    [Senate Hearing 115-711]
    [From the U.S. Government Publishing Office]

                                                        S. Hrg. 115-711

                     REVIEWING CONGRESSIONAL AUTHORIZATIONS
                         FOR THE USE OF MILITARY FORCE

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

                                    HEARING

                                   BEFORE THE

                         COMMITTEE ON FOREIGN RELATIONS
                              UNITED STATES SENATE

                         ONE HUNDRED FIFTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                  JUNE 20, 2017

                                   __________

           Printed for the use of the Committee on Foreign Relations

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                       Available via the World Wide Web:
                           http://www.govinfo.gpo.gov

                                  __________

                        U.S. GOVERNMENT PUBLISHING OFFICE
    38-321 PDF                  WASHINGTON : 2019

    --------------------------------------------------------------------------------------

                     COMMITTEE ON FOREIGN RELATIONS

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

                                  (ii)

                                C O N T E N T S

                                  ----------
                                                                       Page

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

    Cardin, Hon. Benjamin L., U.S. Senator from Maryland.............     3

    Bellinger, Hon. John B. III, Partner, Arnold & Porter Kaye
      Scholer LLP, Washington, DC....................................     5

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

    Hicks, Hon. Kathleen H., Ph.D., Senior Vice President, Henry A.
      Kissinger Chair; and Director International Security Program,
      Center for Strategic and International Studies, Washington, DC.    12
        Prepared statement...........................................    13

                  Additional Material Submitted for the Record

    Responses to Additional Questions for the Record Submitted to
      Hon. Kathleen H. Hicks by Senator Cory A. Booker...............    39

    Letter to the Committee from Third Way...........................    41

    Statement for the Record Submitted by Human Rights First.........    47

                                 (iii)

               REVIEWING CONGRESSIONAL AUTHORIZATIONS FOR THE
                             USE OF MILITARY FORCE

                                  ----------

                             TUESDAY, JUNE 20, 2017

                                           U.S. Senate,
                                Committee on Foreign Relations,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 10:00 a.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, Isakson, Paul, Cardin,
    Menendez, 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.
        We thank our witnesses for being here and all of our
    Senators who I know care deeply about this issue. I would like
    to thank you for being here to testify. Your insights and
    experience will be helpful as we begin to reengage on this
    difficult topic.
        It has been well over a decade since 9/11, and there is an
    interest on the part of many members to revisit and refresh the
    authority we use to fight terrorism. In 2014, we saw the rise
    of ISIS, which seized territory in Iraq and Syria and has drawn
    thousands of foreign fighters and conducted, enabled, or
    inspired repeated attacks against the United States or our
    allies.
        As a result of these types of threats and others, multiple
    Presidents have used the 2001 authorization for the use of
    military force by necessity to conduct hundreds of drone
    strikes around the world and to put American troops on the
    ground in multiple countries.
        However, there are a multitude of terrorist groups
    operating today that pose a direct threat to the United States
    and have lesser connection to the 9/11 attacks. Many have
    questioned whether the 2001 AUMF covers these groups.
        I have always believed that it is important for Congress to
    exercise its constitutional role to authorize the use of force
    and that our country is better off when Congress clearly
    authorizes the wars we fight. As a matter of fact, we are
    approaching the day when an American soldier will deploy to
    combat under legal authority that was passed before they were
    born.
        In 2014, I wrote that absent congressional action, the
    President will continue to operate under an outdated
    authorization, leaving the door open for future Presidents to
    claim undue and unbounded powers that will, over time, erode
    the balance of power fundamental to our constitutional system.
    Three years later, that statement remains true. It is also one
    that I think most Members of Congress will agree with. But
    there are very real reasons why Congress has been unable to
    pass a new authority and they are worth outlining.
        First and most importantly, the 2001 AUMF continues to
    provide our military with the authority they need to protect
    American citizens from very real threats. In the past year,
    American forces have been on the ground fighting terrorism in
    at least five countries. I believe that the President has the
    authority under the 2001 AUMF to take action against ISIS, as
    the Obama administration repeatedly testified before this
    committee. The 2001 AUMF, while stretched, provides a necessary
    legal authority for us to continue this fight. We should not
    risk its expiration without replacement.
        Second, some Members of Congress will use this debate for
    the singular purpose of imposing limitations on our President.
    It is just a fact. Others may refuse to limit a President at
    war in any way. That is a fact. And that is a wide gap to
    bridge.
        Finally, many argue that while passing an AUMF may not be a
    legal necessity, it is a moral one. They believe that Congress
    must fulfill its constitutional duty of authorizing war and
    show the men and women fighting around the world that their
    elected representatives support the war. I too share many of
    those sentiments but believe we must also guard against an
    outcome that could have exactly the opposite effect. While
    Congress, in fact, strongly supports the fight against ISIS and
    has repeatedly funded the effort, the failure to bridge
    differences and to pass a new AUMF could create a false
    impression of disunity during a time of war.
        So with the backdrop of these challenges, I intend to
    conduct this debate in a way that I believe serves best our
    national interests. I hope that the administration will brief
    this committee to present their counterterrorism strategy and
    engage us constructively to ensure that any new authorization
    is appropriately tailored to serve the national interests and
    to win this fight.
        I also want to thank Senators Kaine and Flake for their
    tireless efforts. I want to thank Senator Young for presenting
    his own AUMF. And I want to thank Senator Menendez for chairing
    a hearing where we attempted a markup to do the same thing. I
    appreciate all the work that has been done to develop
    bipartisan solutions.
        Again, I want to thank you for your presence today. It is
    most useful and helpful to us, and I look forward to your
    testimony and responses to our questions.
        And with that, I would like to turn to our distinguished
    ranking member.
        And I want to thank all committee members. I think what we
    did last week on the Senate floor through intense negotiations
    struck exactly the right balance and continued to cause this
    committee and the United States Senate to reclaim our rightful
    role in setting foreign policies that are so important to our
    Nation. I want to thank everybody for that, and with that, turn
    to Senator Cardin.

