al-Qaeda
now--the Bush administration, the Obama administration, or this
administration yet relative to the activities they have
underway. It does seem to me that the Senate and the House,
generally speaking, do support the efforts that underway.
So, with that, Senator Isakson.
Senator Isakson. Thank you, Mr. Chairman. Secretary Mattis,
I want to thank you very much for mentioning the names of those
four soldiers in Niger who lost their life last week. In
particular, I want to be sure and mention Dustin Wright from
Lyons, Georgia, who was one of the four troops who lost his
life.
I want to thank you and repeat what was told to me in a
Kroger grocery store in Marietta, Georgia, this past weekend
when I was home by a lady who came up, whose son is in the
United States Army, volunteer for the United States Army, is
overseas now. She talked about how proud she was for him to be
serving under people like you and the leadership we have in our
country. So, I want to thank you from the bottom of my heart
for that, but also tell you that is what the people in the
streets are telling me.
Now, Senator Coons and I go way back, and, in fact, the
chairman and I traveled to Africa and went to Darfur. We were
the second and third senators to ever go to Darfur, if I
remember correctly, and saw some of the horrible things that
were happening in Africa. And I appreciate on the one hand what
Senator Coons said about how complex the continent of Africa
is, and how many players are, and how hard it is to keep up.
But I think that underscores the reason you just cannot write
an AUMF with restrictions, or try and be so prescriptive in the
way you prescribe the geography--where they can fight or the
tools that they can use, or anything like that--and do so
without risking the life of your own troops.
I was in the military. It has been a long time ago. We had
muskets back then, but--[Laughter.]
Senator Isakson. I remember the limitations on your ability
to serve and what you could do, the rules of engagement, were
affected, I am sure by the AUMF at the time. I am sure the
AUMF--the rules of engagement flow down from the AUMF. Am I
right?
Secretary Mattis. Yes, sir.
Senator Isakson. So, when we are writing an AUMF here to
restrict our soldiers geographically, methodology wise, or any
other way, in the end we are affecting--potentially affecting
the rules of engagement we have on the ground in countries
where there are no rules, like Niger and the other countries we
talk about in Africa.
So, I think we have to be very much aware the people that
who are working for us--the people who we are working for are
our constituents, and the people who are working for us are our
soldiers in the field, our airmen and our soldiers and our
naval personnel. And they operate under rules of engagement
where they are limited to what they can do to carry out their
mission, and those limitations are then somewhat affected by
the AUMFs that exist at the time.
So, I just wanted to bring that point out. We have to be
very careful about what we are really--we are not just dealing
with limitations we as senators want to have--our country to
have. We are limiting the people who are out there as
volunteers fighting to save our country day in and day out in
some very dangerous places. Am I right?
Secretary Mattis. Well, you are, Senator, in terms of
geography or time, this sort of thing. And I think that people
run on hope, and if the enemy hopes we are going to quit on a
certain day, or if they know we will not deal with them if they
step over a certain border, then the enemy is going to do
exactly that. As our sergeants say in the military, ``the enemy
gets a vote.''
Senator Isakson. Absolutely. By the way, your comment about
a rock and roll band, that was--it piped something in my mind.
My staff is going to get mad at me for doing this. I am ad
libbing now. But I come from Athens, Georgia, and went to the
University of Georgia, and it founded a lot of bands. One of
the best ones is Wide Spread Panic, and that is what happens in
continents like Africa, the type of countries they are. You
have--you are not talking about an enemy that is just a
country. You are talking about groups within those countries
who are waging war in their own country that we end up getting
engaged with one way or another.
My next question, Secretary of State Tillis, from the
standpoint of any limitation whatsoever, from your testimony, I
take it that you do not think there should be--if we were to
write a new AUMF, it ought to simultaneously go into force and
replace the one that exists today. There should no gap. Is that
correct?
Secretary Tillerson. Yes, Senator. We cannot afford to have
any gap in terms of our authorities.
Senator Isakson. And like Secretary Mattis, you do not
think there should be any limitation, geographic or otherwise,
in that AUMF.
Secretary Tillerson. No, Senator. Again, this is the nature
of the enemy we are confronted with today.
Senator Isakson. And we have to be ready to make the
decisions that those--that those lack of limitations allow us
to make at the drop of a hat in today's type of warfare and
today's type of conflict around the world.
Secretary Tillerson. I think we have seen how quickly this
enemy can collect itself, raise forces, and overrun territory.
We saw that happen at an outstanding level of speed in Iraq.
Senator Isakson. My last comment, I have been giving a lot
of thought to this issue for a lot of reasons. One of them is
North Korea, which is a serious problem that all of us
recognize is serious. I do not know if we all recognize it as
serious as it really is.
But I was in college in the early 60s. John Kennedy was
President of the United States. And it was a period of time
where the Russians put missiles in Cuba and had the potential
of launching missiles 90 miles north into the United States and
into Miami. And that was a--you are talking about a huge issue
that got everybody's attention. For those few--Ms. Shaheen was
not here. She was not even born then I know, but most everybody
in this room was not here, but they were tough times and
perilous times.
President Kennedy did a great thing in that conflict
because--there was a book, Seven Days in May, that described--
he took it--we got to the point where we had done the air
photography. We had the evidence. It was clear that the
missiles had been installed in Cuba. Khrushchev had beat his
shoe on a table and talked about he was not going to take them
out. And Kennedy had done everything but tell him, yes, he was,
and lock themselves away in a room. And finally, President
Kennedy and his brother, Bobby, sat down one night and decided
it was time to draw a line that he would have to cross. And
they used an embargo on an island as a line--a red line in the
sand, so to speak.
Now, I know North Korea is not an island. I do not want
anybody to think I am comparing that. But what I am saying if
there was a non-lethal, but provocative, way to force them to
have to come into the game that they have started with, the
North Koreans, we are getting close in my mind to that point. I
know you all are thinking about it today, and the last thing I
would want you to do is talk about it because he is over there
in North Korea watching our television right now anyway getting
his intelligence.
But we are getting close to that particular time in the
history of or country where it is an example of how you go to
the next step without necessarily risking a life, by drawing
the line in the sand that somebody has got to cross, or else
you do end up engaged with them. So, I just wanted to throw
that thought out. I did not want you to have to respond to it.
But I thought it was a great example of leadership by a great
President at that time in a time that certainly was similar to
what we face today with North Korea.
Thank you.
The Chairman. Thank you very much. Senator Markey.
Senator Markey. Thank you, Mr. Chairman, and I thank you
both for your service.
During the last Congress and again this past January, I
introduced the Restricting First Use of Nuclear Weapons Act
with Representative Ted Lieu. This bill would ensure that no
President can launch a first-use nuclear attack against any
target anywhere without a declaration of war from Congress.
Under existing laws, the President possesses unilateral
authority to use a first-use nuclear strike on anyone anywhere
around the world, even in the absence of a nuclear attack
against us or our allies.
There is no question that since the dawn of the nuclear
age, it has been essential for the President to have clear
authority to respond to nuclear attacks on the United States,
our forces, or our allies. But in my view, no one person should
have the power to launch a first-use nuclear strike without
congressional approval.
Under Article II of the Constitution, the President has
authority to repel sudden attacks as soon as our military and
intelligence agencies inform him of such an attack. Nothing in
our bill changes the President's authority to use nuclear
weapons against anyone who is carrying out a nuclear attack on
the United States, our territories, or our allies. What we do
propose is a commonsense step to check any President's
authority to launch a first-use nuclear strike by prohibiting
such a strike unless explicitly authorized by a congressional
declaration of war. Since the dawn of the nuclear age 7 decades
ago, we have been relying upon cooler heads and strategic
doctrine to forestall the unthinkable, but too often those kind
of ad hoc measures seem less reassuring than ever.
Do you think, Secretary Mattis, that the President has the
authority to launch a first-use nuclear strike without
congressional approval?
Secretary Mattis. Senator, first, I would not say it is ad
hoc. It is extremely rigorous the discussions and the step-
through process for decision making. And I would just prefer
not to talk about a hypothetical that we have never confronted
since we--basically in the post-World War II time to today, we
have never--we have never had something like that come up.
Senator Markey. Do you contemplate a circumstance within
which the President of the United States could launch nuclear
weapons against another country where that country has not
launched nuclear weapons against us?
Secretary Mattis. If we--if we saw they were preparing to
do so and it was imminent, I could imagine it. It is not the
only tool in the toolkit to try to address something like that,
but I believe that congressional oversight does not equate to
operational control. I think that we have to keep trust, keep
faith in the system that we have that has proven effective now
for decades.
Senator Markey. Well, again, we are in the circumstance now
where the President talks at least elliptically to preventative
war, which would mean the United States launching nuclear
weapons potentially against North Korea as we did in Iraq. That
is not nuclear weapons, but starting a war in order to disarm
Saddam of nuclear weapons. That was at least the ostensible
justification that Dick Cheney gave 2 days before the war
began.
So, in your opinion, is there a circumstance under which we
would be able to use nuclear weapons if we have not been
attacked with them?
Secretary Mattis. The question, again, please, Senator?
Senator Markey. Again, I am coming back to this question of
whether or not there is a scenario under which a first strike
using nuclear weapons could, in fact, be used by the President
of the United States without consulting any member of the
United States Congress, much less the entire Congress in its
entirety.
Secretary Mattis. Senator, again, it's a hypothetical. I
think that if there was an imminent strike and it was the only
way to stop it, and I am not saying that would happen. There
may be different tools, conventional tools, to stop it, but he
has a responsibility to protect the country.
Senator Markey. Well, I think--I think it is too important
a subject for the United States Congress not to be informed as
to what the circumstances are under which we would use nuclear
weapons first. I think that it is imperative for you, and
Secretary of State, and others, if necessary, to give us the
classified briefing as to what those circumstances might be as
to when you think they would have to be used, they could be
used without ever consulting the Congress at all.
Would you be willing to come up and to give us a classified
briefing on when you think first use of nuclear weapons is
appropriate when we have not been attacked?
Secretary Mattis. Senator, I have a record of never being
reluctant to come up and speak. Some hearings are best in
closed session, but I am often reluctant to speak to
hypotheticals. But I can certainly go part way down that road
in terms of what might occasion something like that, like an
imminent attack, yes.
Senator Markey. Well, in my opinion, no human being should
have the authority to use nuclear weapons if there has not been
an attack. We have the most powerful military in the world--Air
Force, Navy, Army. If there is--if there is a threat that is
conventional, then we have a conventional response, but if
nuclear weapons are used, I think that there has to be a
process by which the United States Congress is consulted.
This is not something, in my opinion, which is any longer
hypothetical. I think it is something that President Trump
contemplates, although I will add that we introduced the
legislation when Hillary Clinton was ahead by seven points last
September. So, it has to do more with whether or not any
President should have this authority unfettered.
What would be the process right now to use nuclear weapons?
What would the President have to go through? Could you walk us
through what that consultation would have to be?
The Chairman. We will walk that through in another hearing
if it is okay. And just for what it is worth, we have had--I
know that you have asked about this, and I appreciate that.
Other members have asked the same. We have met with CRS and
understand that there has not been a hearing on this topic,
through them--they could be incorrect--since the 1970s. And so,
we do plan to have a hearing to walk through how the process
works. You know, there are multiple scenarios that come into
play, and I think a full hearing would be much better than a 1-
minute response.
Senator Markey. Thank you, Mr. Chairman.
The Chairman. Senator Risch.
Senator Risch. Gentlemen, thank you, and thank you for your
service.
You know I have been 9 years on this committee and the
Intelligence Committee, and I have sat through literally dozens
and dozens and dozens of debates, arguments, hearings,
witnesses on AUMF and trying to redo the 2001/2002, or replace
them and do a new one. And I am struck with a number of things
after all that time.
Number one, everybody wants to do something. Everybody
wants a new AUMF, and the parties on both sides are working, I
really believe, in good faith. It certainly is not a partisan
exercise. There are people on both sides working on a
bipartisan basis to do this.
The second thing that has struck me is I have seen dozens
of iterations of what a new--what a bill would look--a
resolution would look like. And the problem is we get high
centered on the details, and after listening to all this, I am
a little pessimistic about whether we can actually do something
new. The old system is in place, and with all due respect to my
good--my really good friend, Senator Flake, you know, none of
us voted on the original 2001/2001, but we vote every year on
this when it comes to the appropriations. In fact, at times, we
vote multiple times a year, depending upon how many CRs that we
do.
So, Congress could stop fighting ISIS if we wanted to. You
know, we all the time put restrictions on funding as to what
the money cannot be used for, and we are pretty successful in
that regard when we do it. The problem is, of course, we both
know that the--that the will is different than what we would
like to see in a perfect world. So, I agree with you, we did
not vote on it directly, but all of us here have had a say
every single year.
In any event, you know, the Founding Fathers had a really
good idea. They said, look, the first branch of government, the
legislative branch should decide when we are going to war.
Really good idea because the--we are not made up of the
military branch. The military branch is the one more likely to
pull the trigger quicker than the--than the civilian branch is.
So, they put that in our hands.
The other idea they had, which was also an excellent idea,
is that Congress would not run the war. As has been pointed out
here, you cannot have the politicians running the war. You need
a commander-in-chief, and that was a really good idea. The
difficulty, of course, today is things have changed so
dramatically since the time that that was done. War fighting
has changed. On top of that, those guys could not possibly have
thought that a war we are fighting is against non-state actors,
against people dispersed all over the world with a common idea
of what they--what they want to accomplish. And it is so
different today than what it was then.
So, where does that leave us? I think we have got the
constitutional provisions, which are pretty clear. We have got
the War Powers Act, which you can argue is constitutional in
all or in part. And we are moving forward, but we do not seem
to be headed towards a resolution on this AUMF.
I would like to get your thoughts on an issue that has
already been touched on. We have talked a lot about terrorism
because that is where the--that is where the fight is. But I
think North Korea has been raised a couple of times, and to me,
that is the biggest issue that we have if you are going to
describe ``big.'' What happens when somebody knocks on the door
of the Oval Office and says, Mr. President, North Korea has
just launched, what do you want us to do? And, look, there is
no time for an AUMF. There is no time to get the lawyers
involved to determine what can or cannot be done. And somebody
has got to make--somebody has got to make that decision.
So, I appreciate the chairman's thoughts that we should
have a--should have a separate hearing on this particular
issue. But I would like to get your thoughts on what--and I
know the lawyers are on both sides of this. I have heard cadres
of lawyers argue whether the President has this power, whether
it is limited, whether Congress has that power. I would like to
get your thoughts under the scenario I just talked about.
As far as the terrorism thing, we deal with that regularly
in the Intelligence Committee and on this committee. Tell me--
tell me about North Korea. What happens? What happens if
somebody knocks on the door and says, Mr. President, they have
launched? A summary. In summary. I am not going to ask you to
give us anything classified obviously.
Secretary Mattis. Senator, the first step, of course, would
be that our ballistic missile defense forces at sea and in
Alaska, California, the various radars would be feeding in, and
they would do--they would do what they are designed to do as we
make every effort to take them out. The response, if that is
what you are referring to, after the immediate defense, would,
of course, depend on the President and laying out options, a
wide array of options, I will tell you, and in alliance with
our allies as well, I might add, because many of them have
roles to play here and have indicated they will be with us. And
we would take the action the President directed, and I am sure
that Congress would be intimately involved.
Senator Risch. Well, and, of course, under the scenario I
have outlined, this is a matter of minutes, not a matter of
days or even hours.
Secretary Mattis. Defenses will go, sir, if we do not do
any----
Senator Risch. I get that.
Secretary Mattis. I mean, the President will be woken up or
whatever, but our commands are--we rehearse this, I will just
tell you, routinely.
Senator Risch. I get that.
Secretary Mattis. I will just leave it at that in this open
session, sir.
Senator Risch. Secretary Tillerson, do you have anything to
add to that?
Secretary Tillerson. Well, I think as Secretary Mattis
indicated, we do have defensive mechanisms which are in place.
There would be some judgment made as to the effectiveness of
those, and then there would be some judgment made of whether a
necessary and proportionate response is required.
You know, one of the strengths over the last 70 years has
been the deterrence, and the fact that no President--Republican
or Democrat--has ever foresworn the first-strike capability.
That has served us for 70 years. So, I think any consideration
of foregoing that does change in a very material way the
strength of that deterrence.
Senator Risch. I agree, Mr. Secretary. And also, it seems
to me that the enemy we are dealing with here with North Korea,
that deterrence issue does not seem to be fazing them because
either a man would have to be absolutely crazy or incredibly
stupid to not know what was going to happen after that.
My time is up. Thank you, Mr. Chairman.
The Chairman. So, I think in that scenario, it is about a
15- to 20-minute process before response takes place. And,
again, I think it would be very edifying for us to walk through
that.
Let me, before I turn to Senator Kaine, Secretary Mattis,
you have--you have, I know, said on several occasions that you
think it would be great if Congress spoke with one voice on
this issue and showed support. And, look, I hope we are going
to have an outcome here that does that. But does anybody get
any sense anywhere in the world that the United States and the
people that are within the United States are somehow divided
over fighting ISIS, al-Qaeda, and groups that spin off?
Secretary Mattis. Chairman, there have been times when
allies and even, I think, our adversaries have been convinced
we were willing to give up and pull out of certain theaters,
yes, sir, I think so, but those are operational aspects. I
think as far as our antipathy of people----
The Chairman. And you are really speaking more to what
happened in Iraq and what happened--what are you speaking to
when you say ``them being concerned about.''
Secretary Mattis. Pulling out--yeah, announcing the pullout
from Iraq, sir. Obviously, that was one of the reasons ISIS had
a chance to grow. When we were talking about pulling out of
Afghanistan, we had a total of 50 nations in the field fighting
the enemy. As we were pulling out, we have now dropped to 39.
That is turning around, and those allies are coming back on
board, adding troops based on the rollout of our South Asia
strategy.
So, you can see what happens as both--you know, when we
started pulling out of Afghanistan, people thought, well, maybe
the Taliban will want to make peace then. Some of us doubted
that, but, in fact, they accelerated their campaign. So, you
see the enemy's response. You see allies, 11 of them, leaving
the field when they saw us saying we were going to leave. So,
yes, it does have an effect. But I do not think it is that the
enemy believes the American people are suddenly willing to vote
for the kind of things our enemy exists for, believes in. But
they at times question whether or not we have the will to stand
the strain.
The Chairman. Thank you very much. Senator Kaine.
Senator Kaine. Thank you, Mr. Chair. The question of this
hearing is whether we can be in an endless war with no
congressional vote against newly-formed terrorist groups all
over the world forever. We are in year 17, and I have heard
testimony before that this could go on for generations with no
vote of Congress.
The recent deaths of four American troops in Niger and the
news about a June death of a Green Beret in Mali while deployed
there on a special forces mission raise many questions about
the geographic scope of the American military campaign against
terrorism. And I repeat what I have often said in the last 4
years: it is time for Congress to have a public debate and vote
about an authorization for U.S. military action against non-
state terrorist groups. Many of us believe we are legally
required to do. Others believe if not required, we would be
wise to do so.
Secretary Mattis has testified in support of this on
earlier occasions, as has the chairman of the Joint Chiefs of
Staff, General Dunford. Our troops and the American public
deserve an open debate and vote on the extent of military
operations. If not in year 17, in year 30? In year 40? In year
50?
Mr. Chairman, I want to introduce for the record a contract
solicitation issued by the Navy in 2014 seeking to contract
with an entity able to provide casualty evacuation, search and
rescue, and personnel recovery in connection with ``high-risk
activities'' in Africa. It designates 14 nations, five of which
have been identified to Congress in War Powers notice letters.
I find no fault with the contract solicitation. You have to
plan. But I believe that this level of planning, and this is
from the Obama administration era, demonstrates a contemplated
scope for American counterterrorism activity in Africa far
greater than what has been briefed to Congress, and
significantly greater than what the American public
understands.
[The information referred to is located at the end of this
hearing transcript on pages 97.]
Senator Kaine. To our witnesses, Senator Flake and I have
introduced an authorization for military action against ISIS,
al-Qaeda, and the Taliban to replace 2001 and 2002, and to
finally engage us in our Article I responsibility. You signed a
letter to Congress on September 5th opposing the proposal. I
will introduce that for the record as well.
The Chairman. Without objection.
[The information referred to is located at the end of this
hearing transcript on page 93.]
Senator Kaine. I think we can stipulate that this
administration, like the two preceding administrations,
believes that the 2001 authorization and 2002 gives it broad
power in this area, and would rather than not have any
congressional revision. But we have a job to do, the Article I
branch, so let me ask you about your reasoning.
Your first objection in the letter to the proposal is that
``The legislation would arbitrarily terminate the authorization
5 years after date of enactment. This is inconsistent with a
conditions-based approach in the President's South Asia
strategy. Such a provision could also unintentionally embolden
our enemies with a recognizable goal of outlasting us.''
The annual NDAA we pass every year expires every year, but
Congress still manages to pass the next NDAA. And
appropriations bills and continuing resolutions expire every
year, and then they are followed by subsequent appropriations.
And other critical national security legislation must have
legislation, like FISA, for example, commonly have an
expiration date and a need for congressional reauthorization.
Do either of you view the annual expiration of the NDAA or
defense appropriations as Congress ``arbitrarily terminating
our support for the military?''
Secretary Mattis. No, sir, we have several hundred years
that this works. It may be imperfectly with continuing
resolutions, but I suggest the AUMF is substantially different.
Senator Kaine. Do you have any evidence that the annual
expiration of the NDA or defense appropriations unintentionally
emboldens our enemies?
Secretary Mattis. The continuing resolution has certainly
inhibited our ability to adjust the military to the modern
threats.
Senator Kaine. Do you think the enemies are emboldened by
thinking that we will not pass a CR or will not pass an
appropriation?
Secretary Mattis. I do not think they understand those kind
of intricacies, whereas an AUMF is a statement of purpose.
Senator Kaine. You count on being able to get the next NDAA
passed and the next appropriations bill passed because you have
confidence in your request, and you have confidence in Congress
to take seriously the need to defend the United States. Is that
not correct?
Secretary Mattis. That is correct, Senator. My reservation
is that, for example, I have several dozen people who have been
waiting some time for hearings in order to give me the civilian
oversight of the Department of Defense we need and respond
appropriately in keeping Congress informed, and I cannot seem
to get floor votes on some and certainly hearings for others.
So, I think it is the speed at the--at the speed of relevance
for something like this. We would want to make certain that
where you get into could be construed as the--not just the
oversight, but the management or direction of this fight has a
degree of continuity that destroys the enemy's confidence that
they can outlast their enemies.
Senator Kaine. If you deemed it advisable at the end of 5
years that we should continue the battle against these
authorizations, do you doubt your ability to make the case to
Congress, or you doubt--do you doubt the ability of Congress to
take seriously the need to defend the Nation against terrorist
organizations?
Secretary Mattis. Sir, I am not in the political realm. I
realize I play a political role up here, but I am probably----
Senator Kaine. You do not--you do not doubt the will of
Congress to battle non-state terrorist groups, do you,
Secretary?
Secretary Mattis. Sir, this war is so non-traditional that
I think we----
Senator Kaine. I understand that, but you do not doubt the
will of Congress to defend the Nation against non-state
terrorist groups, do you?
Secretary Mattis. No, I do not.
Senator Kaine. A second objection, if I could--I am sorry I
am having to move--is that the resolution includes a definition
of ``associated persons or forces'' that is inconsistent and
could result in unnecessary uncertainty. The definition says,
``associated persons or forces or individual entities other
than a sovereign state that are part of or substantially
support al-Qaeda, the Taliban, or ISIS, and are engaged in
hostilities against U.S. armed forces and other personnel.'' I
am just going to leave that for the record. I think it is
crystal clear, and there is no uncertainty about it.
The third and final objection in your letter is that the
joint resolution would create a cumbersome congressional review
process for use of force against new associated forces or new
countries. Let me ask you this. Does the administration object
to having to identify to Congress the associated forces we are
targeting with military force, to notify us?
Secretary Mattis. I believe that under Article II of the
Constitution, the President has the authority to declare a
threat to the United States as the elected Commander-in-Chief.
Senator Kaine. Do you object--does the administration
object to notifying Congress of the associated forces against
which you are taking military action?
Secretary Mattis. I do not think so, sir. We have been
forthcoming with that very information.
Senator Kaine. You have, and do you object to the need to
notify Congress of the countries where military action is
undertaken? You do that in the War Powers letters correct,
right?
Secretary Mattis. We do it routinely, sir.
Senator Kaine. That is all that Senator Flake and I have in
our resolution. We require you to notify us about countries and
notify us about associated forces, and you can immediately take
action against them, subject only to a resolution of
disapproval by Congress, which is the current law.
If I could just conclude, Mr. Chairman. Based on the
answers in this quick thing, and it is tough to do it so
quickly, I have a hard time understanding the opposition to the
resolution as anything other than we do not want congressional
oversight. There is a 5-year sunset reauthorization with an
opportunity to extend just like we do in FISA, just like we do
in the Patriot Act, just like we do in NDAA, just like we do in
appropriations. The ``associated forces'' definition is
extremely clear. The process for countries is not a geographic
limitation. It is just a notice requirement that Congress can
then affirmatively take steps under the normal rules of the
Constitution to rebut.
I recognize that the administration feels like it does not
want any more authority, but to quote my colleague, we are more
than a feedback loop. This is a constitutional power, and we
should not be putting troops into harm's way, and as Congress
standing back and trying not to have our fingerprints on this
when it is mutating all over the globe.
The Chairman. I think we are good.
Senator Kaine. I think it is a forever war, and I worry
about deeply about handing the power over to presidents to do
this without the feel--the need to come to Congress at all.
Thanks, Mr. Chair.
The Chairman. You did a good job. [Laughter.]
The Chairman. I do have remaining time. I do want to say
that what the senator said is true. I mean, you just have to
notify the countries. You just have to notify the additional
groups, so that part is not cumbersome.
I would ask, and this was going to be a cue from us anyway,
but I would like to know what the problem is with the
associated forces. It does appear to be very broad, and I would
like, if it takes a classified response, we will be glad to
take it. But it is--I do not understand what the problem is
with associated forces, and I think it would be--I actually
ask, and I know you will send me a response to that. I
appreciate it. Senator Paul.
Senator Paul. You know, I think it should not surprise any
of us that administrations, Republican and Democrat, come to us
and say they believe in unlimited Article II power to execute
war. What should surprise and worry us, though, is that it
seems like they also argue that they have virtually unlimited
power to initiate and to execute war, and that is where the
real problem comes here.
I am pretty much like everybody else, execute the war. I do
not want to have you restrained by rules of engagement, I want
to engage and kill the enemy, but initiation of the war was
given to us.
Madison wrote that the executive branch is the branch most
prone to war, and, therefore, was studied--we gave that power
to the legislature. And so, while some would argue, well, we
can just not appropriate money, that becomes very difficult.
Even in Vietnam, nobody wanted to cut off the money because no
one wants to be accused of not giving money to soldiers in the
field. So, our real only chance of preventing war is not to
initiate the war.
The problem we have with you coming forward to us and
saying--my goodness, you will not even tell us we are not going
to have preventative or preemptive war with North Korea. This
sends a signal not just that we are willing to do first strike,
but what signal does it send to enemies of other nuclear
powers--enemies of Russia, enemies of China, enemies of
Pakistan, of India--that we are reserving the right, if we do
not like what weapon you have and you think it might reach us,
we might as well just take you out.
I mean, look, Pakistan and India are pointed at each other.
You have got Israel pointed at Saudi Arabia, pointed at Iran.
You have all of these enemies, and if we are going to assert
that, yes, we have the right and the will, and we will take
preemptive war against a nuclear power, I think that is very
troublesome. But if we want to fix it, we should fix it.
You know, we complain if administrations want to take II
power, we reassert our power. It is not just us. It has been
generation after generation of Congress just acquiescing in
this. And while I applaud the AUMF that is being put forward as
asserting our authority, if it does not limit the authority of
the executive, I am not sure we are a lot better. My problem,
if the executive branch thinks it is too restrictive, I think
will still authorize war in 34 countries. At least seven for
certain, but probably 30-some odd.
So, when we look at this and we want to ask whether or not
there should be limitations, whether or not we are prepared to
be involved in perpetual war, or whether we are prepared to let
any president involve us in perpetual war, we have to think
about this. I mean, the war started in the first generation
after Muhammad. I mean, you have got Ali Hussein, and Yazid the
First fighting in 66 A.D. They still remember the Battle of
Karbala. The Shia still mourn that battle 13-some-odd years
later. Are we willing just to not have any more votes and say
the vote in 2011? No intellectually honest person thinks 2011
has anything--2001 has anything to do with this, I promise you
that.
It says specifically we are going after the enemies who
attacked us. ISIS has nothing to do with that. Nobody in Niger
has anything to do with 9/11 other than they have sort of this
ideology of radical Islam. But I do not think we gave the
executive branch a blanket authority just to go to war anywhere
they want against people who they say are, you know, a part of
radical Islam. Ultimately there is going to have to be
diplomacy involved in this as well.
You know, how are we ever going to end the war? Is there
ever an end to this war? But really, the crux of the argument
is over who has the power. You say you have got it. Dick Cheney
once said that it should be unconstitutional to challenge
Article II authority, which he also meant to be unlimited
basically. The Constitution was very clear. We were supposed to
initiate war. It does not matter whether it is a state or a
non-state actor, initiation of war comes from Congress, and I
believe that very strongly. And I think if we all did, we
should assert our power.
We have the ability to assert our power, and we should
resist when the administration--anyone, Republican or
Democrat--comes before us and tells us they have--they believe
they have the ability to have preemptive war anywhere, any
time, and they have the ability to continue to fight a war
against an ideology wherever they perceive it to be. So, I
think it is very, very dangerous, and this should be a wake-up
call to all of us, and if we can come together.
What I would say, though, just passing an AUMF is not
enough for me because it should be an AUMF that does give us
some hope of someday coming to an end, and someday there will
be an end to the war. I see no end to this war historically. I
think the war and the answers are going to come from within
Islam. I think Islam is going to ultimately have to stamp out.
I think we are a target everywhere we go. And, yes, we can
defeat anyone, but I do not think in the end it ends the war.
I mean, we went to Yemen. You guys just did it on your own.
So, you are in a new war theater now. You are involved with
Saudi Arabia there. You got 17 million people on the point of
starvation in Yemen, and we are assisting and aiding the Saudis
in blockading. We give them weapons. They kill civilians. They
killed 150 people in a funeral procession.
So, when we go to a village and you guys come and say, oh,
we got great information, which no one will tell me
specifically what the information came from that village in
Yemen. But when we went in there unavoidably, and I do not
blame our soldiers, I blame us, the people in charge, but women
and children were killed in that village. What do you think--
and you say, well, we were--we did not try to do that. Sure,
but what do you think they tell about us in the surrounding
communities? What do you think they say about the time the
Americans came in the night, and women, children, and a whole
village was wiped out? What do you think they say about that?
They will repeat that by oral tradition. The same way they
remember Karbala from 680 A.D., they are going to remember
this.
So, I do not think we can kill more than we create in the
process, so ultimately there is going to have to be another way
that involves some diplomacy, some discussion. It does not mean
we cannot resist the enemy and we should not, but it should not
be your power. I am here to say very forcefully it is not your
power. But the only way we will ever change that is if we as a
body stand up and say enough is enough, we are going to
reassert the power of the Senate and the power of Congress to
determine these things. And we could, and my admonition is to
do that.
I am alarmed today to find out that Article 10 basically
has us involved in civil wars in Africa. So, we can call any
kind of euphemism we want--``train and equip''--but it sounds
like you have got a conflict going on there. You have got
conflict there. You have got conflict going on in Niger. We
have 6,000 troops in 54 countries in Africa, and we should just
politely say, oh, we were given this authority under Article 10
to be anywhere any time?
I was alarmed that you were going to justify it with 9/11.
Now I am even more alarmed that Section 10 or Article 10 sounds
like you believe you can be anywhere any time whether there is
a war going on or not. And we can say it is train and equip,
but I suspect there is more going on in Niger than train and
equip.
But I do not think there is ultimately a question there
other than I hope that we as a body would pull together, and
stand up, and resist, not because you are bad people. You are
good people. You served your country. You want what is best for
your country. All soldiers are. But the balance of power--
Madison said we would pit ambition against ambition, so we
would check and balance each other. We have not been checking
and balancing the executive branch for 60-some odd years, maybe
longer. So, we need to stand up, and that is my admonition to
our body, and I do not think I will change your minds. But it
is an admonition that we should have a real full-throated
debate, and I thank the chairman for the beginning of this.
Thank you.
The Chairman. No, thank you very much. And my guess is
under Title 50 authorities, there is a great deal underway that
the American people nor us are aware of, but that is part of
what we are dealing with here. Senator Merkley.
Senator Merkley. Well, thank you, Mr. Chairman, and thank
you to both of you, Secretaries, for your management of
perilous circumstances around the world.
Secretary Tillerson, I believe I understood you to say that
the retention of the potential for first use with nuclear
weapons has been a foundational doctrine that has helped keep
the peace over the last, I think you referred to 70 years. Did
I catch that right?
Secretary Tillerson. Yes, Senator.
Senator Merkley. I would say that maybe not. It has not
generally been the retention of the potential for first use as
it has been assured destruction, assured retaliation that has
kept that peace, and there is a significant difference between
the two. And I believe I heard one of you refer to that we had
not really considered the use of nuclear weapons after World
War II. I am not sure if I heard that right. Did I hear that
right?
Secretary Mattis. Senator, I said that we have not
initiated the use of nuclear weapons since World War II.
Senator Merkley. Okay, great. And that would certainly be
very accurate, but we have had serious conversations about the
potential of using a nuclear weapon in--as a first-use weapon
both in Vietnam and in Korea. And, Mr. Chairman, I would like
to submit for the record a CIA document that goes through--it
is March 18th, 1966.
Senator Risch. [Presiding] There is no objection.
[The information referred to is located at the end of this
hearing transcript on page 81.]
Senator Merkley. Thank you. It noted they were analyzing in
the context of a debate about using nuclear weapons the issues
that might flow should we choose to do so, and they noted some
of the following things. They said NATO would be badly shaken.
They said once a taboo had been broken, there would remain no
effective barrier to the expansion of such weapons. They said
there would be great agitation in Japan, probably including the
loss of facilities available to the United States. They said
there would be accelerated momentum for nuclear proliferation,
that there would be fundamental revulsion of the United States,
including condemnation of the United States and the United
Nations, that no British government that failed to condemn the
U.S. would probably be able to stand, and that there would be
pressure for immediate nuclear disarmament. This was the list
of the things that they talked about that would be
consequences.
Are these all kind of concerns that you all would share if
the U.S. was to utilize a nuclear weapon against North Korea,
or another circumstance where it is essentially a conventional
setting?
Secretary Tillerson. Senator, are you asking with respect
to a first strike or use of a weapon under any circumstance?
Senator Merkley. Use of a first strike with a U.S. nuclear
weapon against conventional forces.
Secretary Tillerson. I am sure some of those conditions in
that report are enduring. I am not sure all of them are. I
would need to study it and give it greater thought.
Senator Merkley. Secretary Mattis?
Secretary Mattis. I would have to study it, sir. I would
just tell you that we have not been discussing this sort of
thing in any kind of an actionable way.
Senator Merkley. Thank you. I am very, very pleased to hear
that. I was very struck when I read this list. It is that they
would all be things that probably stand up today if we were
discussing them, the impact on NATO, our allies, the world
attitude toward us, the effect on the British Government, and
so forth. It just--I was almost like, wow, it could be a list
for today's conversation.
Turning to the 2001 AUMF, my colleague from Kentucky, and
please correct me if I get this wrong, but noted that most
rational people looking at the 2001 AUMF would not see a
connection to the uses in which it is being employed today. Did
I get that right? And I have it--I have it here in my hand.
And earlier, Secretary Tillerson, you noted that you were
not sure of the motivations behind that AUMF, but it is so
clearly laid out in the ``whereases'' of that--of that AUMF.
And it is very specifically targeted to use all necessary and
appropriate force against nations, organizations, or persons
planning, or authorized, or committed, or aided the terrorist
attacks that occurred or harbored such organizations or
persons. Completely the--completely about those 2001 attacks.
The thing that I think all we are struggling with as a
committee in our role in this constitutional balance is between
a situation--a vision of the past in which our Constitution was
framed around a declaration of war and then an executive who
commanded forces in such wars, and the modern battlefield of
the world in which there are terrorist groups scattered about,
and whether what you are asking for, which sounds like
permanent worldwide ability for the executive on its own to
take on radical Islam. And that is quite a different vision
than the one laid out in our Constitution.
Am I--am I describing it fairly in terms of--because I did
hear no timeline, no geographic constraints, no restriction on
type of operations. That sounds a whole lot like a permanent
transition of power to the executive that really takes Congress
out of the picture.
Secretary Mattis. Senator, that statement from the
authorization goes on to say, ``In order to prevent any future
acts of international terrorism against the United States by
such nations, organizations, or persons.'' And I think you
bring up a very valid point because the Westphalian world that
the Constitution was written in obviously has been thrown aside
by these very powerful transnational groups that we see right
now.
And so, however we deal with this to keep Congress'
legitimate, strong, constitutional power in play has got to
recognize that traditional forms of warfare are no longer used.
There are ways to do this. There are many variations that have
been offered for AUMFs that could address this or, in some ways
will not address it. But I think we do have to recognize that
Congress was very blunt that it was to prevent future acts of
terrorism.
Senator Merkley. Yes, and it sure was: ``by such nations
and organizations that had been involved in planning,
authorizing, and assisting the terrorist attacks on September
11th.'' But often I hear, and I think we have heard a number of
times today, that this has been reinterpreted to involve any
associated forces. Now, there is no wording in this of
associated forces, and it is often, I find in just academic
discussions, it is people think that those words exist in here.
And I do understand the point that organizations change
names, and fracture, and move on. But we are quite distant in
purpose and time from these groups which attacked us on 2001.
And the challenge here is what--if one takes this ``associated
forces'' as an add-on to this, an implication of this, then the
question becomes is not almost anything associated in the
world, and where is that line? And that is a challenge for this
committee and in dialogue with the executive to figure out what
is that line. And that is what we are struggling with. And I
for one am not ready to concede that the line should be wiped
out with no geographic limits, no time limits, no style of
force limits.
Thank you, Mr. Chairman.
The Chairman. [Presiding] Thank you very much. Senator
Gardner.
Senator Gardner. Thank you, Mr. Chairman, and thank you,
Secretaries Tillerson and Mattis, for your leadership and your
commitment to our country.
A couple of questions. I believe, Secretary Mattis, you had
stated that one of the advantages of Congress passing a new
AUMF would be to show the resolve of Congress and the unity of
Congress. What does--what does that look like, though, a
``united Congress?'' Is that a filibuster-proof passage of an
AUMF? Is that a 100 to nothing passage? What does a ``united
passage'' passed AUMF look like?
Secretary Mattis. Well, I am not sure it would have to a
hundred percent, sir, but it would have to show, I think, a
bipartisan embrace of the definition of the threat, and then at
least sufficient congressional support for what to do about
that threat, that we would see America standing up saying that
is where we stand, if that helps, Senator.
Senator Gardner. Under the AUMF that is currently in
effect, has there been any material change to the authorities
that you view, the President views, the AUMF through that
President Obama had not already defined that way, utilizing the
same authority, the same reasoning?
Secretary Mattis. There have been some changes in the
application.
Senator Gardner. Rules of engagement issues.
Secretary Mattis. That sort of thing. But I do not--I
cannot think of any change in the authorities that we think we
are operating under.
Senator Gardner. Has there been any additional AUMF grant
of authority since President Obama left office over the last 10
months?
Secretary Mattis. I do not believe so, sir.
Senator Gardner. If you move from a Title 10 type of action
to an AUMF type of authorization, what would that require? What
would that look like?
Secretary Mattis. I think it would have to be an
authorization that defines this enemy sufficiently, that it
does not restrict our operations in the field, and sets a
condition under which we are to fight for an objective.
Senator Gardner. So, we are in the Philippines right now
under Title 10. Is that correct? In the Philippines right now
under Title 10. Is that correct? Do we have special operators
in the Philippines?
Secretary Mattis. Yes, sir, we do.
Senator Gardner. And are they under Title 10?
Secretary Mattis. I know we have had them there under Title
10. The difference is that now with the fight going on in
Marawi, I believe we reported them under ``other authorities''
as well, AUMF, but I am not positive. I need to check on that.