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

        Senator Cardin. Well, thank you, Mr. Chairman.
        I totally concur in your comments about the actions last
    week. I think it was the United States Senate, guided by this
    committee, that did exactly what we needed to do in regards to
    the appropriate role of Congress. So I thank you very much. And
    I also thank you for holding this hearing.
        Much of what you said in your opening statement I fully
    support and agree with. There are some differences that I will
    point out in my opening statement, but I do agree that this is
    one of the most important responsibilities that we have and one
    in which hearings are very important for us to get this right.
    We cannot run away from this responsibility, and I thank you
    for holding this hearing.
        I also join you in thanking Senator Kaine and Senator Flake
    for their leadership for many years of pointing out that
    Congress has a responsibility to express itself on the use of
    military force and that the interpretations of both Democratic
    and Republican administrations on our 2001 authorization
    certainly go well beyond what Congress intended. And I thank
    them both for their leadership.
        Senator Young, thank you for your leadership.
        This committee took up this issue under Senator Menendez's
    leadership, and we did not come to an agreement. Certainly the
    administration was not supportive of what we were trying to do,
    but we attempted to come together on that issue.
        In the wake of the horrific attacks against our country on
    September 11th, 2001, Congress passed an AUMF targeting the
    perpetrators of those attacks and the Taliban who harbored them
    in Afghanistan. In 2002, Congress passed a second AUMF for the
    war in Iraq. When written, these AUMFs provided the President
    with sufficient latitude to target terrorist affiliates in
    order to better combat the threat of terrorism. Unfortunately,
    this latitude has been stretched far beyond what Congress
    intended. We are now 16 years beyond the 2001 AUMF, and yet it
    continues to be used as justification for a wide range of
    military operations. This includes military operations against
    terrorists in the Middle East, Africa, and elsewhere whose
    connections to Al Qaeda and the 9/11 attacks are tenuous at
    best.
        Mr. Chairman, let me just read what the 2001 authorization
    said: ``The President is authorized to use all necessary and
    appropriate force against those nations, organizations, or
    persons who he determines planned, authorized, committed, or
    aided the terrorist attacks that occurred on September the
    11th, 2001, or harbored such organizations or persons in order
    to prevent any future acts of international terrorism against
    the United States by such nations, organizations, or persons.''
        It was clear to me, when I voted for it, that I was giving
    the President the necessary authority to take action against
    those who attacked our country on September the 11th. It is now
    being used well, well beyond what Congress intended. There is
    no question to me. We saw in the most recent use of this in
    regards to activities in Syria certainly had nothing to do with
    the attack on our country on September the 11th. And that is
    true, as I said initially, about the interpretations under both
    the Obama administration and now under the Trump
    administration.
        The Iraq AUMF is still used, in part, as justification for
    U.S. military operations in Iraq, 14 years past the U.S.
    invasion and long after the end of the Saddam Hussein regime.
    These AUMFs are now becoming mere authorities of convenience
    for Presidents to conduct military activities anywhere in the
    world.
        This is no longer acceptable. To permit this situation to
    continue is a dereliction of Congress' duty, under the
    Constitution, to direct and regulate the President's use of his
    commander-in-chief authority in activities of war. It is an
    invasion of our responsibility to the American people to ensure
    that the United States does not stumble into war or involve
    itself in ill-conceived wars that are not ours to fight or do
    not comport with interests, needs, values, and principles of
    our great Nation. It is a failure of our commitment to our
    brave service men and women when we do not clearly define the
    battle and the objectives for which they must fight and risk
    their lives.