Senator Gardner. So, is that a presidential declaration? Is
that a determination by you? I mean, when is there a cold break
between a Title 10 action and a 2001 AUMF action?
Secretary Mattis. Well if troops were to be sent into
direct combat, which they are not in the Philippines--we are
supporting, again, with intelligence, surveillance,
reconnaissance--that would cause us, under the War Powers
Resolution, to notify you of that. But I think we notify you of
the troops there under our normal maintaining your knowledge of
where we have troops deployed, not in a combat role.
Senator Gardner. Quickly here because I want to move on to
North Korea. Quickly here, what is the most significant rule of
engagement change that we have seen right now in our fight
against ISIS from the previous administration to this
administration?
Secretary Mattis. I believe it would be in Afghanistan
where we have authorized the troops there not to have a
requirement for proximity to the enemy. In other words,
wherever we see them, we can attack them. They are declared
hostile--Taliban, al-Qaeda, ISIS--and there is no need for them
to have to be in self-defense mode to call our air support, for
example.
Senator Gardner. And that goes to your question--your point
you made on lawfare earlier. They knew that, correct? Our enemy
knew that.
Secretary Mattis. Absolutely.
Senator Gardner. They could utilize that rule of engagement
against us, and that is your point on lawfare that they were
protecting themselves based on rule of engagement, correct?
Secretary Mattis. Absolutely, sir.
Senator Gardner. And we have made significant progress in
the fight against terrorism because of a change in the rule of
engagement, correct?
Secretary Mattis. And the tactics we have employed, yes,
sir.
Senator Gardner. Thank you. North Korea. Secretary Mattis,
you said that North Korea was the most urgent national security
threat facing our country. Do you still agree with that today?
Secretary Mattis. I do.
Senator Gardner. Secretary Tillerson, do you agree with
that?
Secretary Tillerson. I do.
Senator Gardner. Has there been--I hear comments about
first strike and nuclear capabilities. Kim Jong-un, to our
knowledge, has not given up his first-strike capabilities. Is
that correct?
Secretary Tillerson. Well, it is unclear what his striking
capabilities are at this point from a nuclear perspective.
Senator Gardner. But should he have a nuclear weapon, has
he given up a first-strike possibility?
Secretary Tillerson. Not to my knowledge.
Senator Gardner. Secretary Mattis?
Secretary Mattis. No, sir.
Senator Gardner. Has anything in our nuclear chain of
command doctrine changed between the previous administration
and this administration?
Secretary Mattis. No, it has not.
Senator Gardner. So, the chain of command, the response,
the first-strike capability, that is all the same, correct?
Secretary Mattis. Yes, sir.
Senator Gardner. Secretary Tillerson, you may or may not
wish to answer that?
Secretary Tillerson. No, as far as I am aware, nothing has
changed.
Senator Gardner. Thank you. An additional question on North
Korea. You have said, Secretary Mattis, I believe, that if
there was an action going into North Korea, under Article II,
the President would obviously act if need be, but an AUMF would
be required for further operations. Is that correct?
Secretary Mattis. I would think an AUMF, a declaration of
war, you know, it would depend on the circumstance, so I would
have to see the circumstances surrounding the requirement for--
to engage in conflict, sir.
Senator Gardner. Thank you. And I know that you have made,
at least in the last week, Secretary Tillerson, that the
Department of Treasury announced several new sanctions against
Chinese entities. Are there more Chinese entities forthcoming
in sanctions as it relates to North Korea?
Secretary Tillerson. There are additional sanctioning
targets that Treasury has developed.
Senator Gardner. Thank you. And I am running out of time
here, so a couple brief questions for you. Secretary Mattis, do
you believe the Iraqi Security Forces' use of U.S. armor is
legal under the Iraqi constitution as it relates to what is
taking place right now with the Kurds--Kurdistan?
Secretary Mattis. Sir, right now we have got a pause in the
activity on both sides as a result of the referendum, and I
think we are talking our way through it right now.
Senator Gardner. Well, I would like to have an answer,
though, on the Iraqi Security Forces' use of U.S. armor and
whether that is legal under the Iraqi constitution, and whether
Iranian involvement in the current situation could create
further implications under U.S. law as it relates to the use of
that equipment. That is one question I would like to have an
answer to.
The second question relates to Section 702 reauthorization.
I know Senator Kaine mentioned FISA reauthorization earlier.
Secretary, is the Department of Defense asking for Section 702
to be reauthorized as part of the Defense Authorization Act
Conference Committee?
Secretary Mattis. I need to talk with the President about
that, sir.
Senator Gardner. Thank you.
The Chairman. Before turning to Senator Booker, I do think
as we move through this, the lawfare issue that you brought up
relative to Afghanistan, that was a significant problem. Our
enemies were aware it existed, and they took advantage of it.
And I just--I think that was a very good line of questioning
also. Senator Booker.
Senator Booker. Thank you, Mr. Chairman. Thank you,
gentlemen, for being here, and I appreciate your service to our
country.
Secretary Mattis, right now in Niger, it is becoming a
pretty significant beneficiary of a lot of DOD activity, a lot
of DOD funding under the train and equip--global train and
equip program. To my understanding, there is a new Air Force
facility in Agadez amounting to hundreds of millions of
dollars. Is that correct?
Secretary Mattis. That is correct.
Senator Booker. And we are seeing a lot of talk now about
continued military operations in the region, continued
investment of U.S. troops as well resources. Is that correct?
Secretary Mattis. Senator, we have been operating in Niger
and the surrounding area for about a little over 20 years now,
yes, sir.
Senator Booker. But there is--but my point is that there
has been a significant increase of recent.
Secretary Mattis. There has been recently as we watch--as
we try to build them up to take care of their own security.
Senator Booker. And at the same time, we are seeing that,
at least a proposed budget from the administration for food
peace programs. It used to total about $33.8 million. The
proposed budget is now being cut to $1.6 million for all
bilateral aid to Niger. Is that correct, sir, to your
knowledge?
Secretary Mattis. I am going to have go back and look at
the figure.
Senator Booker. Those figures are correct, in the proposed
budget. So, in other words, a massive ratcheting up of our
military operations, a proposed decrease. Now, I bring that up
to you really because, and I--and I think I have heard you talk
to this, but I would like for you to speak to it now. You know,
we are seeing in a lot of these states we are involved in
Africa very different conditions often than we have seen in
other places we have been involved in train and equip programs
or fighting in the sense of what is happening with a lot--in a
lot of these countries.
Let us turn to Nigeria for a second. Nigerian military
forces have conducted significant crimes, I would say,
massacres of Shia Muslims in the northeast town of Zaria in
which over 350 people were killed. The Nigerian air force
bombed and displaced persons--a displaced persons camp killing
236 refugees and injuring thousands more. In 2014, the military
was accused of over 600 unarmed detainees--of killings of over
600 armed detainers, interring them in mass graves. There has
been very little progress or accountability for these
incidents.
And I guess I say this because we seem to be involved in
places like Nigeria, and you know that as we decrease efforts
in stabilizing democracies, helping with food aid, creating an
environment where there is stability, and we are involved in
partnering with militaries that are responsible for atrocities,
that that creates an environment for more terrorism, or do you
disagree with that statement, Secretary Mattis?
Secretary Mattis. Senator, what we try to do is maintain
our diplomatic engagement, our development support, at the same
time provide sufficient security, which is by training them how
to do their own security behind which the development can occur
to remove the root causes. Anywhere you see U.S. troops,
Senator, you will find them schooling local troops. Part of our
training, the law of armed conflict is military ethics. We are
the good guys in trying to get this across.
Senator Booker. I do not take issue with that at all. What
I take issue with is that you are saying we try to maintain our
efforts at the diplomacy and food support because that is not
reflected in budget numbers.
Let me just continue to the point I was trying to make,
that there is a lot of extensive research, which I am sure you
aware, that in addition to socioeconomic status, excessive
force by police and military forces engenders deep grievances
that lead to radicalization, and the heavy-handed responses
from military drive recruitment and violent extremism in
organizations that often then lead to terrorist activity. You
are aware of that research.
Secretary Mattis. I am not aware of what we have done. In
May of 2014, when 276 Nigerian girls were kidnapped. I do not
find the connection between our activities and Boko Haram's
kidnapping of hundreds of girls.
Senator Booker. I was not making--I was not making that
connection, sir. I am simply making the point Senator Paul made
within Yemen, for example, that we are engaged in
counterterrorism activities, partnering with military
operations like we are seeing with Saudi Arabia, like we are
seeing with the Nigerian forces. And they are conducting
operations in a way in which civilians are killed, in which
atrocities are accomplished. In your opinion, does that in any
way often drive the creation or the--or the condition for
radicalization?
Secretary Mattis. I understand, Senator. It certainly
could. I assure you that what we are trying to do is to keep
that from happening, those very things. And in this case, the
United Nations-recognized government in Yemen is fighting
inside a civil war there to try to restore that government. And
if we do not get it restored, then that will set the conditions
for the very kind of growth of terrorist groups that you have
mentioned.
Senator Booker. In Somalia, the language of your current
notification of June 27th says, ``United States forces also
advise, assist, and now accompany regional forces.'' Is that a
change that means that we could be accompanying regional
forces, means a potential combat role for troops in Somalia?
Secretary Mattis. Yes, sir. However, our mission there is
still to train, and advise, and assist them by accompanying
them how to carry out their own security. We are not taking
over the fighting from the Somalia or the Africa Union Forces,
AU Forces.
Senator Booker. So, I have run out of time. I just want to
say there is a whole bunch more questions on a lot of the
activities in Africa that I would love to get answers to, Mr.
Chairman. I will also say that it strains my understanding of
what an authorization for the use of military force--I do not
want to tell you what I was doing 16 years ago. [Laughter.]
Senator Booker. But it really strains me----
The Chairman. I am sure we do not want to hear it.
Senator Booker. Okay. [Laughter.]
Senator Booker [continuing]. It strains me that this idea
that somehow that authorization is being used, I do not care if
it is Indonesia, where there is a terrorist activity in the
Philippines, Niger, Somalia--I can go through--that we are
still relying for all of these activities. There has been no
objective, in my opinion, of a conversation had enough to see
if we are really achieving U.S. aims or engaging in a way that
is making this world a much more complex place. And I really do
agree with a lot of my colleagues, that we should be having
this debate openly and more in Congress.
The Chairman. Thank you so much. Senator Barrasso.
Senator Barrasso. Thank you, Mr. Chairman. Secretary
Mattis, as we were discussing, you have just gotten back from
Korea, the--just right before this time today. You were at the
DMZ, and you said, ``North Korea has accelerated the threat
that it poses to its neighbors in the world through its illegal
and unnecessary missile and nuclear weapons program.''
Well, today North Korea announced that it is going to be
launching more ``satellites'' into space, and I am just
wondering if these satellite launches are simply just another
way for North Korea to test ballistic missiles under the guise
now of a space program.
Secretary Mattis. The application of technology is by and
large the same, sir.
Senator Barrasso. Secretary Tillerson, I want to switch a
little bit to what I see happening in terms of recent
confrontations between the government of Iraq and the Kurdistan
regional government. I am very concerned about the Christians
and the minority communities in the disputed territories that
are being impacted by this. There have been recent media
reports of 700 to a thousand Christian families forced to flee
their homes in Telasofa, a Christian town about 19 miles north
of Mosul. Many of these Iraqi Christians recently just were
able to return to their home, to their villages after ISIS had
forced them out of the area.
So, could you just spend a little time explaining what are
you hearing from Christian leaders in their--in these
communities and what the U.S. is doing to ensure that Christian
and other vulnerable minorities are being protected?
Secretary Tillerson. Senator, the good news is they are
trying to get back to their homes, their villages, their
traditional homes that they fled when ISIS entered the area.
And many of their villages have been spared because the
fighting did not occur there. We have been in direct contact
with Christian leaders in those communities who are concerned
that this conflict between Kurdish Peshmerga forces and Iraqi
Central Government forces not be fought out in their villages,
and as a result, they have pulled their forces out.
Prime Minister Abadi has ensured that his forces stay out
of those villages, and I think, to my knowledge, the Kurdish
have pulled out of those villages as well. So, we have direct
engagement with local leaders of those communities and
Christian leaders that are trying to bring those populations
back.
Senator Barrasso. Thank you. Secretary Mattis, earlier this
month there were violent clashes between the Iraqi Security
Forces and the Kurdish Peshmerga in Northern Iraq. The media
reports indicated that the Iraqi government had moved forces
into the disputed areas and the region of Kurdistan. So, I am
wondering what impact does the fighting have on our efforts of
the U.S.-led international coalition against ISIS in terms of
the ability to move military equipment and supplies to allied
forces in Iraq and in Syria?
Secretary Mattis. Senator, the fighting has disrupted and
delayed some of those movements of our equipment, logistics
support, ammunition, for example. But I would point out that
the Iraqi forces moved into areas short of the 2004 green line.
And as a result, although there were some firefights along
there, Secretary Tillerson has been engaged diplomatically. We
always lead diplomatically on all of our efforts, and those
have been successful. And Prime Minister Abadi has, in effect,
been able to hold things under control, make certain none of
these militias are creating more problems as the Kurds sort out
their political situation in Erbil.
Senator Barrasso. Thank you. And in terms of moving first
diplomatically, if I could Secretary Tillerson, turn to
Pakistan. August 21st, President Trump gave a primetime address
to announce his strategy for Afghanistan. He said a pillar of
that strategy was, as he said, ``to change the approach in how
to deal with Pakistan.'' You briefly discussed this issue while
you were traveling in the region last week. You said that you
have given the Pakistanis, I think, ``certain expectations we
have of their government.'' And you went on to say that you
were ``attempting to put in place a mechanism of cooperation
through information sharing and action to be taken to begin to
deny these organizations the ability to launch attacks.''
So, could you talk a little bit about what is the change to
approach to Pakistan and maybe some of the expectations that
you have articulated for the Pakistani government that you
could share with the committee in terms of what this
cooperation is going to look like?
Secretary Tillerson. Well, I can share some broad contours,
and if there is an interest in more detail, we might need to do
that in a closed hearing. But the conversation with the
Pakistani government is for them to recognize that they will be
one of the greatest beneficiaries of a successful peace process
in Afghanistan. Pakistan lives with two very unstable borders,
one with Afghanistan and one with India. And our message to
them is you have to begin to create greater stability inside
your country, and that means denying safe haven to any of these
organizations that launch attacks from your territory.
So, we are going to enter into an effort to have greater
sharing of certain intelligence information. The Pakistanis
have indicated they--if we provide the information, they will
act. We are going to have to test that. We will give them an
opportunity to do so.
And so, what will change is that Pakistan will find it in
their interest to begin to disassociate these longstanding
relationships that have developed over time with certain
terrorist organizations--the Haqqani Network, the Taliban--
inside of Pakistan, which may have served their purpose for
stability once upon a time, but they no longer serve that
purpose. And it is up to Pakistan, I think, to think about
their longer-term stability and their future by changing that
relationship with these organizations.
Senator Barrasso. Okay. Thank you. Thank you very much. I
am very grateful for your leadership and your service. Thank
you, Mr. Chairman.
The Chairman. Thank you very much. Senator Shaheen.
Senator Shaheen. Thank you, Mr. Chairman, and thank you,
Secretary Tillerson and Secretary Mattis, for being here, and
for your service and your stamina, frankly, that we are still
here.
Over the past several years, as has been pointed out in
this discussion, the range of threats that we face from
terrorist groups and state actors has become increasingly
diverse, fragmented, and geographically expansive. And
militants that we defeat in one country have spread their
ideology and violence to other areas. Similarly, state actors,
like Iran and Russia, are increasingly expanding their reach
beyond their borders, particularly in the Middle East and
Africa, where our troops are present.
So, I am concerned, as many on this committee are, that
without an adequate understanding of the parameters that the
administration is using to justify the use of force, that our
strategies will remain ambiguous, and that our troops will have
few limits to where they will be asked to go and what they will
be asked to do.
And I have to say that I believe in the importance of U.S.
engagement in the world, so I am not an isolationist. I do not
think we should withdraw from everywhere. But I want to make
sure, as Senator Booker said, that we are actually achieving
the aims that we set out to achieve when we put troops in a
particular area. And, Secretary Tillerson, as you point out,
the American people and our soldiers have a right to know where
they are being asked to go, what they are being asked to do,
and what the expectations are, and what the end game is.
And I think one of the places where it is not at all clear
to me what the end game is and that we have a strategy for that
end game, is in Syria, which is--you know, the conflict there
is one of the things that has allowed terrorist groups and ISIS
to metastasize in the way that they have. So, as we look at the
liberation of Raqqa, what is our end game for fighting ISIS
along the Middle Euphrates River? Do we intend to continue down
the Euphrates to Mayadin? Will the Assad regime or the Russians
do that? It is not at all clear, and we have not just the
terrorists that we are fighting there, but we also have those
state actors--Russia, Syria, Iran--who are playing a role that
is complicating the situation.
So, I guess this is for you, Secretary Mattis.
Secretary Mattis. Senator, it is the most complex
battlefield I think I have ever experienced. I would tell you
right now that, again, our operational aspects are by, with,
and through partnered or allied forces. That is why you see us
helping others learn how to fight or putting our people, in
this case in Syria, in a position to resupply them. Basically
we, I believe, lost one soldier killed taking Raqqa, and the
Kurds lost over 600 killed. You see it written in the grimmest
possible statistic.
What we will do is knowing they have moved their external
operations elements down toward Mayadin, as we gather strength
from the Arab tribes, we certainly will continue to move
against ISIS--move against ISIS because we--this thing is not
over until it is over. At the same time, the regime, the pro-
regime forces--I am talking about Iranian-supported elements--
Lebanese Hezbollah--and the Russians forces are moving from
Darzar in the same direction. Again, we do de-confliction, as
you know with them, at several levels.
Senator Shaheen. Right, understand.
Secretary Mattis. So, we will continue to move against
them. The Iraqis will move against them from their side of the
border. Even as this Kurdish referendum issue has been a
distraction further north, they are continuing to move. So, we
are still on the move. We are still de-conflicting, and
Secretary Tillerson is coordinating the larger issue of the end
state diplomatically.
Senator Shaheen. And so, is the expectation as we drive
ISIS out, that we will leave that remaining sections of Syria
to Assad, to the Russians, to Iran? Because it is not at all
clear that once we are gone, what will happen in those
territories?
Secretary Tillerson. Well, Senator, that is where our
diplomatic efforts are underway to create these de-escalation
zones. That is, areas are liberated. We then de-escalate the
conflict so that the civil war does not re-erupt. And in order
for that to happen, that means that the regime hold its
positions and not try to overrun or retake areas that were
liberated by others.
We have successfully put one de-escalation zone in the
southwest of Syria in conjunction with Jordan and Russia. That
de-escalation zone went into effect January the 9th. There have
been no aerial bombings in that area since, and we have had
success moving Iranian presence as well as Lebanese Hezbollah
presence out of those areas.
We are working to create additional de-escalation zones,
and these are not demarcation zones. These are not intended to
divide the country. They are merely intended to de-escalate,
de-conflict, and, in effect, get ceasefires in place so that we
then can get representatives to the Geneva process pursuant to
U.N. Security Council Resolution 2254, which has a very
prescribed process for how Syria will work its way towards new
elections over the next few years.
Senator Shaheen. Well, sorry to interrupt. I would like to
pursue this discussion in a classified setting. But I did want
to follow up on a statement that you made, Secretary Mattis,
where you said that we always lead with diplomacy. I would to
like to think that we always lead with diplomacy, but given the
current reorganization at the State Department, the current
cuts to the budget at the State Department that were requested
by this administration, the number of personnel, the number--
the amount of years of expertise of people who have left the
State Department, I guess I question whether, in fact, we are
leading with diplomacy and putting our best foot forward.
So, I do not know, Mr. Secretary. Can you explain to me why
this is a good time to let go of those personnel, to cut back
on the budget of the State Department?
Secretary Tillerson. We have let no one go, Senator. Some
people have retired. Some people have chosen to leave and
pursue other interests on their own. There have been no
layoffs. There have been no terminations. And, quite frankly,
Senator, I have to speak on behalf of the professional men and
women at the State Department--Foreign Service officers and
others--who have many, many years of experience that have
stepped up to the open positions that are still open because we
are waiting for confirmations, and are doing a superb job
representing the American people's interests.
And our diplomacy has not stopped. It is not hampered. It
is not slowed. These people are engaged directly with our
counterparts and leading this diplomatic effort. I am proud of
them. They are doing a great job, and we need some more help.
We need some leadership help. But we have not depleted our
ranks of expertise by any stretch of the imagination, and,
quite frankly, on their behalf I want to defend their
expertise, to you.
Senator Shaheen. Well, I certainly was not attacking the
men and women of the State Department. I think they do an
excellent job. And my concern is that we have seen many people
with a lot of expertise who have left the Department because
they are concerned about the direction there, and that is what
I wanted to speak to. But I share your support for the work
that they are doing.
Thank you, Mr. Chairman.
The Chairman. Thank you. Senator Portman.
Senator Portman. Thank you, Mr. Chairman. So, Secretary
Mattis, Secretary Tillerson, in an increasingly dangerous and
volatile world, I am glad you are where you are. And we have
got a lot of challenges, and I think the current AUMF covers
the fight against ISIS, even though as was stated earlier, 15
years ago there was no ISIS as such.
However, I also believe having a new AUMF has benefits. I
think it can be worthwhile in providing greater clarity and
guidance, including to our military commanders and to your
diplomats, Mr. Secretary. I think it can help you establish a
firmer base of political support for overseas operations. I
think it can send a clear signal of resolve from the United
States Congress as well as the administration to friend and foe
alike. And so, I am interested, but I am only interested in the
right AUMF. It has got to be helpful in empowering those who
are undertaking this incredibly important task during a time
with such danger.
I guess my question to you would be, I understand looking
at your testimony and having been here earlier, that you have
laid out what you think the guiding principles ought to be. But
are there any authorities or guidance that you now lack that a
new AUMF could provide?
Secretary Mattis. On the military side, Senator, I would
just--I would say no as it stands right now. And, again, when I
spoke, I just thought that we need to incorporate those factors
that I brought up. I am not telling the Senate how to do its
business. I just owe you my best military advice. How you deal
with that, I salute, and we will--we will carry out our orders
to the Commander-in-Chief.
But I think those factors of conditions-based and the
timelines--anything that we do, we have to recognize has an
impact on both our operations and on the enemy's view, and we
just have to take that into account. That is a reality. And I
am not saying that there is some prescriptive one way to solve
these.
Senator Portman. Secretary, any guidance or any authorities
you lack?
Secretary Tillerson. I do not think there are any
authorities we lack. As we indicated, we think the current
authorizations we have are sufficient to allow us to pursue
this enemy wherever they choose to want to fight us. And,
again, I think, you know, this is all about fighting them over
there so they do not come here to attack us on the homeland
again.
Senator Portman. And the threat has evolved, and it will
continue to evolve. And geographic limitations, as an example,
would make no sense, I assume, given the fact that we have seen
a metastasizing of the threat through countries we might never
have imagined would be part of now ISIS or former al-Qaeda.
Let me ask you a broader question, and this is a tough one.
But I have, as is true with many of my colleagues, been
frustrated as you have with regard to Syria. You called it a
very complex battlefield, and I know the President and our
administration has focused on defeating ISIS as is appropriate.
But there is a broader issue here, which is, you know, how did
ISIS evolve in the first place, and how do we deal with the
underlying problems and the chaos in that region, the
instability that fueled the rise of ISIS in the first place.
And I guess my question to you is, let us say we continue
to be successful with ISIS. You talked about Raqqa earlier, and
you talked about some of the military success we have on the
ground. As we do that, I would think our coalition partners and
us are going to see the limitations of a military approach
because you will continue to have sectarian divisions,
competing interests, a worsening humanitarian crisis. And I
just want to be sure if we are doing a new AUMF we cover that.
In other words, this is not just to give you the authority to
use military force, but it is really to get at the underlying
causes so that we do not have to go back again.
I guess, Secretary Tillerson, to ask you first, as an
example, do you think there can be a lasting peace there as
long as Assad is in power, and does the current AUMF give you
the ability, Secretary Mattis, to be able to deal with that
issue. If you--if you think that has to be resolved, that might
be one example.
Secretary Tillerson. Well, the current AUMF only authorizes
our fight against ISIS in Syria, as I indicated in my remarks.
We are not there to fight the regime. There is no authority
beyond the fight against ISIS. Therefore, we have to pursue a
future Syria that is kept whole and intact, and a process which
the--which the U.N. Security Council process does provide a
process by which, in our view, the Assad regime will step down
from power.
How that occurs will be part of that process, and that is
what we have continued to indicate. That is a view that is
widely held by others in the region as well. It is a view that
is widely held by our allies in Europe, and broadly by the
coalition. So, what we want to do is create conditions so
Geneva has an opportunity to succeed.
Senator Portman. And, again, how does this play into the
potential new AUMF, and, Secretary Mattis, you might focus, if
you would, on the military operation side of this thing, in
order to secure the peace after ISIS is defeated if we are
successful. What would you like to see in an AUMF that would be
broader and give you the ability to do what has to be done?
Secretary Mattis. Sir, I think the AUMF has to address the
two basic brands of terrorism that we have seen strike at
civilized people everywhere, and to determine what it takes to
define that problem in sufficient detail, and to a point that
here in the Congress we are in agreement, if you go forward
along those lines, so that we speak with one voice on the
threat. If we spend time basically defining the threat in
sufficient rigor, then I think much of the response to that
threat will be understandable and supportable across the
political spectrum.
Senator Portman. Okay. And, again, I know this is a
sensitive topic, but do you think a broader AUMF is needed to
deal with the underlying issues, not just the immediate
elimination of the ISIS threat in Syria, but some of the
factors that have led to the rise of ISIS?
Secretary Mattis. It could do that, Senator. Properly
constructed, it could do that.
Secretary Tillerson. I think it is a question of after we
are successful as we are having success now, how do you
stabilize these areas. And do we as--is there any military role
for that stabilization? I am not--I would have to think about
it further as to whether it is a military role or whether it is
really we equip, which is what we are doing today, we equip
local capacity to maintain the security of their communities.
And as I said, and even as Prime Minister Abadi noted,
armies are not good at police--serving in a police role. They
are not trained for that. So, we have to train security forces
that are able to provide a policing function to maintain
stability and security for these communities, which helps tamp
down the conditions that give rise then to this violent
extremism again.
Senator Portman. No question. I guess I am just--I am just
again--I am out of time, and I appreciate your indulgence
allowing me to go a little over, Mr. Chairman. But I do think
this is a discussion that we can have as part of this potential
new AUMF is, you know, what is the broader strategy here that
we ought to be pursuing to avoiding getting back in the fight
again.
Thank you, Mr. Chairman.
The Chairman. Thank you. And before I turn to Senator
Cardin for his closing comment, on that note, I mean, you guys,
I just want to be clear--people are tuned into this. You are
not asking for an authority to go against Assad.
Secretary Tillerson. No, Senator.
The Chairman. And if you attempt----
Secretary Mattis. No, sir.
The Chairman [continuing]. If you felt you needed to go
against Assad as part of the broader picture that Senator
Portman was bringing up, you would come to Congress because we
would then be going against a country. Is that correct?
Secretary Tillerson. That is correct.
The Chairman. Senator Cardin.
Senator Cardin. Mr. Chairman, I first want to thank both of
our witnesses for their service to our country and their
participation in this hearing. There may be some disagreements
about what the AUMF covers currently and what Congress should
include in a more up-to-date AUMF. That is a healthy debate
that we are having. There is no debate, as the chairman has
pointed out, about our resolve to go after terrorists who are
attacking our interests and our allies, and we want you to have
the ability to root them out and destroy them. So, there is no
disagreement about that.
I just would sort of conclude on this, and that is I think
there is a real willingness of all of us to try to work
together to modernize the AUMF. So, we are going to try--we are
going to try to be able to do that. But I particularly want to
thank you for the direct answers to our questions. I think you
were very clear in responding to the questions that have been
asked by the members of this committee, and that is very
encouraging because this hearing, I think, has been extremely
helpful to us to try to sort out how we can best represent the
national security interests of this country.
The Chairman. I really want to thank you both for coming,
for your service to our country, for the concrete answers that
you gave. Obviously, the next logical step is for us to mark up
an AUMF, and I would just ask while you are here that you agree
to work with us promptly, and the work period is short. We have
got other issues to deal with, and that you would both use your
resources to respond quickly to questions we might have legally
and otherwise relative to an AUMF.
Secretary Tillerson. Will do.
Secretary Mattis. Absolutely.
The Chairman. Yeah. Again, thank you so much. There will be
additional questions that will be--we will take those through
the close of business Wednesday. To the extent you can answer
those promptly considering the other duties you have, we would
appreciate it.
Again, I cannot thank you enough for your service and for
the time you spent with us today.
And with that, the meeting is adjourned.
[Whereupon, at 8:15 p.m., the hearing was adjourned.]
----------
Additional Material Submitted for the Record
Statement for the Record Submitted by Human Rights First
introduction
The recent deaths of 4 U.S. service members in Niger have prompted
members of Congress to give renewed attention to the scope of war
authorities that govern U.S. counterterrorism military operations
abroad.\1\ Within days of the 9/11 attacks, Congress passed an
authorization for use of military force (``AUMF'') against those who
``planned, authorized, committed, or aided the terrorist attacks that
occurred on September 11, 2001 or harbored such organizations or
persons.'' \2\ This language is widely understood as authorizing force
against al-Qaeda, who planned and committed the attacks on the United
States on 9/11, and the Afghan Taliban, who had harbored al-Qaeda
before and after the attacks.
---------------------------------------------------------------------------
\1\ Connor O'Brien, Niger Attack Fuels New Push for War Vote,
Politico, Oct. 20, 2017.
\2\T3AAuthorization for Use of Military Force, Pub. L. No.
107-40, 115 Stat. 224, 224 (2001) (codified at 50U.S.C. Sec. 1541
note),
---------------------------------------------------------------------------
The 2001 AUMF is also expressly limited to using force to prevent
future acts of terrorism against the United States by the entities
responsible for 9/11, not their associated forces, successor entities,
or unaffiliated terrorist organizations. Indeed, Congress expressly
rejected the executive branch's request for broad and open-ended
authority to use military force against other terrorist groups without
specific authorization from Congress.\3\
---------------------------------------------------------------------------
\3\ See David Abramowitz, The President, the Congress, and the Use
of Force: Legal and Political Considerations in Authorizing the Use of
Force Against International Terrorism, 43 Harv. Int'l L.J. 71 (2002);
Gregory D. Johnsen, 60 Words And A War Without End: The Untold Story Of
The Most Dangerous Sentence In U.S. History, January 16, 2014,
Buzzfeed.
---------------------------------------------------------------------------
Yet for nearly 16 years, longer than any war in the nation's
history, the executive branch has been using the 2001 AUMF as the
primary legal basis\4\ for military operations against an array of
terrorist organizations in at least seven different countries around
the world.\5\ Some of these groups, like ISIS and al Shabaab, not only
played no role in the 9/11 attacks, but did not even exist at the time
Congress authorized the use of force in 2001.\6\
---------------------------------------------------------------------------
\4\ The executive branch has also relied on the 2002 Iraq AUMF to
justify its counter-ISIL campaign. See e.g., Stephen Preston, The Legal
Framework for the United States' Use of Military Force Since 9/11,
Remarks at the American Society for International Law, Washington, DC,
April 10, 2015
\5\ Report on the Legal and Policy Frameworks Guiding the United
States' Use of Military Force and Related Operations, December 2016.
\6\ It is worth recalling that in 2014 when the claim that the 2001
AUMF applied to ISIS was first made, national security law experts from
both sides of the aisle were astounded. See e.g. Robert Chesney, The
2001 AUMF: From Associated Forces to (Disassociated) Successor Forces,
Lawfare Blog, September 10, 2014. Before the announcement, law
professor Ryan Goodman had noted the ``remarkable consensus of
opinion'' among experts ``that ISIS is not covered by the 2001 AUMF.''
See Ryan Goodman, The President Has No Congressional Authorization to
Use Force against ISIS in Iraq, June 19, 2014. National security expert
Ben Wittes commented that extending the 2001 AUMF to ISIS ``is not a
stable or sustainable reading of the law.'' See Ben Wittes, Not Asking
the Girl to Dance, September 10, 2014. And former State Department
legal advisor Harold Hongju Koh considered a new AUMF to be the only
``lawful way to fight the Islamic State'' and prevent a
``constitutional battle over the president's prerogative to conduct
unilateral war.'' See Harold Hongju Koh, The Lawful Way to Fight the
Islamic State, August 29, 2014.
---------------------------------------------------------------------------
The executive branch's continued reliance on the 2001 AUMF for
military operations far beyond what Congress originally authorized
undermines Congress' important constitutional role as the branch
responsible for the decision to go to war. As Senator Todd Young noted
during a keynote speech at the Heritage Foundation in May of this year,
the founders entrusted Congress with the decision to go to war to
``avoid foolish, hasty, unnecessary, and perpetual wars that tend to
accrue debt and erode liberty.'' \7\ The lack of any sunset provision
or reporting requirements in the 2001 AUMF also restricts the ability
of Congress to conduct meaningful oversight over military operations
and the foreign affairs of the United States.\8\
---------------------------------------------------------------------------
\7\ Is it Time for Congress to Pass an ISIS-Specific AUMF?, The
Heritage Foundation, May 1, 2017.
\8\ Recent entanglements with Iranian and Russia-backed pro-Assad
forces in Syria, where the U.S. is fighting ISIS, demonstrate just how
far the 2001 AUMF has been stretched. See Kate Brannen et al., White
House Officials Push for Widening War in Syria Over Pentagon
Objections, Foreign Policy, June 16, 2017.
---------------------------------------------------------------------------
This untenable state of affairs has other dangerous consequences as
well. Continued reliance on outdated and ill-defined war authorizations
that blur the line between war and peace undermine national security,
U.S. leadership in the world, and human rights both at home and abroad.
ill-defined war authorities undermine national security, u.s. global
leadership, and human rights at home and abroad.
War authorizations confer extraordinary powers on the president,
powers that outside of war would amount to egregious violations of
human rights. Wartime rules were designed for the unique circumstances
of armed conflict between opposing armed forces. As a result, the laws
of war sometimes permit killing as a first resort, detention without
charge or trial, and the use of military tribunals-actions that are
otherwise contrary to basic American values and human rights.
The United States has long been a global leader on human rights,
leveraging its example to influence other nations to improve their own
human rights records. The United States has rightly criticized other
nations for improperly invoking wartime authorities in the name of
national security. But the ability of the United States to level this
criticism effectively demands that it demonstrate that its own use of
wartime authorities is lawful and appropriate. Continued reliance on
ill-defined authorities or questionable legal theories that enable the
use of wartime authorities outside the lawful boundaries of war not
only harms U.S. leadership on human rights, but U.S. national security
as well.
The current status quo puts the United States at odds with allied
nations, counterterrorism partners on the ground, and local populations
whose help is critical to effective counterterrorism. As a result of
doubts about the lawfulness or legitimacy ofU.S. actions or policies,
allies and partners withhold critical cooperation, consent, and
intelligence information. Local populations turn against the United
States, fueling terrorist recruitment and propaganda and increasing
attacks against U.S. and allied forces. Assuring U.S. allies,
counterterrorism partners, and local populations that the United States
respects human rights and the rule of law-including important limits on
where, when, and against whom wartime authorities may be employed-will
improve cooperation, undermine terrorist recruitment and propaganda,
and reduce attacks against U.S. forces.
Setting the country on a new course is also needed to ensure that
the United States does not set dangerous precedents that are
detrimental to its long-term interests. The policies, practices, and
legal justifications used by the United States today will be used by
other states tomorrow. Expansive interpretations of a state's authority
to use wartime powers-such as lethal force as a first resort, military
tribunals, and detention without charge or trial-embolden other states
to use such practices. Constraining the use of these exceptional
authorities to circumstances meeting the legal threshold for armed
conflict and to where their use is militarily necessary, will provide a
model for other states on how to use wartime authorities lawfully,
strategically, and responsibly.
Not only is it unlawful to apply wartime authorities to address
terrorist threats off the battlefield, it is not necessary. The United
States has a robust array of diplomatic, law enforcement, and
intelligence resources to mitigate the threat of terrorism. And
ultimately, partner nations in which terrorist threats reside must take
the lead to address those threats head on, and effectively, with the
support of the United States. The United States also retains the
authority to act in self-defense, including through the use of military
force, when there is an imminent threat that cannot be addressed
through other means. Wartime authorities such as an AUMF are not
necessary to take such action.
By tailoring congressional war authorizations to the conflicts to
which they are intended to apply and conducting regular oversight of
war, Congress provides a crucial check on the executive branch,
ensuring that presidents do not stretch wartime killing, detention, and
trial authorities beyond the bounds of armed conflicts authorized by
Congress.
recommendations for drafting authorizations for use of military force
Any new war authorization passed by Congress should be clear,
specific, carefully tailored to the situation at hand, and aligned with
the international legal obligations of the United States to respect
state sovereignty, human rights, and the boundaries of wartime rules.
Careful drafting is critical to prevent any new AUMF from being
stretched to justify wars not authorized by Congress, to ensure ongoing
congressional engagement and an informed public as the conflict
proceeds, and to prevent the authorization from being used in ways that
undermine human rights or U.S. national security.
To meet this standard, Human Rights First recommends that any new
authorization for use of military force include the following elements:
\9\
---------------------------------------------------------------------------
\9\ These elements have been recommended and endorsed by numerous
national security experts from across the political spectrum. See e.g.,
Goldsmith et al., Five Principles That Should Govern Any U.S.
Authorization of Force, Washington Post. These elements have also
gained the support of a coalition of human rights, civil liberties, and
faith groups. See ``Re: Authorizing the Use of Military Force.'' Letter
to Senator Bob Corker and Senator Ben Cardin. June 19, 2017.
---------------------------------------------------------------------------
Specify the enemy and the mission objectives:
Any new AUMF should clearly specify the entity against which force
is being authorized, the mission objectives or purpose for authorizing
force, and where force may be used. These elements prevent the
executive branch from overstepping Congress's intent, discourage
mission creep, and ensure that the authorization will not be used to
justify unlawful or perpetual armed conflict. Authorizing the president
to use force against unknown future enemies,\10\ for undefined
purposes, or in unknown locations is an unconstitutional delegation of
Congress's power to declare war. It is also unnecessary for national
security. The president has authority to defend the nation from sudden
attacks under Article II of the Constitution and Article 51 of the U.N.
Charter. Moreover, Congress can authorize force against new threats
when and if such threats arise.
---------------------------------------------------------------------------
\10\ Should Congress to choose to authorize force against the
associated forces of a group named in the authorization, it should
carefully define the term associated forces in a manner that complies
with the laws of war. Congress should not authorize force against so-
called ``successor entities.'' See Human Rights First, Authorizing the
Use of Force Against ISIS: How to Define ``Associated Forces''.
---------------------------------------------------------------------------
Reporting requirements:
Regular and detailed reporting helps promote democratic
accountability, maintain legitimacy both at home and abroad, ensure
compliance with domestic and international law and enables Congress to
fulfill its critical oversight functions. To properly keep Congress and
the public informed of the scope and progress of the mission, the
president should provide regular reports detailing at minimum: the
entities the administration believes are covered under the new AUMF,
the factual and legal basis for including these entities in the AUMF,
the number of civilian and military personnel killed, and the legal
analysis the administration is relying on for undertaking new actions.
This information is critical for proper public transparency and
engagement and enabling Congress to exercise its constitutional
oversight responsibilities over a continuing armed conflict.
Compliance with U.S. obligations under international law:
For over 200 years the Supreme Court has held that domestic
statutes must not be interpreted to conflict with U.S. obligations
under international law if there is any other plausible
interpretation.\11\ An explicit statement in an AUMF that operations
must only be carried out in compliance with U.S. international legal
obligations would bolster global confidence in the United States as a
national that complies with the rule of law and is committed to its
obligations to respect state sovereignty under the U.N. Charter and
customary international law, treaty and customary law-based human
rights law, and the requirements of the law of armed conflict, where
applicable. Such a statement would enhance the legitimacy of the
mission, aid the effort to win hearts and minds, and encourage
cooperation from allies, and partners.
---------------------------------------------------------------------------
\11\ Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64 (1804).