        This is especially the case now as the President has yet to
    tell us or the American people what his strategy is for
    defeating ISIL in Iraq and Syria but also in other relevant
    theaters like Afghanistan where violent extremist groups
    threaten U.S. interests. What we see instead is the President
    delegating his most vital responsibilities to others to decide
    what military operations are conducted and how many U.S. troops
    are to be committed to combat in foreign countries.
        It is critical to the future security of the United States
    and our friends and allies that Congress provide the President
    with proper authorities to target and combat ISIL and its
    affiliates. The 2002 Iraq AUMF should be repealed, and the
    2001, the 9/11, AUMF must be repealed and replaced with one
    that specifically targets ISIL and other terrorist groups. The
    authorities provided in the new AUMF must be tailored to allow
    the President to effectively go after direct threats to the
    United States but also to avoid granting the President
    unilateral authority to engage in operations practically
    anywhere in the world.
        Mr. Chairman, let me just point out that you and I have
    both asked the administration to present us with their
    strategy. They have yet to do that. There are numerous examples
    of where we have asked them to present to us what they need. It
    is difficult for us to carry out our responsibility unless we
    know what the commander-in-chief needs as far as the use of
    military force in combating the ISIL forces. So it is going to
    be a challenge for us. As I said, I think we need to repeal the
    2001 and replace it, but we need to know what the
    administration's strategy is and they have not done that. But
    we do know they are using the 2001 and 2002 authorizations well
    beyond what we ever intended.
        Of particular concern to me is the need for meaningful
    restrictions on deploying U.S. ground forces to combat ISIL. I
    do not believe significantly escalating our direct involvement
    in current combat operations is beneficial to actually solving
    the crisis instigated by ISIL. There is no easier or more
    assured way for the U.S. to unintentionally commit itself to a
    long-term military quagmire than this.
        As we know too well, once committed and then under attack,
    it becomes politically nearly impossible to withdraw those
    troops. Moreover, I am not at all convinced that the evolving
    threat from ISIL to us and to our friends and partners
    necessitates committing more of our brave men and women to
    ground combat operations. The need for significant combat
    military operations should diminish as ISIL's control over the
    territory is diminished and the organization shifts its focus
    to terrorist attacks around the globe because at this point,
    the battle becomes one of assisting and building local partner
    militaries and improving counterterrorism civilian security
    forces, law enforcement units, and intelligence, investigative,
    and judicial agencies, as well as combating ISIL's cyber
    activities.
        As we have heard in recent hearings, ISIL's global reach--
    the organization is moving from a physical caliphate to a
    virtual caliphate, and that is not something one fights with
    combat troops.
        For all of these reasons, I believe this hearing is
    critically important but it is equally important that we hear
    from the administration.
        The Chairman. A most fulsome statement.
        We have a vote at 11 o'clock. We actually have two votes,
    and I think what we should do is just power through those and
    keep going. So if people could just pay attention to when their
    time is up, then we will move back and forth and continue on.
        Our first witness is the Honorable John Bellinger III,
    former State Department legal advisor from 2005 to 2009. Before
    that, he was legal advisor to the National Security Council
    from 2001 to 2005. He has been before us in the past. We thank
    you so much for being here.
        Our second witnesses is the Honorable Dr. Kathleen Hicks,
    Director of International Security Program at CSIS. Dr. Hicks
    previously served at the Department of Defense during the Obama
    administration. We thank you also very much for being here.
        And as you know, you can summarize your comments, if you
    will, in about 5 minutes, and we look forward to our questions.
    But again, I appreciate your expertise, and if you would just
    begin in the order I introduced you.

      STATEMENT OF HON. JOHN B. BELLINGER III, PARTNER, ARNOLD &
                PORTER KAYE SCHOLER LLP, WASHINGTON, DC

        Mr. Bellinger. Thank you, Mr. Chairman, Ranking Member
    Cardin. I agree with your comments at the outset, and it is a
    privilege for me to be back before this distinguished
    committee.
        Mr. Chairman, I want to especially commend you for your
    efforts to reach a consensus on a new authorization against
    ISIS, and I applaud the very valuable contributions from
    Senator Kaine and Senator Flake. And I know, Senator Kaine, you
    have been at this for quite some period of time. It was a
    privilege to meet with you. And Senator Young as well for your
    recent contribution. Thank you.
        As you heard, I served as the legal advisor for the
    National Security Council in the first term of the Bush
    administration and the State Department legal advisor in the
    second term. I was in the White House situation room on 9/11,
    and I was involved in the drafting of both the 2001 and 2002
    AUMFs. And for my sins, I then spent the next 8 years engaged
    in almost daily discussions on the legal issues relating to the
    use of military force, including detention arising under both
    AUMFs.
        Sixteen years after the enactment of the 2001 AUMF and
    three years after the beginning of the U.S. conflict with ISIS,
    Congress should repeal the outdated 2001 AUMF and replace it
    with a comprehensive new AUMF that authorizes the use of force
    with appropriate limitations against named terrorist groups,
    including Al Qaeda, the Taliban, ISIS, and associated groups.
    Congress should also repeal the 2002 AUMF, which is no longer
    necessary.
        An updated AUMF is legally necessary to ensure that our
    military has clear authorization from Congress to use force
    against terrorist groups engaged in hostilities against the
    United States and to ensure that U.S. detention operations
    withstand legal challenges in U.S. courts.
        An updated AUMF should remove the limitation in the 2001
    AUMF to organizations that committed the 9/11 attacks. It is
    increasingly difficult--and I have been there--to demonstrate
    that new terrorist groups that have emerged in the last few
    years are associated with Al Qaeda. It is not clear that the
    2001 AUMF authorizes the use of force against ISIS because ISIS
    did not exist, at least in its current form, in 2001 and was
    not the group that committed the 9/11 attacks. A new AUMF that
    specifically authorizes the use of force against ISIS would
    also provide a clearer legal basis for detention of members of
    ISIS.
        An updated AUMF should authorize the President to use all
    necessary force against named terrorist groups and associated
    organizations that have attacked or have an intention to attack
    the United States or U.S. persons. The AUMF should include a
    list of specific groups, which would presently include at least
    the Taliban, Al Qaeda, and ISIS, and may include other named
    groups, but allow the President to use force against additional
    organizations if he notifies Congress that he has determined
    that the additional organizations are associated with the named
    organizations and are engaged in hostilities or plan to engage
    in hostilities against the United States.
        In my view, a new AUMF should not be limited geographically
    to certain countries. Even if a new AUMF does not limit the use
    of force to certain countries, the United States is still
    required by international law to limit its use of force in or
    against other countries.
        As a purely legal matter, I would oppose a sunset
    provision. A sunset creates legal uncertainty for the President
    and the military. However, I can certainly understand that some
    kind of a sunset or review provision may be politically
    necessary to achieve consensus on a new AUMF.
        I would oppose provisions in a new AUMF that would seek to
    restrict or micromanage the use of force by the President and
    the military such as an absolute prohibition on ground combat
    operations. If a limitation is necessary, I would support a
    clearer prohibition, such as ``This authorization does not
    include authorization for the ground invasion or occupation of
    any sovereign country or part thereof without further
    congressional authorization.''
        A new AUMF might include provisions providing certain
    procedural protections for the use of lethal force against
    Americans who join terrorist groups.
        It might also authorize but also provide procedural
    safeguards for detention of terror suspects captured by the
    military outside the United States and certain congressional
    reporting requirements.
        Finally, Congress should also make it a priority to revise
    and update the War Powers Resolution, which the National War
    Powers Commission, which was a bipartisan commission chaired by
    former Secretaries of State Baker and Warren Christopher,
    called impractical and ineffective. And I applaud the War
    Powers Consultation Act of 2014, which was drafted by Senators
    McCain and Kaine, to implement the recommendations of the
    commission.
        Members of Congress have understandable concerns about
    approving a broad, new authorization and extending what many
    view as a forever war. However, I am convinced that Congress
    can come together to agree on a new AUMF that provides our
    military forces the clear legislative authorization and
    congressional support they need to defend the United States
    against Al Qaeda, ISIS, and other terrorist groups rather than
    continuing to rely on a 16-year-old authorization.
        Thank you for inviting me here today, and I look forward to
    your questions.
        [Mr. Bellinger's prepared statement follows:]