---------------------------------------------------------------------------
Supersession/sole source of authority provision:
Any new AUMF should include language that makes it clear that it is
the sole source of statutory authority to use force against the named
enemy in the authorization. This is important to avoid overlap,
confusion, or loopholes that could be used to evade the requirements of
either an existing or new AUMF. For example, as the executive branch
has claimed that the 2001 AUMF and 2002 Iraq AUMF already provide
authority to use force against ISIS, a new ISIS AUMF should either
repeal the 2001 AUMF and 2002 Iraq AUMF, or include language that makes
it clear that the new ISIS AUMF is the sole source of statutory
authority for using force against ISIS.\12\ Failing to include such
clarifying language or to repeal old AUMFs opens the door for the
executive branch to rely on the 2001 AUMF to avoid the requirements of
the new ISIS AUMF.
---------------------------------------------------------------------------
\12\ The Obama administration claimed that the 2001 and 2002 AUMFs
already authorize force against ISIS. Failing to clarify that a new
ISIS AUMF supersedes these authorizations confuses rather than
clarifies the administration's powers. See Jen Daskal, Why Sunset and
Supersession Provisions Are Both Needed in an Anti-ISIL AUMF, Just
Security, March 18, 2015.
---------------------------------------------------------------------------
Sunset clause:
Sunset provisions have been included in nearly a third of prior
AUMFs.\13\ They act as a forcing mechanism that guarantees continued
congressional oversight and approval as the conflict evolves, providing
a safeguard against perpetual armed conflict or executive branch
overreach. Sunsets require Congress and the administration to come
together to reexamine the AUMF at a future date in light of current
conditions, and if necessary, reauthorize and/or refine the legislation
to suit those new conditions. As former general counsel for the CIA and
Department of Defense Stephen Preston has explained, requiring Congress
to reauthorize an ongoing conflict does not signal to the enemy that
the United States plans to walk away from the fight at a set date.\14\
Rather, heexplained, a properly structured reauthorization provision
with a mechanism for renewing the authority in advance of the sunset
would signal to our partners and adversaries that the United States is
committed to its democratic institutions and will fight the fight for
as long as it takes.
---------------------------------------------------------------------------
\13\ Ending the Endless War, National Security Network, February
2015.
\14\ Is it Time for Congress to Pass an ISIS-Specific AUMF?, The
Heritage Foundation, May 1, 2017.
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conclusion
The founders of this nation recognized the profound significance of
going to war and wisely assigned this power to Congress. If and when
Congress passes a new war authorization, that authorization should
reflect the hard lessons of the last decade and a half by including the
above elements. If Congress cannot reach agreement on an authorization
that meets these requirements, it should not pass one.
__________
Responses to Additional Questions for the Record Submitted to
Hon. Rex Tillerson, Secretary of State, by Senator Bob Corker
Question 1. If Congress decided to repeal the 2001 and 2002
Authorizations for Use of Military Force (AUMFs), and simultaneously
provide a replacement AUMF that authorizes the President to use all
necessary and appropriate force against the Taliban, al-Qaeda, ISIS,
and associated forces (appropriately defined):
What would be the legal consequences, and what other provisions of
law would be impacted? Please be as specific as possible.
Answer. The repeal of the 2001 and 2002 Authorizations for Use of
Military Force (AUMF), even if accompanied by a simultaneous
replacement statute, could cause unnecessary uncertainty to the
President's authority to use military force in the midst of ongoing
military operations.
With respect to the 2001 AUMF, all three branches of the U.S.
Government have affirmed the ongoing authority conferred by the 2001
AUMF and its application to al-Qaeda, to the Taliban, and to forces
associated with those two organizations within and outside Afghanistan.
Specifically, the Federal courts have issued rulings in the detention
context that affirmed the President's authority to detain individuals
who were part of, or substantially supported, Taliban or al-Qaeda
forces or associated forces that are engaged in hostilities against the
United States or its Coalition partners. Congress has also affirmed the
President's detention authority under the 2001 AUMF in the National
Defense Authorization Act for Fiscal Year 2012.
Repeal of the 2001 AUMF could be seen as reopening settled legal
questions regarding the President's detention authority. Such repeal
would likely lead to renewed litigation by detainees at Guantanamo Bay
seeking to challenge the legal basis for their continued detention
beyond the date of the repeal of the statute under which they are
currently being held notwithstanding the continuation of hostilities
between the United States and the Taliban, al-Qaeda, and associated
forces, including against ISIS.
The 2002 AUMF provides authority ``to defend the national security
of the United States against the continuing threat posed by Iraq.'' The
repeal of the 2002 AUMF could call into question the President's
authority to use military force to assist the Government of Iraq both
in the fight against ISIS and in stabilizing Iraq following the
destruction of ISIS's so-called caliphate.
Question 2. How could Congress mitigate any negative legal
consequences in a replacement AUMF and ensure a smooth transition to
the new authority, including with respect to legacy detainees? If
possible, please provide specific language.
Answer. Ensuring that there are no negative consequences is the
reason why this administration urged Congress not to repeal the 2001
and 2002 AUMFs. Therefore, at a minimum, any subsequent AUMF must not
call into question the legal basis for the continued detention of
individuals currently held at Guantanamo Bay. For example, the
administration would seek language that avoids reopening settled legal
questions relating to the President's authority to continue to detain
individuals at Guantanamo Bay, ``who were part of, or substantially
supported, Taliban or al-Qaeda forces or associated forces that are
engaged in hostilities against the United States or its Coalition
partners, including any person who has committed a belligerent act, or
has directly supported hostilities, in aid of such enemy armed
forces.''
The administration is prepared to review any proposed language that
the committee might develop.
Question 3. In the alternative, if Congress decided to repeal the
2002 AUMF and amend the 2001 AUMF to provide fresh authorization for
the use of military force against the Taliban, al-Qaeda, ISIS, and
associated forces (appropriately defined):
What would be the legal consequences, and what other provisions of
law would be impacted? Please be as specific as possible.
Answer. The 2002 AUMF provides authority ``to defend the national
security of the United States against the continuing threat posed by
Iraq.'' Any repeal of the 2002 AUMF could call into question the
President's authority to use military force to assist the Government of
Iraq in military operations against ISIS and in stabilizing Iraq
following the destruction of ISIS's so-called caliphate.The
administration would need to review the specific language of any
proposed legislation.
Question 4. How could Congress mitigate any negative legal
consequences with an amended 2001 AUMF and ensure a smooth transition,
including with respect to legacy detainees? If possible, please provide
specific language.
Answer. Ensuring that there are no negative consequences is the
reason why this administration urged Congress not to repeal the 2001
and 2002 AUMFs. Therefore, at a minimum, any subsequent AUMF must not
call into question the legal basis for the continued detention of
individuals currently held at Guantanamo Bay. For example, the
administration would seek language that avoids reopening settled legal
questions relating to the President's authority to continue to detain
individuals ``who were part of, or substantially supported, Taliban or
al-Qaeda forces or associated forces that are engaged in hostilities
against the United States or its Coalition partners, including any
person who has committed a belligerent act, or has directly supported
hostilities, in aid of such enemy armed forces.''
The administration is prepared to review any proposed language that
the committee might develop.
Question 5. In a letter to Senate leaders earlier this year, you
and Secretary Mattis expressed concern about the definition of
``associated persons or forces'' in S.J. Res. 43, which you stated is
``inconsistent with the standard applied by the Executive Branch and
which could result in unnecessary uncertainty regarding its scope.''
What is the ``standard applied by the Executive Branch'' to which
you referred in your letter?
Answer. To be considered an ``associated force'' of al-Qaeda or the
Taliban for purposes of the authority conferred by the 2001 AUMF, an
entity must satisfy two conditions. First, the entity must be an
organized, armed group that has entered the fight alongside al-Qaeda or
the Taliban. Second, the group must be a co-belligerent with al-Qaeda
or the Taliban in hostilities against the United States or its
Coalition partners.
Question 6. If the administration does not support the definition
of ``associated persons or forces'' in S.J. Res. 43, what definition
does the administration recommend for a new AUMF?
Answer. The administration would want to ensure that any statutory
definition of ``associated force'' is consistent with the standard
currently applied by the Executive Branch as described in the answer to
the previous question.
Question 7. Does your Department have any legal or policy concerns
with repealing the 2002 AUMF? If yes, please explain.
Answer. The 2002 AUMF provides authority ``to defend the national
security of the United States against the continuing threat posed by
Iraq.'' The repeal of the 2002 AUMF could call into question the
President's authority to use military force to assist the Government of
Iraq both in the fight against ISIS and in stabilizing Iraq following
the destruction of ISIS's so-called caliphate.
Question 8. Does your Department construe any of the following
provisions of existing law as an Authorization for Use of Military
Force? If yes to any, please specify and explain the interpretation:
a. Authorization of the Secretary of Defense to provide support for
friendly foreign countries (10 U.S.C. Sec. 331).
b. Authorization of the Secretary of Defense to support for foreign
forces, irregular forces, groups, or individuals engaged in
supporting or facilitating ongoing military operations by
United States special operations forces to combat terrorism (10
U.S.C. Sec. 127e).
c. Authorization of the Secretary of Defense 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 (10 U.S.C. Sec. 333):
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.
Answer. No, the administration does not interpret 10 U.S.C.
Sec. 331, Sec. 127e, or Sec. 333 to provide statutory authorization for
the use of military force.
__________
Responses to Additional Questions for the Record Submitted to
Hon. Rex Tillerson, Secretary of State, by Senator Benjamin L. Cardin
Question. Section 4(a) of the War Powers resolution requires that
in the absence of a declaration of war, in any case in which ``United
States Armed Forces are introduced (1) into hostilities or into
situations where imminent involvement in hostilities is clearly
indicated by the circumstances,'' the President must withdraw such
forces within 60 days unless Congress has declared war or otherwise
authorized their deployment. U.S. Forces in Niger are now, obviously,
in an area in which imminent involvement in hostilities is clearly
indicated by the circumstances of the attack on U.S. soldiers, and the
resulting death of four of them, in early October. Does the
administration now consider that the 60-day clock has begun, and if
not, what is the legal reasoning behind this conclusion?
Answer. Consistent with the War Powers Resolution, the President
previously reported the deployment of U.S. Armed Forces to Niger,
including in a report submitted to Congress on June 6, 2017. The report
of June 6, 2017, stated that there were approximately 645 U.S. military
personnel deployed to Niger in support of our African partners'
counterterrorism operations in the Lake Chad Basin Region. Since
submitting that report, the number of U.S. military personnel deployed
to Niger has fluctuated consistent with operational requirements.
The October 4 ambush of U.S. and Nigerien forces was a tragic but
isolated incident. It does not indicate imminent involvement of U.S.
forces in further hostilities. Additionally, our assessment is that an
ISIS group was responsible for that ambush. Operations against ISIS are
authorized by the 2001 AUMF so would not be subject to the termination
provision of the War Powers Resolution.
__________
Responses to Additional Questions for the Record Submitted to
Hon. Rex Tillerson, Secretary of State, by Senator Todd Young
Question. I note that you spoke with the Burmese Armed Forces
Commander-in-Chief on October 26 to discuss the Rohingya crisis. Can
you please provide an update on the administration's efforts related to
the situation in Burma?
Answer. This administration is undertaking significant efforts to
ensure the violence and suffering end immediately, in addition to
pursuing accountability for those responsible for human rights abuses.
Our most pressing objectives are achieving protection for all local
populations and meaningful, durable solutions for those who have been
displaced, including the creation of conditions that will allow those
displaced the chance to go home again voluntarily, in safety, and with
dignity.
As part of those efforts, I traveled to Burma on November 15, where
I met with high-level government officials, including State Counsellor
Aung San Suu Kyi and Commander-in-Chief Senior General Min Aung Hlaing,
and discussed ways forward on this crisis. While in Manila for the
ASEAN-related summits, I met with numerous counterparts from across the
region to coordinate efforts related to humanitarian assistance,
repatriation of refugees, and accountability for abuses committed
against members of communities in Rakhine State.
__________
Responses to Additional Questions for the Record Submitted to
Hon. Rex Tillerson, Secretary of State, by Senator Robert Menendez
Question 1. You were recently quoted as saying ``it's our view that
we do not believe there is a future for the Assad regime, the Assad
family.'' What implications does that have for U.S. policy in Syria?
Are we actively engaged in a political dialogue that would remove Assad
from power? With whom? How do you plan to promote this view with Russia
and Iran? Will the United States actively seek to remove Assad from
power? [If so] Under what authorities?
Answer. The United States believes a lasting peace in Syria
ultimately means a Syria without Bashar al-Assad. That said, we do not
seek the dissolution of the Syrian state, which would likely result in
further chaos, violence, and instability. Nor is it ultimately a U.S.
decision whether Assad stays or goes--that decision rests with the
Syrian people. We will work to ensure that the Syrian people get that
choice in a free and fair U.N.-supervised election.
Our priorities in Syria are defeating ISIS, countering malign
Iranian influence, and de-escalating the Syrian conflict to create the
necessary space for a political solution to the crisis. As part of our
efforts to de-escalate violence, we reached the July 9, 2017 southwest
ceasefire arrangement with Russia and Jordan, which is still largely
holding. The United States, Russia, and Jordan signed a Memorandum of
Principals in Amman on November 8, endorsed by Presidents Trump and
Putin in Vietnam on November 10. We hope this arrangement, and other
genuine efforts to de-escalate violence, will contribute to creating a
better environment to negotiate a permanent political solution to the
crisis.
As part of our diplomatic efforts, we are committed to the Geneva
process and support a credible, U.N.-led political process to resolve
the question of Syria's future. According to the U.N., it will host the
next round of Geneva talks at the end of November or beginning of
December, and we hope they will be another step towards implementing
U.N. Security Council Resolution (UNSCR) 2254 and ending this crisis.
Russia voted for UNSCR 2254, which explicitly requested that the
U.N. convene formal negotiations on a process for political transition
between the regime and the opposition. And per UNSCR 2254, the Syrian
parties were supposed to reach agreement on the shape of a transition
within six months. President Putin reiterated Russia's commitment to a
political transition and UNSCR 2254 in the joint statement our
countries released November 10. Though the Russians continue to declare
support for the efforts enshrined in UNSCR 2254, to date they have not
used their influence to bring Assad to the negotiating table. Russia is
concerned about terrorist threats emanating from Syria, which will
continue as long as Assad remains in power. He has caused too much
destruction in his country for Syria to return to or remain at peace
under his leadership.
Question 2. Sanctions are one of the most powerful diplomatic tools
we have, yet you have apparently eliminated the position of sanctions
coordinator at the State Department. By systematically undermining
crucial offices, are you pushing us into more inevitable conflicts?
Answer. Sanctions are a critical tool in supporting and advancing
U.S. foreign policy and national security interests, and are fully
integrated into all areas and levels of the Department diplomatic and
policy activities. The State Department was at the forefront of
coordinating and directing the use of sanctions as a tool of foreign
policy before the Office of Sanctions Coordinator was established and
remains a leader in the interagency. Dozens of officers within our
Bureaus of Economic and Business Affairs (EB), Counter Terrorism (CT),
International Security and Non-Proliferation (ISN), International
Narcotics and Law Enforcement Affairs (INL), International
Organizations (IO), Democracy Human Rights and Labor (DRL), and in
every regional bureau and at countless posts overseas historically
have, and continue to apply and implement the United States' sanctions
commitments and obligations. These Bureaus work with the Policy
Planning Staff (S/P) to continue to coordinate State Department
sanctions activities with those of other departments and agencies, as
well as foreign allies and partners. As long as sanctions remain a
critical tool to advance foreign policy, the Department will continue
to devote significant attention, personnel, and resources to sanctions
policy, coordination, and implementation.
Question 3. As the fight to recapture territory held by ISIS seems
to wind down, what are the standards and metrics you will use to
determine the defeat of ISIS in Iraq and Syria?
Answer. Coalition-backed military operations have liberated over 90
percent of the territory ISIS once controlled in Syria and Iraq and
freed an estimated 7.5 million people from ISIS's oppressive rule.
Realizing that military operations while necessary are insufficient to
achieve ISIS's enduring defeat, the U.S.-led Global Coalition to Defeat
ISIS is committed to helping stabilize liberated communities and
preventing ISIS's reemergence.
The United States and our Coalition partners are using several
metrics to gauge the success of our efforts to militarily defeat ISIS
and subsequently provide explosive remnant of war removal and
stabilization assistance to enable the safe return of displaced persons
and the restoration of essential services in liberated areas, in
addition to humanitarian support for those affected by the conflict.
First, ISIS has been unable to recapture a single inch of the over
103,000 square kilometers of territory liberated in Coalition-backed
military operations, and which includes important cities such as Mosul,
Fallujah, Ramadi, Tikrit, Tal Afar, Hawija, al-Qaim, Sinjar, Manbij,
Tabqa, Shaddadi, and Raqqa. Second, the Coalition has trained-and-
equipped over 122,000 members of the Iraqi Security Forces, to include
the Iraqi Army, local and federal police, border guards, Kurdish
Peshmerga, the Counter Terrorism Service, and local hold forces. The
Coalition has also trained over 9,500 members of the Syrian Arab
Coalition, the Arab element of the Syrian Democratic Forces, and over
2,000 members of the Raqqa Internal Security Force. These forces will
be a vital component of our partnered forces' efforts to combat a
likely ISIS insurgency in the weeks, months, and even years ahead.
Third, Coalition-funded, Government of Iraq-led, United Nations
Development Programme-implemented stabilization assistance has helped
facilitate the safe and voluntary return of more than 2.6 million
internally displaced Iraqis. Similarly, in Syria we are working with an
array of local actors including the Raqqa Civilian Council to
coordinate and implement stabilization programming. The longer it takes
to establish the conditions that allow for the return or local
integration of internally displaced persons (IDPs), the higher the risk
for a potential re-emergence of ISIS or another violent extremist
organization. We will continue to work with the Government of Iraq and
Prime Minister Abadi in particular to ensure local authorities and
beneficiary populations are included in the provision of humanitarian
assistance and the implementation of stabilization projects to bolster
trust between Iraqi citizens and the central government.
Question 4. What is your assessment of the ISIS threat[s] after
the[y] lose their territory? Where will ISIS fighters go and what
tactics will they employ? Is there a threat of ISIS fighter rebranding?
Answer. Despite losing over 90 percent of the territory it once
controlled in Syria and Iraq, ISIS remains a capable adversary with the
ability to conduct offensive operations in a number of areas of Iraq
and Syria. The group also maintains its ability to direct, enable, and
inspire external operations outside of Iraq and Syria.
ISIS maintains control over the city of Albu Kamal, pockets of
territory in other areas of Syria, and a sizeable presence north of the
Euphrates River in Syria's Deir Ez-Zour province. ISIS similarly
maintains control over a small segment of territory in Iraq's Anbar
province along the Euphrates River Valley, including the town of Rawa
on the northern bank of the Euphrates River. The overall force strength
of ISIS in Iraq and Syria is approximately 1,500-3,000 fighters, though
this number has likely been reduced further by recent military
operations.
As ISIS loses territory in Iraq and Syria, ISIS is likely to evolve
into a more traditional insurgency group, shifting tactics from larger,
conventional operations to asymmetric guerrilla and terrorist attacks
to sow instability. ISIS fighters in Syria and Iraq are still able to
conduct improvised explosive device (IED), vehicle-born improvised
explosive device (VBIED), suicide, mortar, sniper, and small-arm
attacks. They have also used unsophisticated, commercially-available
unmanned aerial vehicle (UAV) technology to drop munitions from the air
in harassing attacks, and rudimentary chemical weapons largely for
psychological effect. And they maintain the capability to radicalize
and recruit foreign sympathizers using the internet and other media.
Furthermore, ISIS has deliberately hidden large numbers of IEDs and
other unexploded munitions in territory it has fled, which will
complicate stabilization efforts and likely continue to cause
significant civilian casualties, damage cities, and incite
apprehension.
ISIS is also a global phenomenon, unconstrained by international
boundaries. In the Lake Chad Region, Yemen, North Africa and the Sahel,
East Africa, and the Philippines, ISIS branches, affiliates, and
sympathizers will continue to carry out terrorist attacks and look to
recruit and radicalize potential followers. The U.S. Government will
continue to work with local, regional, and international partners to
degrade these individuals and cells, regardless of their location, and
work to ensure they are unable to direct or enable attacks against the
U.S. homeland, U.S. persons, or U.S. interests. Our security
partnerships will persist beyond near-term battlefield victories to
ensure our partners are able to effectively counter any new insurgency
and to ensure ISIS is unable to re-emerge. Our Intelligence Community
will continue to track the movement of ISIS fighters both inside Iraq
and Syria and around the world.
The Global Coalition to Defeat ISIS is committed to ISIS's enduring
defeat. Realizing that military operations are necessary, but alone
insufficient to achieve that objective, the Coalition will remain
engaged with our partners on the ground in Iraq and Syria to help
stabilize liberated communities and prevent ISIS's reemergence. The
United States Government, alongside our Coalition partners, will
continue to engage in bilateral, regional, and international efforts to
eliminate ISIS and ISIS facilitation networks.
Question 5. Is there a point at which you will run out of
authorities to legally remain in Iraq--or Syria-- if ISIS, al-Queda,
Jabhat Fateh Al-Sham, or any other affiliate groups have been driven
from their previously held territory?
Answer. As a matter of domestic law, the 2001 Authorization for Use
of Military Force (AUMF) and the 2002 AUMF authorize the U.S. use of
military force against ISIS in Iraq. As a matter of international law,
the United States is using force against ISIS in Iraq at the request of
and with the consent of the Government of Iraq.
In Syria, the 2001 AUMF and, in certain circumstances, the 2002
AUMF authorize the use of force in Syria against al-Qaeda in Syria and
ISIS. As a matter of international law, the United States is using
force in Syria against ISIS and is providing support to Syrian partners
fighting ISIS in the collective self-defense of Iraq (and other states)
and in U.S. national self-defense. The United States is also using
force in Syria against al-Qaeda in self-defense of the United States.
These domestic and international legal bases for U.S. military
operations in Iraq and Syria do not depend on ISIS's, or any other
group's, physical control of territory. Whether and to what extent the
United States would have legal authority to undertake specific military
actions in Iraq and Syria in the future would necessarily depend upon
the facts and circumstances of a specific situation.
Question 6. In Iraq, how do you determine which groups within the
Popular Mobilization Forces are taking orders from Iran?
Answer 6. We are under no illusions about the destabilizing nature
of Iran's activities in the region. To the extent that Iran pursues
policies in Iraq that heighten sectarian tensions and undermine Iraqi
sovereignty, we remain committed to helping the Government of Iraq
(GoI) counter these activities.
The Popular Mobilization Forces (PMF) are part of the Iraqi
Security Forces (ISF), reporting to the Prime Minister's Office. Over
40 groups are part of the PMF, many of them Shia, but also Sunni,
Christian, and Yazidi.
Some PMF groups are openly close to Iran, and we monitor this
closely. The United States carries out extensive vetting of all ISF
units and their leaders before delivering any training or equipment. We
do NOT provide support to groups or forces that are designated
terrorist organizations, responsible for gross violations of human
rights, or that are not under the full control of the GoI.
Question 7. What is the U.S. policy on demobilizing the PMF after
ISIS is defeated in Iraq?
Answer. We agree with Prime Minister Abadi on the importance of
ensuring that all participants in the shared fight against ISIS are
under the control of the GoI and held to the same standards of
accountability. We will support the GoI as it continues to reform its
security sector, and begins to demobilize some PMF elements and make
others a part of the Iraqi Army, Federal Police, or other security
structures and institutions under the full control of the Iraqi state.
Question 8. Does PMF involvement in Kurdish majority areas threaten
stability and civilian protection in these areas?
Answer. We remain concerned about the potential for violence
between ISF and Kurdistan Regional Government (KRG) forces following
the KRG's unconstitutional and ill-advised independence referendum. We
continue to urge all parties in Iraq to halt any uncoordinated movement
in disputed areas, and we are encouraged that parties have begun
dialogue on establishing Federal authority at international border
crossings. We expect enhanced military coordination will lead to
constructive dialogue on a host of issues, from establishing joint
security and administrative mechanisms in disputed territories to oil
revenue sharing.
We have and will continue to express our concerns with
undisciplined elements of the PMF having security responsibility in
sensitive disputed areas or around minority communities. We continue to
urge Iraqi leaders to withdraw PMF from these areas and replace them
with Iraqi Army and local police units.Question 7:
As Iran's influence continues to grow in Syria, what measures would
we take if Iran attacked U.S.-backed forces there? [If so] Under what
authorities?
Answer. The efforts of the U.S.-led Global Coalition to Defeat ISIS
in Syria are aimed at the defeat of ISIS. The United States does not
seek to fight the Syrian Government or pro-Syrian-Government forces,
including Iran.
The 2001 Authorization to Use Military Force (AUMF) authorizes the
use of force against al-Qaeda and associated forces, including against
ISIS, including in Iraq and Syria. The 2001 AUMF also provides
authority to use force to defend U.S., Coalition, and partner forces
engaged in the campaign to defeat ISIS to the extent such use of force
is a necessary and appropriate measure in support of these counter-ISIS
operations.
As a matter of international law, the United States is using force
in Syria against al-Qaeda and associated forces, including against
ISIS, and is providing support to Syrian partners fighting ISIS, such
as the Syrian Democratic Forces, in the collective self-defense of Iraq
(and other States) and in U.S. national self-defense. Necessary and
proportionate measures in self-defense include the use of force as
needed to defend U.S., Coalition, and U.S.-supported partner forces
engaged in the campaign to defeat ISIS from interference by Syrian
Government and pro-Syrian Government forces.
Question 9. In August, Secretary Tillerson said that it appeared
Russia was ramping up support of the Taliban in Afghanistan. Is the
friend of our enemy our enemy as well? Does this make Russia our enemy
in Afghanistan or more broadly? What authorities do you believe you
have to respond to state-sponsored support of the Taliban and how would
you use those authorities? What authorities would you seek?
Answer. Russia maintains relationships with the Afghan government
and the Taliban in part to hedge against instability in Afghanistan and
in part to undermine U.S. influence in the region. Russia seeks to
justify its relations with the Taliban by claiming it is to counter
ISIS, promote a peace process, and protect Russian diplomatic
personnel.
Our conditions-based South Asia Strategy is a strong rebuke to
Russia's Taliban hedging strategy. We have made it clear the United
States will stay in Afghanistan as long as it takes to ensure a peace
agreement that ends the conflict and prevents Afghanistan from ever
again becoming a safe haven for transnational terrorist groups. We will
continue to engage all regional actors, including Russia, to reinforce
the fact that the only way to promote security, including countering
transnational terrorist groups, is to fully support the Afghanistan
government and its security forces.
I am not aware of any additional authorities the State Department
needs to respond to foreign support to the Taliban. We have made it
clear to all parties in the region--Iran and Russia, in particular--
that hedging behavior through support to the Taliban only undermines
security in the region. Support to the Taliban's military capacities is
especially dangerous and destabilizing. We will counter any and all
support to the Taliban.
Question 10. Our military leaders generally agree that the best
investments we can make into preventing war start with a robust
diplomacy and development budget.
You submitted a budget with deep cuts to critical diplomatic
initiatives and development efforts. The President has not provided a
nomination for an Ambassador to South Korea--our most crucial ally as
we seek to confront an aggressive North Korea. You shuttered the office
of the Special representative for Afghanistan and Pakistan:
What are the implications for cuts to the State Department? What
are the implications for less than a fully staffed diplomatic
presence in places like Iraq and Afghanistan?
Answer. The President's FY 2018 budget request prioritizes the
well-being of Americans, bolsters U.S. national security, secures our
borders, and advances U.S. economic interests. Within those priorities,
the State Department's mission is focused on protecting our citizens at
home and abroad, as well as advancing the economic interests of the
American people.
Ensuring the security and prosperity of the American people and
advancing our values has necessitated difficult tradeoffs in our
budget. The State Department and USAID's FY 2018 budget request
acknowledges that our operations must become more efficient, that our
assistance must be more effective, and that our primary mission must
always be advocating for the national interests of our country. Global
challenges cannot be met by governments alone, and no longer rely so
heavily on the United States. The FY 2018 request expects greater
leveraging of U.S. dollars, along with increased efficiency and
effectiveness of each dollar. In addition, the request expects that the
private sector and countries themselves make better use of their own
investments for development.
The FY 2018 budget request reorients our foreign assistance to the
most critical priorities, which means revisiting where and at what
level we provide assistance. If no bilateral funding is requested for a
particular country, in some cases we are leveraging prior-year funds to
continue some support. In other cases we may utilize funds from a
regional line to support activities in a particular country.
Charge d'Affaires Marc Knapper is leading our diplomatic mission in
the Republic of Korea and the Secretary has full confidence in him. Mr.
Knapper is a Korea expert with extensive experience working on Korea
issues.
On November 18, 2016, the Department notified to Congress our
intent to merge the U.S. Special Representative for Afghanistan and
Pakistan (SRAP) into the Bureau of South and Central Asian Affairs
(SCA). Subsequent to the November 18, 2016 notification, SCA has
assumed the functions and staff of SRAP and coordinates across the
government to meet U.S. strategic goals in the region.
Consistent with past practice, U.S. staffing abroad is driven by
foreign policy priorities and weighed against risks to personnel, as
well as the availability of resources to support the U.S. mission.
Regarding staffing in Afghanistan and Iraq, staffing levels remain
largely consistent with prior years.
Question 11. If the United States suffered a state-sponsored
massive cyber-attack, how would we respond? Do the Departments of
Defense and State have in place response plans to cyber-attacks? How
should Congress authorize those responses? Should we measure cyber-
attacks on a scale? Would an attack on the energy grid of a major city
merit the same response as an attack on a nuclear facility? On a voter
database?
Answer. The United States responds to cyber threats through a
whole-of-government approach that leverages the full range of U.S.
Government capabilities--diplomatic, economic, law enforcement,
technical, and military.
The Department of Defense (DoD) maintains a deliberate planning
process to prepare for the defense of the Nation across all domains,
including cyberspace. DoD's plans and actions are always in support of
the larger foreign policy and diplomatic efforts of the U.S.
Government.
The Department of State supports interagency efforts to address
cyber incidents that rise to the level of a national security concern
by providing foreign policy guidance on appropriate responses, building
support among foreign governments for such responses and, where
appropriate, delivering messages of warning to potential adversaries.
The U.S. Government evaluates malicious cyber activities on a case-
by-case basis precisely because, as your questions highlight, the
appropriateness of a response is dependent on the specific facts and
context of the particular malicious cyber activity in question. Factors
to be assessed include the scope, scale, and impact of the activity;
the entities targeted; the actor that executed the activity; and any
broader context from the international security environment. The loss
of life and threats to public health and safety obviously raise the
greatest concern.
When evaluating a cyber attack to determine the appropriate
response, it is the effects of the attack, and not the instrument used
to carry it out, that matters. If cyber operations cause effects that,
if caused by traditional physical means, would be regarded as a use of
force, then such cyber operations would likely also be regarded as a
use of force.
Moreover, there need not be loss of life for a response to be
merited. As we have seen during the past 18 months, our adversaries are
seeking to act below the threshold of the use of force. To the extent
that adversary cyber activity seeks to undermine U.S. national security
interests the United States reserves the right to respond appropriately
and proportionately at a time and place of its choosing by using any
instrument of national power on land, in the air, at sea, in space or
cyberspace.
__________
Responses to Additional Questions for the Record Submitted to
Hon. Rex Tillerson, Secretary of State, by Senator Rob Portman
Question 1. Secretary Tillerson, do you still support providing
defensive lethal military assistance to the Ukrainian armed forces?
What is the status of this decision?
Answer. In response to Russian aggression, the United States has
committed more than $750 million in security assistance since 2014 to
provide training and equipment to help Ukraine defend its sovereignty
and territorial integrity, better monitor and secure its borders, and
deploy its forces more safely and effectively.
The United States and partners also established a Multinational
Joint Commission to coordinate international security assistance
efforts and identify capability gaps. We will continue to use grant
military assistance to build Ukraine's capabilities by investing in our
ongoing Joint Multinational Training Group--Ukraine, defense reform and
institutional advisors, secure communications, intelligence,
surveillance, and reconnaissance, maritime domain awareness, counter-
mortar/counter-artillery radars, night vision devices, HMWWVs, medical,
and related sustainment and training.
Question 2. Is the State Department taking a lead role in
implementing the administration's new Afghanistan strategy? Where are
the State Department and USAID focusing their efforts in Afghanistan?
Answer. The State Department is taking the diplomatic lead to
encourage a peaceful political settlement in Afghanistan. We have made
significant progress in Afghanistan since 2001--on security,
governance, socio-economic development, and regional integration--but
the country remains fragile. To cement this progress, we have focused
on building and strengthening the Afghan government led by President
Ashraf Ghani and Chief Executive Abdullah Abdullah. In conjunction with
our new strategy, and at the initiative of President Ghani, the Afghan
government developed the Kabul Compact to monitor priority reforms in
four key sectors: governance, economic development, the peace process,
and security. We meet regularly with the Afghan government to assess
progress on these reforms. We are particularly focused on supporting
the Afghan government's effort to hold parliamentary elections
scheduled for 2018 and a Presidential election in spring 2019.
In my recent visit to South Asia, I explained the President's South
Asia strategy to leaders in Afghanistan, Pakistan, and India and
reviewed what these countries could do to support it. We are working
closely with our allies and partners to continue strong international
support for the Afghan government and its security forces to help
create the environment necessary to sustain peace. On October 16, we
held the sixth meeting of the Quadrilateral Coordination Group (QCG)
with Afghanistan, China, and Pakistan, to promote Afghanistan-Pakistan
cooperation and align efforts in support of a peace process. The State
Department leads the U.S. delegations to several international fora
intended to renew and align international support for Afghanistan,
including the Heart of Asia/Istanbul Process, the Regional Economic
Cooperation Conference on Afghanistan, and the Kabul Process
Conference.
USAID is developing strategies in Afghanistan and Pakistan to
support the broad vision outlined in the South Asia strategy. The new
USAID development strategy for Afghanistan will advance U.S. national
security interests, and complement the efforts of the Departments of
Defense and State to strengthen the government's ability to be an
effective counterterrorism partner. The strategy aims to reduce
Afghanistan's reliance on donor assistance, improve the country's
stability, and enhance the accountability of our assistance. It focuses
on increasing the government's revenue base by enabling private sector-
led economic growth, strengthening service delivery in government-
controlled areas, and helping Afghanistan sustain its gains in health,
education, and women's empowerment.
__________
Responses to Additional Questions for the Record Submitted to
Hon. Rex Tillerson, Secretary of State, by Senator Jeanne Shaheen
Question 1. Earlier this summer, the Department of State briefed
committee staff on your goals for the proposed reorganization of the
State Department. At that time, Department officials stated that it was
the intention of the Department to reduce the number of positions at
the Department by at least 2,000 over the coming years. Can you confirm
that this is still your intention? How does the Department intend to
achieve those personnel reductions?
Answer. Yes, that is still our intention. The Department developed
a workforce reduction plan consistent with OMB guidance. The plan
consists of voluntary attrition, some strategic hiring, and
incentivized attrition (e.g. buyouts) of approximately 641 voluntary
early retirement authority and/or voluntary separation incentive
payments (VERA/VSIP). VERA/VSIP plans must be approved by OPM and OMB.
Foreign and Civil Service hiring (intake planning) is based on
replacing less than 100 percent of projected attrition. In both cases,
we believe this measured approach to hiring reflects a careful balance
of workforce continuity and stability within the overarching context of
the Department's ongoing workforce reductions.
For the Foreign Service, intake planning figures were developed to
ensure that sufficient numbers of new entry level Foreign Service
personnel are available to fill critical overseas postings and, over
the course of their careers, fill higher level positions in our most
critical Generalist and Specialist skill categories. Civil Service
intake focuses hiring on those mission critical occupations that
provide important policy development and program support here in
Washington and in concert with our colleagues serving overseas.
Question 2. What is the current and anticipated intake of new
entry-level Foreign Service generalists and specialists? What is the
status of the State Department's hiring freeze and the rationale for
its continuation?
Answer. The Department is continuing with strategically managed
hiring while we undertake a comprehensive redesign of the Department in
order to ensure strategic alignment. This is a temporary measure while
a thorough review of the entire State Department is conducted. This
initiative will direct sound decisions on how to best strengthen the
institution and enhance our diversity. At the same time, we are
committed to preserving future leadership pipelines and and will
continue to assess and hire Foreign Service candidates.
On September 18 we swore in the 192nd A-100 class for Foreign
Service Officers and the 147th Foreign Service specialist class,
comprised primarily of diplomatic security special agents and medical
professionals. In Fiscal Year (FY) 2017, the State Department brought
on board the following new Foreign Service personnel:
220 Foreign Service Officers
254 Foreign Service Specialists
126 Consular Fellows (limited non career appointments)
7 Medical and PEPFAR-related limited non career appointments
Recruitment and assessment of candidates continues in order to
preserve a future mid-level and leadership pipeline of talented
and diverse Foreign Service Officers and Specialists, as well
as to meet current entry-level needs overseas. Strategically
managing hiring remains a priority for FY 2018, with a goal of
onboarding the following number of new Foreign Service
personnel:
101 Foreign Service Officers of whom 55 are Pickering and Rangel
Fellows
91 Foreign Service Specialists
Additionally in accordance with EO 13870, the Department plans to
onboard in FY 2018:
281 Consular Fellows (limited non-career appointments)
Question 3. Please provide the numbers of employees that have
departed the State Department in 2016 and to date, for 2017. Please
break those numbers down by month and by civil service versus Foreign
Service. Do not include political appointments or Schedule B positions
in the count.
Answer. Department of State loss\1\ counts for career full-time
permanent employees in FY 16 and FY 17 as of September 30, 2017 are
provided in the table below. These counts exclude non-career losses
including limited and political appointments.
---------------------------------------------------------------------------
\1\ Losses include retirements, non-retirement separations, and
conversion between the Foreign Service and Civil Service.
DEPARTMENT OF STATE LOSS COUNTS FOR CAREER FULL-TIME PERMANENT EMPLOYEES
----------------------------------------------------------------------------------------------------------------
FY 2016 FY 2017
-------------------------------------------------------------------------------------------------
Month Foreign Foreign Civil Service
Service Civil Service Total Service Total
----------------------------------------------------------------------------------------------------------------
Oct 36............. 84............. 120........... 30............ 63............ 93
Nov 61............. 42............. 103........... 56............ 53............ 109
Dec 37............. 74............. 111........... 43............ 75............ 118
Jan 24............. 93............. 117........... 36............ 113........... 149
Feb 25............. 43............. 68............ 18............ 47............ 65
Mar 21............. 54............. 75............ 24............ 73............ 97
Apr 55............. 88............. 143........... 50............ 47............ 97
May 21............. 38............. 59............ 24............ 50............ 74
Jun 36............. 59............. 95............ 42............ 56............ 98
Jul 39............. 60............. 99............ *38........... *45........... *83
Aug 53............. 54............. 107........... *35........... *71........... *106
Sep 124............ 74............. 198........... *118.......... *49........... *167
Total 532............ 763............ 1295.......... *514.......... *742.......... *1256
----------------------------------------------------------------------------------------------------------------
* Preliminary counts as transactions may still be in process.
__________
Responses to Additional Questions for the Record Submitted to
Hon. Rex Tillerson, Secretary of State, by Senator Tim Kaine
Associated Forces
Question 1. Can you please detail and list all the groups that have
been deemed associated forces under the 2001 AUMF and all the locations
where the U.S. military is involved under the 2001 AUMF? How many of
these associated forces are engaged in hostilities against the United
States, its Armed forces, or personnel? Which of these associated
forces present a direct threat to the Unites States? Is there a single
source that Congress can access to find up to date information on this
question?
Answer. The U.S. military is currently taking direct action against
the following individuals and groups under the authority of the 2001
Authorization for Use of Military Force (AUMF): al-Qaeda; the Taliban;
certain other terrorist or insurgent groups affiliated with al-Qaeda
and the Taliban in Afghanistan; al-Qaeda in the Arabian Peninsula; al-
Shabaab; al-Qaeda in Syria; and ISIS.
During the Trump administration, the United States has used
military force pursuant to the 2001 AUMF in Afghanistan, Cuba
(detention operations), Iraq, Libya, Somalia, Syria, Niger, and Yemen.
As a matter of international law, the United States is in an
ongoing non-international armed conflict with these groups and
individuals and is engaged in hostilities against them.
Counterterrorism operations against these individuals and groups are
undertaken in furtherance of U.S. national self-defense and, in some
cases, also in collective self-defense of partner States such as Iraq.
The administration is committed to keeping Congress timely and fully
informed of uses of military force pursuant to the 2001 AUMF, including
in periodic reports submitted consistent with the War Powers
Resolution.
Question 2. Please detail the process for which a new group is
identified and approved as an associated force under the 2001 AUMF.
Does such determination trigger a requirement to notify or brief
Congress?
Answer. A determination of whether a group is covered by the 2001
AUMF is made at the most senior levels of the U.S. Government only
after a careful evaluation of the intelligence concerning each group's
organization, links with al-Qaeda or the Taliban, and participation in
al-Qaeda's or the Taliban's ongoing hostilities against the United
States or its coalition partners.
The administration periodically briefs members of Congress about
U.S. operations against these groups and the legal basis for these
operations.
Question 3. The administration considers ISIS an associated force
of al-Qaeda and thus covered under the 2001 AUMF (in addition to being
covered under the 2002 AUMF). Though we disagree on this, I am further
troubled by suggestions that the administration may be expanding its
definition of associated forces to include ISIS affiliated militants or
ISIS associated forces. Previously, an associated force need to be
both: 1) an organized, armed group that has entered the fight alongside
al-Qaeda, and 2) a co-belligerent with al-Qaeda in hostilities against
the United States or its coalition partners. As such, not every group
that commits terrorist acts is an associated force and not every group
aligned with al-Qaeda is an associated force. Can you confirm that the
administration does not consider forces that are affiliated or
associated with ISIS as covered under the 2001 AUMF? Please provide the
administration's current definition of associated forces.
Answer. The administration has not determined that the 2001 AUMF
applies to any group solely on the basis that the group is an
``associated force'' of ISIS. Although branches of ISIS have emerged in
locations outside Iraq and Syria, we regard those branches in a number
of locations as being part of ISIS.
The Government's definition of associated forces remains unchanged
from the prior administration.
Coalition Partner
Question 4. Can you confirm that the current number of countries in
the counter-ISIS coalition is currently 69? Do you believe the U.S.
currently has the authority to undertake military action, outside of
treaty obligation, to protect all of these countries in hostilities
with al-Qaeda through U.S. military operations?
Answer. There are currently 70 countries in the Defeat-ISIS
Coalition. Whether and to what extent the United States would have
legal authority to undertake military action in defense of another
country would necessarily depend upon the facts and circumstances of a
specific situation. Of course, as the administration has previously
reported, the 2001 AUMF provides the authority to use force to defend
U.S. and Coalition forces engaged in the campaign to defeat ISIS to the
extent such use of force is a necessary and appropriate measure in
support of counter-ISIS operations.
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. 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.
__________
Responses to Additional Questions for the Record Submitted to
Hon. James Mattis, Secretary of Defense, by Senator Bob Corker
2001 and 2002 AUMF Repeal
Question 1. If Congress decided to repeal the 2001 and 2002
Authorizations for Use of Military Force (AUMFs), and simultaneously
provide a replacement AUMF that authorizes the President to use all
necessary and appropriate force against the Taliban, al-Qaeda, ISIS,
and associated forces (appropriately defined):
What would be the legal consequences, and what other provisions of
law would be impacted? Please be as specific as possible.
How could Congress mitigate any negative legal consequences in a
replacement AUMF and ensure a smooth transition to the new
authority, including with respect to legacy detainees? If
possible, please provide specific language.
Answer. The U.S. Government's response in litigation of habeas
corpus petitions brought on behalf of certain detainees has expressly
relied on the 2001 Authorization for Use of Military Force (AUMF). One
of the principal concerns with repealing the 2001 and 2002
authorizations would be uncertainty regarding the effect of such a
repeal on the ongoing detention of those individuals. To the extent
that the Government would seek to continue detaining the individuals on
the basis of any new AUMF, the applicability of any subsequent law
could be subject to further litigation. The administration would need
to review any proposed language that the committee might develop.
2002 AUMF Repeal and 2001 AUMF Amendment
Question 2. In the alternative, if Congress decided to repeal the
2002 AUMF and amend the 2001 AUMF to provide fresh authorization for
the use of military force against the Taliban, al-Qaeda, ISIS, and
associated forces (appropriately defined):
What would be the legal consequences, and what other provisions of
law would be impacted? Please be as specific as possible.
How could Congress mitigate any negative legal consequences with an
amended 2001 AUMF and ensure a smooth transition, including
with respect to legacy detainees? If possible, please provide
specific language.
Answer. Amendment of the 2001 Authorization for Use of Military
Force (AUMF) could present similar concerns as a repeal and replacement
of that law, including that it could result in a need to re-litigate
the lawfulness of the detention of certain individuals who are
currently detained under the 2001 AUMF. The administration would need
to review the specific language of any proposed legislation.
Associated Persons or Forces
Question 3. In a letter to Senate leaders earlier this year, you
and Secretary Tillerson expressed concern about the definition of
``associated persons or forces'' in S.J. Res. 43, which you stated is
``inconsistent with the standard applied by the Executive Branch and
which could result in unnecessary uncertainty regarding its scope.''
What is the ``standard applied by the Executive Branch'' to which
you referred in your letter?
If the administration does not support the definition of
``associated persons or forces'' in S.J. Res. 43, what
definition does the administration recommend for a new AUMF?
Answer. The Executive Branch has described a concept of
``associated forces'' in interpreting and applying the 2001
Authorization for Use of Military Force (AUMF). It requires, first,
that the entity be an organized, armed group that has entered the fight
alongside al-Qaeda or the Taliban and, second, that the group be a co-
belligerent with al-Qaeda or the Taliban in hostilities against the
United States or its coalition partners. In the context of detention,
the Executive Branch has described the 2001 AUMF as applying to people
who are part of or substantially support such groups.
2002 AUMF Repeal
Question 4. Does your Department have any legal or policy concerns
with repealing the 2002 AUMF? If yes, please explain.
Answer. Although the threat posed by Saddam Hussein's regime in
Iraq was the primary focus of the 2002 Authorization for Use of
Military Force (AUMF), the statute, in accordance with its express
goals, has always been understood to authorize the use of force for the
related dual purposes of helping to establish a stable Iraq and of
addressing terrorist threats emanating from Iraq. After Saddam
Hussein's regime fell in 2003, the United States continued to take
military action in Iraq under the 2002 AUMF to further these purposes,
including action against al-Qaeda in Iraq (now known as the Islamic
State of Iraq and Syria (ISIS)). Then, as now, that organization posed
a terrorist threat to the United States and its partners and undermined
stability and democracy in Iraq. The 2002 AUMF thus continues to
provide authority for military operations against ISIS in Iraq and, to
the extent necessary to achieve these purposes, elsewhere, including in
Syria.
Additional Authorizations for Use of Military Force
Question 5. Does your Department construe any of the following
provisions of existing law as an Authorization for Use of Military
Force? If yes to any, please specify and explain the interpretation.
Authorization of the Secretary of Defense to provide support for
friendly foreign countries (10 U.S.C. Sec. 331).
Authorization of the Secretary of Defense to support for foreign
forces, irregular forces, groups, or individuals engaged in
supporting or facilitating ongoing military operations by
United States special operations forces to combat terrorism (10
U.S.C. Sec. 127e).
Authorization of the Secretary of Defense 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 (10 U.S.C. Sec. 333):
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.
Answer. The provisions of Title 10 cited in your question provide
important authority for certain military activities that support
counterterrorism operations and other aspects of U.S. national
security, but they are not authorizations to use military force.
__________
Responses to Additional Questions for the Record Submitted to
Hon. James Mattis, Secretary of Defense, by Senator Benjamin L. Cardin
Section 4(a) of the War Powers Resolution
Question. Section 4(a) of the War Powers resolution requires that
in the absence of a declaration of war, in any case in which ``United
States Armed Forces are introduced (1) into hostilities or into
situations where imminent involvement in hostilities is clearly
indicated by the circumstances,'' the President must withdraw such
forces within 60 days unless Congress has declared war or otherwise
authorized their deployment. U.S. Forces in Niger are now, obviously,
in an area in which imminent involvement in hostilities is clearly
indicated by the circumstances of the attack on U.S. soldiers, and the
resulting death of four of them, in early October. Does the
administration now consider that the 60-day clock has begun, and if
not, what is the legal reasoning behind this conclusion?
Answer. The October 4th ambush of U.S. and Nigerien forces was a
tragic but isolated incident. It does not indicate imminent involvement
of U.S. forces in further hostilities. Additionally, our assessment is
that an ISIS group was responsible for that ambush. Operations against
ISIS are authorized by the 2001 Authorization for Use of Military Force
so would not be subject to the termination provision of the War Powers
Resolution.
__________
Responses to Additional Questions for the Record Submitted to
Hon. James Mattis, Secretary of Defense, by Senator Jeff Flake
Operations Authorized by 2002 AUMF
Question. In your prepared remarks and during the question and
answer period of the hearing, you repeatedly referenced the need to
maintain the authorities provided in both the 2001 and 2002
authorizations for the use of military force (PL 107-40, and PL 107
243, respectively). The 2002 law provides that, ``The President is
authorized to use the Armed Forces of the United States as he
determines to be necessary and appropriate in order to 1) defend the
national security of the United States against the continuing threat
posed by Iraq, and 2) enforce all relevant United Nations Security
Council resolutions regarding Iraq.''
Given the regime change that has taken place in Iraq following the
U.S. invasion in 2003, what utility does PL 107-243 continue to
serve?
What U.S. military operations are currently taking place inside
Iraq that rely on the authority provided in PL 107-243?
Answer. The United States continues to rely on the 2002
Authorization for Use of Military Force (AUMF) Against Iraq Resolution,
along with the 2001 AUMF, as part of the domestic legal basis for
conducting military operations against the Islamic State of Iraq and
Syria (ISIS) in Iraq and Syria. Although the threat posed by Saddam
Hussein's regime in Iraq was the primary focus of the 2002 AUMF, the
statute, in accordance with its express goals, has always been
understood to authorize the use of force for the related dual purposes
of helping to establish a stable Iraq and of addressing terrorist
threats emanating from Iraq. After Saddam Hussein's regime fell in
2003, the United States continued to take military action in Iraq under
the 2002 AUMF to further these purposes, including action against al-
Qaeda in Iraq (now known as ISIS). Then, as now, that organization
posed a terrorist threat to the United States and its partners and
undermined stability and democracy in Iraq. The 2002 AUMF continues to
provide authority for military operations against ISIS in Iraq and, to
the extent necessary to achieve these purposes, elsewhere, including in
Syria. The 2002 AUMF also provides authority to respond to threats to
U.S. national security from Iraq that may re-emerge in the future and
that may not be covered by the 2001 AUMF. The repeal of the 2002 AUMF
could call into question the President's authority to use military
force to assist the Government of Iraq both in the fight against ISIS
and in stabilizing Iraq following the destruction of ISIS's so-called
caliphate.
__________
Responses to Additional Questions for the Record Submitted to
Hon. James Mattis, Secretary of Defense, by Senator Robert Menendez
Defeating ISIS
Question 1. As the fight to recapture territory held by ISIS seems
to wind down, what are the standards and metrics you will use to
determine the defeat of ISIS in Iraq and Syria?
Answer. The Islamic State of Iraq and Syria (ISIS) will be
militarily defeated when it is unable to plot and carry out attacks
against the United States, and when local security forces are capable
of pursuing the group's underground networks. The coalition has
liberated more than 90 percent of ISIS-held territory, its plotters are
on the run, and fewer fighters are flocking to its banner. However, the
job is not done. ISIS will continue to pose a terrorist threat to the
U.S. and our interests in the region, as it continues efforts to
destabilize the region and direct or inspire external attacks. The
coalition has played, and will continue to play, a vital role in
supporting partners in Iraq and Syria as they secure their hard fought
gains.
ISIS Threat After Fall of Rocca
Question 2. What is your assessment of the ISIS threat after the
lose their territory? Where will ISIS fighters go and what tactics will
they employ? Is there a threat of ISIS fighter rebranding?
Answer. The Islamic State of Iraq and Syria (ISIS) still poses a
security threat in Iraq and Syria despite losing large amounts of
territory to Iraqi, pro-Syrian regime, and Coalition forces. ISIS
probably is giving priority to clandestine operations to plot attacks
to degrade local governance and security and maintain the group's
legitimacy. ISIS members who remain loyal to the group may provide
administrative or logistic support to these networks. Members who have
become disillusioned by ISIS's apparent defeat probably will attempt to
reintegrate into their communities. In areas such as Baghdad, Kirkuk,
and Diyala where it has robust networks, ISIS is conducting
sophisticated operations, including IEDs, ambushes, or suicide attacks.
ISIS could engage in some localized rebranding or alliances to preserve
the group's security. The group has not changed its extremist ideology
to allow alliances with more moderate groups and is tailoring its
narrative to highlight that considerable setbacks are part of its
preordained, multi-generational struggle.
Authorities to Remain in Iraq or Syria
Question 3. Is there a point at which you will run out of
authorities to legally remain in Iraq--or Syria-- if ISIS, al-Queda,
Jabhat Fateh Al-Sham, or any other affiliate groups have been driven
from their previously held territory?
Answer. The domestic and international legal bases for U.S.
military operations in Iraq and Syria do not depend on the Islamic
State of Iraq and Syria`s, or any other group's, physical control of
territory. Whether and to what extent the United States would have
legal authority to undertake specific military actions in Iraq and
Syria in the future would necessarily depend upon the facts and
circumstances of a specific situation.
Iraqi Popular Mobilization Forces
Question 4. In Iraq, how do you determine which groups within the
Popular Mobilization Forces in Iraq are taking orders from Iran? What
is the U.S. policy on demobilizing the PMF after ISIS is defeated in
Iraq? Does PMF involvement in Kurdish majority areas threaten stability
and civilian protection in these areas?
Answer. I am under no illusions about the destabilizing nature of
Iran's activities in the region. The Department remains committed to
helping the Government of Iraq (GoI) counter Iranian policies that
heighten sectarian tensions and undermine Iraqi sovereignty. The
Popular Mobilization Forces (PMF) are part of the Iraqi Security Forces
(ISF), reporting to the Prime Minister's Office. The PMF is composed of
more than 40 groups, many of them Shia, but also Sunni, Christian, and
Yazidi. The Department will support the GoI as it continues to reform
its security sector, including the GoI's efforts to ensure all armed
groups are under their full control. The presence of any sectarian
forces in sensitive, disputed areas is unhelpful and destabilizing. The
Department has convened military leaders from the Iraq Security Forces
and the Iraqi Kurdish Peshmerga to promote calm, ensure situational
awareness, and encourage the establishment of joint security mechanisms
to ease tensions and facilitate a broader political dialogue. I expect
enhanced military coordination will facilitate constructive dialogue on
a host of political issues, from disputed internal boundaries to oil
revenue sharing.
Iranian Actions in Syria
Question 5. As Iran's influence continues to grow in Syria, what
measures would we take if Iran attacked U.S.-backed forces there? Under
what authorities?
Answer. The efforts of the U.S.-led Global Coalition to Defeat the
Islamic State of Iraq and Syria (ISIS) in Syria are aimed at the defeat
of ISIS. The United States does not seek to fight the Syrian Government
or pro-Syrian-Government forces, including Iran. The 2001 Authorization
for use of Military Force (AUMF) authorizes the use of force against
al-Qaeda and associated forces, including against ISIS, including in
Iraq and Syria. The 2001 AUMF also provides authority to use force to
defend U.S., Coalition, and partner forces engaged in the campaign to
defeat ISIS to the extent such use of force is a necessary and
appropriate measure in support of these counter-ISIS operations. As a
matter of international law, the United States is using force in Syria
against al-Qaeda and associated forces, including against ISIS, and is
providing support to Syrian partners fighting ISIS, such as the Syrian
Democratic Forces, in the collective self-defense of Iraq (and other
States) and in U.S. national self-defense. Necessary and proportionate
measures in self-defense include the use of force as needed to defend
U.S., Coalition, and U.S.-supported partner forces engaged in the
campaign to defeat ISIS from interference by Syrian Government and pro-
Syrian-Government forces.
Russian Support to the Taliban
Question 6. In August, Secretary Tillerson said that it appeared
Russia was ramping up support of the Taliban in Afghanistan. Is the
friend of our enemy our enemy as well? Does this make Russia our enemy
in Afghanistan or more broadly? What authorities do you believe you
have to respond to state-sponsored support of the Taliban and how would
you use those authorities? What authorities would you seek?
Answer. Reports of Russian support to the Taliban are puzzling
because a de-stabilized Afghanistan is clearly not in Russia's
interest. I understand the Department is looking at this issue
carefully to determine where it is necessary to moderate any unhelpful
Russian behavior. Russia and the United States have a shared interest
in Afghanistan's stability. Russia's participation in the Afghan-led
and owned peace process and contributions to regional stability would
be welcome. However, I do believe state sponsors of terror need to be
held fully accountable, and I would work closely with the State
Department and other agencies to ensure we are exercising all necessary
tools and authorities to increase the costs on states that sponsor
support of the Taliban.
State Department Cuts
Question 7. Our military leaders generally agree that the best
investments we can make into preventing war start with a robust
diplomacy and development budget. You submitted a budget with deep cuts
to critical diplomatic initiatives and development efforts. The
President has not provided a nomination for an Ambassador to South
Korea--our most crucial ally as we seek to confront an aggressive North
Korea. You shuttered the office of the Special representative for
Afghanistan and Pakistan. What are the implications for cuts to the
State Department? What are the implications for less than a fully
staffed diplomatic presence in places like Iraq and Afghanistan?
Answer. The Department of Defense strongly supports, and relies on,
the Department of State's leading role in establishing and implementing
U.S. foreign policy. The Department of State needs to be appropriately
staffed and resourced in order to protect our country's national
security. The Department of Defense relies on our diplomatic corps to
help resolve disputes before they become military crises. State
Department personnel likewise play an invaluable role in theaters of
conflict, leading the important work of diplomacy, humanitarian relief,
and development. The role of the Department of State is particularly
critical in areas where we are seeking to negotiate a peace, build an
enduring relationship, or manage a potential contingency, as is the
case in places like the Korean Peninsula, Afghanistan, and Iraq. The
Department of Defense and the Department of State must work together
closely and be able to call upon their respective authorities and
expertise to navigate today's challenging global security environment
and protect U.S., allied, and partner interests around the world.
Cyberattack Response
Question 8. If the United States suffered a state-sponsored massive
cyberattack, how would we respond? Do the Departments of Defense and
State have in place response plans to cyberattacks? How should Congress
authorize those responses? Should we measure cyberattacks on a scale?
Would an attack on the energy grid of a major city merit the same
response as an attack on a nuclear facility? On a voter database?
Answer. The United States responds to cyber threats through a
whole-of-government approach that leverages the full range of U.S.
Government capabilities--diplomatic, economic, law enforcement,
technical, and military. The Department of Defense (DoD) maintains a
deliberate planning process to prepare for the defense of the Nation
across all domains, including cyberspace. DoD's plans and actions are
always in support of the larger foreign policy and diplomatic efforts
of the U.S. Government. The Department of State supports interagency
efforts to address cyber incidents that rise to the level of a national
security concern by providing foreign policy guidance on appropriate
responses, building support among foreign governments for such
responses and, where appropriate, delivering messages of warning to
potential adversaries.
The U.S. Government evaluates malicious cyber activities on a case-
by-case basis precisely because, as your questions highlight, the
appropriateness of a response is dependent on the specific facts and
context of the particular malicious cyber activity in question. Factors
to be assessed include the scope, scale, and impact of the activity;
the entities targeted; the actor that executed the activity; and any
broader context from the international security environment. The loss
of life and threats to public health and safety obviously raise the
greatest concern.
When evaluating a cyber attack to determine the appropriate
response, it is the effects of the attack, and not the instrument used
to carry it out, that matters. If cyber operations cause effects that,
if caused by traditional physical means, would be regarded as a use of
force, then such cyber operations would likely also be regarded as a
use of force. Moreover, there need not be the loss of life for a
response to be merited. As we have seen during the past 18 months, our
adversaries are seeking to act below the threshold of the use of force.
To the extent that adversary cyber activity seeks to undermine U.S.
national security and prosperity, the United States reserves the right
to respond appropriately and proportionately at a time and place of its
choosing with any of the instruments of national power, including the
military and including cyberspace.
Al-Qaeda-Iran Connection
Question 9. CIA Director Pompeo was recently quoted as saying the
al-Qaeda-Iran connection is an ``open secret.'' Do you agree that the
al-Qaeda-Iran connection is an open secret? Was he laying groundwork to
expand operations against al-Qaeda into Iran?
Answer. It would be inappropriate for me to speculate on the intent
of Director Pompeo's remarks.
POTUS in the Chain of Command
Question 10. Civilian control of the military is one of the most
critical underpinnings of a free and democratic society. Regarding the
recent attack in Niger, the President recently told reporters on
Wednesday of last week that he had not specifically authorized that
mission. He said, ``I have generals--they are great generals. I gave
them authority to do what's right so that we win. I want to win and
we're going to win and we're beating ISIS very badly . . . as far as
the incident we're talking about I've been seeing it just like you've
been seeing it.. They have to meet the enemy and they meet them tough
and that's what happens.'' In your view, where does the chain of
command begin and end? In other words--where does the buck stop with
authorizing military operations?
Answer. The President of the United States is the Commander-in-
Chief of the U.S. Armed Forces. The President delegates authority,
through the military chain of command, to conduct a wide range of
military operations.
Rules of Engagement
Question 11. In general, it seems that thus far, the President has
largely continued policies of the Obama administration and claimed new
ideas for fighting ISIS. On October 17, and other times as well, the
President stated: ``I totally changed rules of engagement. I totally
changed our military, I totally changed the attitudes of the military
and they have done a fantastic job.'' I understand the President sent a
memo on January 28 directing the DOD to develop a plan to defeat ISIS
and asked for recommended changes to ROE. What are those changes? Could
they put our troops more in harm's way? Do they change our approach to
civilian casualties? Do the American people have a right to know under
what terms our military is engaging in conflict, widely and ambiguously
defined training missions, and other deployments?
Answer. The President's delegation of certain authorities to
appropriate levels has allowed the Department to be more flexible and
react more quickly to battlefield opportunities against the Islamic
State of Iraq and Syria (ISIS) and threats to our forces. These
adjustments have accelerated the territorial defeat of ISIS and allowed
us to degrade the group's leadership and capabilities while keeping our
forces safe and minimizing the risks to civilians. The military
continues to take all feasible measures to minimize civilian harm in
military operations. The use of force continues to be governed by the
law of armed conflict, including the principles of proportionality,
distinction, necessity, and humanity. The Department is committed to
transparency and provides regular updates to Congress on the military
mission and force levels in Iraq and Syria.
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Responses to Additional Questions for the Record Submitted to
Secretary of Defense Hon James Mattis by Senator Todd Young
Excess Infrastructure
Question. In its FY 2018 Budget Request, the Department of Defense
requested authority to conduct a Base Realignment and Closure (BRAC)
round in fiscal year 2021. The proposal noted that ``the Department has
about 20 percent more infrastructure capacity than required for its
operations.'' What are the implications for readiness and modernization
if the services are required to maintain infrastructure they don't
need?
Answer. Like any business, maintaining excess infrastructure denies
the Department the opportunity to spend funds on higher priorities. The
Department requested a Base Realignment and Closure (BRAC) round for
2021 to provide a means to align infrastructure with force structure
and to station our forces to enhance their capabilities and lethality.
The Department is developing a new National Defense Strategy, and it
must be supported by an updated basing strategy. Without BRAC, the
Department cannot station forces as effectively as possible because we
are locked into a status quo configuration, thereby negatively
affecting readiness. I must be able to eliminate excess infrastructure
in order to shift resources to readiness and modernization. The
billions in annual recurring savings--otherwise wasted on unnecessary
infrastructure--could be applied directly to readiness (e.g. more
training) and modernization (e.g. investing in next generation weapons
systems).
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Responses to Additional Questions for the Record Submitted to
Hon. James Mattis, Secretary of Defense, by Senator Jeanne Shaheen
Euphrates River Valley
Question. Secretary Mattis, I agree with you when you said that
Syria is ``the most complex battlefield.'' Also in your response to my
question, you said that the United States will continue to clear the
Euphrates River Valley. You specifically said that our military will
move toward Mayadin. Reports, however, indicate that Asad's regime
forces and the Russians are in that area. What are the differences
between regime's goals in Mayadin and for the greater Eurphrates River
Valley, and U.S. goals? If we have similar goals, why is deconfliction
necessary? If we have differing goals, how do we trust that the
diplomatic process that you laid out will work?
Answer. The Syrian Government's motivation for operations in the
Euphrates River Valley is no different than its motivation for
operations in western Syria: to regain control over the fractured
Syrian state and reassert President Assad's will over the Syrian
people. Although the Syrian Government is finally confronting the
Islamic State of Iraq and Syria (ISIS), make no mistake--we are not
working together with Syria or its partners, and they are not
approaching this fight in a way that will prevent ISIS' return. In
contrast, we are working ``by, with, and through'' local partners to
defeat ISIS militarily and secure, stabilize, and restore local
governance in liberated areas to prevent ISIS' return. De-confliction
measures are necessary to reduce the risk of escalatory incidents and
ensure the safety of coalition forces operating nearby. Through the
established deconfliction channels with Russia, we are able to mitigate
risk from pro-regime forces and preserve the operational safety of
coalition and coalition-supported forces. De-confliction discussions
between the United States and Russia thus far have been professional
and constructive.
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Responses to Additional Questions for the Record Submitted to
Hon. James Mattis, Secretary of Defense, by Senator Johnny Isakson
E-8 Joint Surveillance Attack Radar System (JSTARS)
Question 1. During the hearing, you mentioned that not only are the
intelligence, surveillance, and reconnaissance (ISR) requirements not
being met within U.S. Africa Command's (AFRICOM) area of
responsibility, but also that ISR requirements are not being met
worldwide. This is understandable as the number of priority
intelligence requirements far outnumber the number of platforms
available. This is only further complicated by the continued
decentralization of operations by violent extremist organizations.
Despite this, however, the Air Force has indicated its desire to divest
the E-8 Joint Surveillance Attack Radar System (JSTARS) in favor of
synchronizing a host of other platforms to provide the same
capabilities. JSTARS' unique ability to provide battle management,
command and control, and ISR capabilities through a single platform are
unparalleled and divestment should strongly be reconsidered bearing in
mind the collection gaps and ISR shortages that you stated. Do you
recommend that the Air Force continue forward with the recapitalization
of JSTARS rather than planned retirement in order to meet the ISR
demands of AFRICOM and the other combatant commands?
Answer. The Department of Defense will continue to evaluate any
changes to programs that support our warfighters with the full and open
participation of the Combatant Commands. I believe we must modernize
the required capabilities for battlefield management; command and
control; and intelligence, surveillance, and reconnaissance. As in all
low-density, high-demand capabilities, careful analysis and allocation
of these limited actions are required. This is done through an
extensive process that includes the participation of the Joint Staff,
Combatant Commanders, and the Services.
DPRK Artillery
Question 2. Even without a nuclear weapon, North Korea (DPRK) has
hundreds of conventional artillery pieces capable of attacking Seoul.
The devastation there would be catastrophic and millions of lives would
be lost. What capabilities do we have in place to counter such an
attack? Do we need additional resources and capabilities there to
protect our Korean allies and the U.S. citizens that live within the
range of DPRK artillery?
Answer. The United States and the Republic of Korea (ROK) continue
to modernize the Alliance posture in order to deter and respond to any
conventional or nuclear attack by the Democratic People's Republic of
Korea (DPRK). This includes the U.S. steady-state presence of 28,500
U.S. forces, a layered ballistic missile defense architecture, and
rotational deployment of top U.S. capabilities in and around the Korean
Peninsula. Our extended deterrence commitment to the ROK remains
steadfast, and we are committed to defending our allies using the full
range of our capabilities--including the U.S. nuclear umbrella and
conventional capabilities--against the DPRK. We have substantially
bolstered our ballistic missile defense capabilities in the Asia-
Pacific region in recent years with the deployment of an additional AN-
TPY-2 (ballistic missile warning) radar to Japan, an increased number
of deployed U.S. Navy Aegis Ballistic Missile Defense capable ships,
Patriot PAC-3 ballistic missile defense upgrades in the ROK, and
deployments of a Terminal High-Altitude Area Defense (THAAD) battery to
Guam and the ROK. The U.S.-ROK Alliance decision to operationalize the
THAAD battery is part of a continued effort to acquire critical
military capabilities to ensure the defense of both U.S. and ROK forces
and citizens living in the ROK from the increasing North Korean nuclear
and ballistic missile threats.
__________
Responses to Additional Questions for the Record Submitted to
Hon. James Mattis, Secretary of Defense, by Senator Tim Kaine
Associated Forces
Question 1. Can you please detail and list all the groups that have
been deemed associated forces under the 2001 AUMF and all the locations
where the U.S. military is involved under the 2001 AUMF? How many of
these associated forces are engaged in hostilities against the United
States, its Armed forces, or personnel? Which of these associated
forces present a direct threat to the Unites States? Is there a single
source that Congress can access to find up to date information on this
question?
Answer. The U.S. military is currently taking direct action against
the following individuals and groups under the authority of the 2001
Authorization for Use of Military Force (AUMF): al-Qaeda; the Taliban;
certain other terrorist or insurgent groups affiliated with al-Qaeda
and the Taliban in Afghanistan; al-Qaeda in the Arabian Peninsula; al-
Shabaab; al-Qaeda in Syria; and ISIS.
During the Trump administration, the United States has used
military force pursuant to the 2001 AUMF in Afghanistan, Cuba
(detention operations), Iraq, Libya, Somalia, Syria, Niger, and Yemen.
As a matter of international law, the United States is in an
ongoing non-international armed conflict with these groups and
individuals and is engaged in hostilities against them.
Counterterrorism operations against these individuals and groups are
undertaken in furtherance of U.S. national self-defense and, in some
cases, also in collective self-defense of partner States such as Iraq.
The administration is committed to keeping Congress timely and fully
informed of uses of military force pursuant to the 2001 AUMF, including
in periodic reports submitted consistent with the War Powers
Resolution.
Question 2. Please detail the process for which a new group is
identified and approved as an associated force under the 2001 AUMF.
Does such determination trigger a requirement to notify or brief
Congress?
Answer. A determination of whether a group is covered by the 2001
AUMF is made at the most senior levels of the U.S. Government only
after a careful evaluation of the intelligence concerning each group's
organization, links with al-Qaeda or the Taliban, and participation in
al-Qaeda's or the Taliban's ongoing hostilities against the United
States or its coalition partners.
The administration periodically briefs members of Congress about
U.S. operations against these groups and the legal basis for these
operations.
Question 3. The administration considers ISIS an associated force
of al-Qaeda and thus covered under the 2001 AUMF (in addition to being
covered under the 2002 AUMF). Though we disagree on this, I am further
troubled by suggestions that the administration may be expanding its
definition of associated forces to include ISIS affiliated militants or
ISIS associated forces. Previously, an associated force need to be
both: 1) an organized, armed group that has entered the fight alongside
al-Qaeda, and 2) a co-belligerent with al-Qaeda in hostilities against
the United States or its coalition partners. As such, not every group
that commits terrorist acts is an associated force and not every group
aligned with al-Qaeda is an associated force. Can you confirm that the
administration does not consider forces that are affiliated or
associated with ISIS as covered under the 2001 AUMF? Please provide the
administration's current definition of associated forces.
Answer. The administration has not determined that the 2001 AUMF
applies to any group solely on the basis that the group is an
``associated force'' of ISIS. Although branches of ISIS have emerged in
locations outside Iraq and Syria, we regard those branches in a number
of locations as being part of ISIS.
The Government's definition of associated forces remains unchanged
from the prior administration.
Coalition Partner
Question 4. Can you confirm that the current number of countries in
the counter-ISIS coalition is currently 69? Do you believe the U.S.
currently has the authority to undertake military action, outside of
treaty obligation, to protect all of these countries in hostilities
with al-Qaeda through U.S. military operations?
Answer. There are currently 70 countries in the Defeat-ISIS
Coalition. Whether and to what extent the United States would have
legal authority to undertake military action in defense of another
country would necessarily depend upon the facts and circumstances of a
specific situation. Of course, as the administration has previously
reported, the 2001 AUMF provides the authority to use force to defend
U.S. and Coalition forces engaged in the campaign to defeat ISIS to the
extent such use of force is a necessary and appropriate measure in
support of counter-ISIS operations.
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.
Congressional Reports
Question 6. In response to a question from Senator Coons regarding
public transparency on military deployments, you referred to 901
reports to the Senate for FY 2016 and an additional 175, implying 1,076
reports, for FY 2017 in the your reply. In an effort to improve upon
the communications between your Department and the Senate, could you
provide responses to the following questions:
Of the 901 reports cited for FY 2016, how many involved troop
deployments, status updates on military operations or intended
missions?
For the reports involving troop deployments, status updates on
military operations or intended missions, did these reports
also note the legal authorization for such actions? What are
the source documents requiring those reports?
Do you have any recommendations to better consolidate or improve
the process for generating and/or submitting reports on troop
deployment status updates on military operations or intended
missions and their legal authority to Congress?
Answer. I believe the process by which the Department provides
reports to Congress needs appropriate transparency and reform to enable
the Congress to conduct oversight. In that spirit, I look forward to
working with the Congress on solutions to consolidate and improve the
process for generating and submitting the needed reports on all topics
of interest to the Congress. The Deputy Secretary of Defense is leading
our efforts to improve this process.
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Responses to Additional Questions for the Record Submitted to
Hon. James Mattis, Secretary of Defense, by Senator Rob Portman
Global Engagement Center
Question 1. Secretary Mattis, as you know, the 2017 NDAA, which was
signed into law in December 2016, authorized up to $60 million to
support interagency efforts led by the State Department's Global
Engagement Center to counter propaganda and disinformation by countries
like Russia, China, and Iran--as well as terrorist groups like ISIS. I
was pleased to see Secretary Tillerson's decision to approve the GEC's
strategic plan and release funds to execute it. The State Department
also submitted a request to DoD for $40 million to support the GEC's
efforts to counter foreign disinformation and help ensure unity of
effort between DoD and the State Department. Despite the urgency of the
threat, I do not believe DoD has released these funds.
Secretary Mattis, would you agree that the dangers posed by
extremist messaging and state-sponsored information operations
represent a critical national security threat to the United
States?
Answer: I agree that extremist messaging and state-sponsored
information operations represent a national security threat. The Global
Engagement Center has the potential to play a key role in exposing and
countering extremist and state-sponsored disinformation and propaganda
aimed at countering U.S. national interests. The Department of Defense
will continue to collaborate with the Department of State and other
relevant U.S. departments and agencies to counter these threats.
Question 2. Secretary Mattis, as you know, the 2017 NDAA, which was
signed into law in December 2016, authorized up to $60 million to
support interagency efforts led by the State Department's Global
Engagement Center to counter propaganda and disinformation by countries
like Russia, China, and Iran--as well as terrorist groups like ISIS. I
was pleased to see Secretary Tillerson's decision to approve the GEC's
strategic plan and release funds to execute it. The State Department
also submitted a request to DoD for $40 million to support the GEC's
efforts to counter foreign disinformation and help ensure unity of
effort between DoD and the State Department. Despite the urgency of the
threat, I do not believe DoD has released these funds. Where does the
Department of Defense stand on executing the transfer of the $40
million for carrying out the GEC's important mandate?
Answer. The Department of Defense plans to support the Global
Engagement Center in fulfilling its statutory roles and
responsibilities by partnering with the Department of State on a
mutually agreed upon collaborative pilot program in Fiscal Year 2018 to
counter state actor disinformation and propaganda. The Department of
Defense will propose the establishment of a joint Department of Defense
and Department of State senior-level coordination group that would
determine the scope of Department of Defense-supported programs. This
proposed coordination group would be composed of relevant Department of
Defense and Department of State regional and functional offices with
equities in countering state and non-state actor disinformation and
propaganda campaigns.
Defensive Lethal Assistance to Ukraine
Question 3. Since 2014, Ukraine has struggled to defend its
sovereignty and territorial integrity against Russian aggression. I
have long supported providing Ukraine with the support it needs,
including defensive lethal military assistance, to defend itself and
believe Russia must be held accountable for its unacceptable and
destabilizing violations of Ukraine's sovereignty. Therefore, I was
very encouraged by reports that a decision by the Trump administration
to approve this vital capability was apparently imminent. Despite this
optimism, however, a a decision to provide lethal aid has not been
forthcoming. I believe you are both on the record in favor of providing
defensive lethal assistance to the Ukrainians (Tillerson said so in
response to RP question at his confirmation hearing), so I'd be curious
to hear your thoughts on where things stand. Secretary Mattis and
Secretary Tillerson, do you both still support providing defensive
lethal military assistance to the Ukrainian armed forces?
Answer. Since 2014, the United States has committed more than $750
million in security assistance including training programs to improve
Ukraine's internal defense capabilities, equipment to meet some of
Ukraine's most critical operational needs, and advisory efforts to
advance the implementation of critical defense reforms. In addition to
this extensive support, the United States has not ruled out the option
of providing weapons to Ukraine. I recently visited Kyiv and consulted
with Ukrainian leaders in order to be able to inform the President and
Secretary Tillerson in very specific terms on this issue. The
Department will continue to examine how best to use U.S. security
assistance to bolster Ukraine's ability to defend its sovereignty and
territorial integrity, and to deter Russian aggression.
Budapest Memorandum and Non-Proliferation
Question 4. Far more than just the territorial integrity of Ukraine
and the principle of respecting sovereign borders are at stake here.
When Ukraine regained its independence following the collapse of the
Soviet Union, it possessed the world's third-largest nuclear arsenal.
In 1994, the United States, Britain, Russia, and Ukraine signed the
Budapest Memorandum, which assured Ukraine's sovereignty and
territorial integrity in return for Ukraine giving up its nuclear
weapons. If the United States does not unequivocally support Ukraine's
defense of its sovereignty and undermines the value of U.S. security
assurances, what will be the impact on U.S. non-proliferation efforts
around the world? Why should a country like North Korea give up its
nuclear weapons?
Answer: The United States strongly supports Ukraine's sovereignty
and territorial integrity, including Ukraine's right to choose its own
foreign policy course. In contrast, Russia's actions continue to
threaten Ukraine's security, stability, sovereignty, and territorial
integrity. Russia must live up to its international commitments and
remove its forces from Ukraine. The impact of Russia's actions on
nuclear nonproliferation, the United States and the vast majority of
nations worldwide remain committed to the global nuclear
nonproliferation regime, with the Nuclear Non-Proliferation Treaty
(NPT) as its foundation. Ukraine made the right strategic choice to
give up its nuclear weapons in 1994, and it is imperative that the
world community continue to condemn Russia for its flagrant violation
of the understandings reached in the Budapest Memorandum.
With respect to North Korea, Kim Jung Un must recognize that the
world is united against his regime's continued possession of nuclear
weapons. There are multiple United Nations Security Council resolutions
that call on the regime to relinquish its weapons of mass destruction
capabilities and their means of delivery. North Korea must understand
that these efforts will only make it more isolated and less secure than
if it agreed to denuclearize comprehensibly, verifiably, and
irreversibly in order to rejoin the world community.
Afghanistan Strategy
Question 5. Secretary Mattis, can you please explain the
relationship between the counter-terrorism mission in Afghanistan and
our efforts to build the capacity of Afghan security forces and help
them ensure stability throughout the country.
Answer. The U.S. counterterrorism mission complements the Resolute
Support mission of train, advise, assist (TAA) to build the capacity of
the Afghan National Defense and Security Forces (ANDSF). Limited U.S.
unilateral direct action, coupled with a stronger and increasingly
capable ANDSF, helps preserve the security gains to date and
contributes to a robust, enduring partnership aimed at securing the
people and territory of Afghanistan. The Special Operations Joint Task
Force-Afghanistan (SOJTF-A) supports U.S. counterterrorism efforts
through TAA with the Afghan Special Security Forces (ASSF) and by
accompanying them on certain operations. The ASSF will continue to
conduct operations in Afghanistan using its increasing capabilities to
address both insurgent and transnational threats. The focus of SOJTF-
A's TAA mission is to build the ASSF's capacity logistics, command and
control, intelligence analysis and sharing, aviation, and
interoperability between the ASSF and conventional forces.
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CIA Memorandum for the Director: Use of Nuclear Weapons in the Vietnam
War--18 March 1966
OFFICE OF NATIONAL ESTIMATES
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Letter Expressing the Trump Administration's Opposition to S.J. Res. 41
and S.J. Res. 43
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Navy Contract Solicitation for Personnel Support, Part 1
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Navy Contract Solicitation for Personnel Support, Part 2
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