                  Prepared Statement of John B. Bellinger III

        Mr. Chairman, Ranking Member Cardin, and members of the Committee,
    thank you for inviting me to testify today about congressional
    authorizations regarding the use of military force against terrorist
    groups. It's a privilege for me to appear again before this
    distinguished committee.
        Mr. Chairman, I especially want to commend you for your
    perseverance to reach a consensus on a new Authorization to Use
    Military Force against ISIS. And I applaud the very valuable
    contributions by Senators Flake and Kaine in S.J. 43 and by Senator
    Young in S.J. 31.
        To start with my bottom line, I believe it is very important as a
    legal matter that Congress pass a new AUMF against terrorist groups
    that repeals the 2001 Authorization to Use Military Force against
    terrorist groups and the 2002 Authorization to Use Military Force in
    Iraq and replaces them with a comprehensive new AUMF that authorizes
    the use of force against the Taliban, Al Qaida, ISIS, and associated
    groups.
        I have spent much of my time in government working on legal issues
    relating to fighting terrorism and specifically arising under the 2001
    and 2002 AUMFs. I served as the Legal Adviser to the National Security
    Council from 2001 to 2005 and later as the Legal Adviser to the
    Department of State from 2005 to 2009, a position to which I was
    confirmed by the Senate. I was in the White House Situation Room during
    the 9-11 attacks and was later involved in drafting both the 2001 and
    2002 AUMFs. Between 2001 and 2009, I engaged on an almost daily basis
    in discussions about legal issues relating to the use of military
    force, including detention, arising under both AUMFs.\1\
    ---------------------------------------------------------------------------
        \1\ I previously served as Counsel for National Security Matters in
    the Criminal Division of the Department of Justice (1997-2001); Of
    Counsel, Select Committee on Intelligence, U.S. Senate (1996); General
    Counsel, Commission on the Roles and Capabilities of the U.S.
    Intelligence Community (1995-1996); and Special Assistant to Director
    of Central Intelligence William Webster (1988-1991).
    ---------------------------------------------------------------------------
        As the committee knows, the 2001 AUMF, which was passed by Congress
    on September 14, 2001 only days after the 9-11 attacks and signed by
    President Bush on September 18, 2001, authorizes 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 11, 2001, or
    harbored such organizations or persons, in order to prevent any future
    acts of international terrorism against the United States by such
    nations, organizations or persons.''
        The 2002 AUMF focused on Iraq and the failure of Saddam Hussein to
    comply with Iraq's obligations under a series of U.N. Security Council
    Resolutions. The 2002 AUMF, which was signed by President Bush on
    October 16, 2002, authorized the President to ``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.
        On the one hand, the 2001 AUMF is very broad. It authorizes ``ALL
    necessary force'' (emphasis added) without restriction as to type of
    force or geography. It also has no termination date. But it has one
    important limitation: it authorizes force ONLY against nations,
    organizations, and persons who planned, authorized, committed, or aided
    the 9-11 attacks (or harbored such organizations or persons). In other
    words, the 2001 AUMF requires a nexus to the 9-11 terrorist attacks.
        For the last sixteen years, the 2001 AUMF has provided statutory
    authority for a very broad range of U.S. counterterrorism operations
    against persons and terrorist groups in at least seven countries,
    including the invasion of and continued military operations in
    Afghanistan; more than 500 drone strikes in Afghanistan, Pakistan,
    Yemen, Somalia, Syria, Iraq, and Libya; and detention of thousands of
    individuals in Afghanistan, Guantanamo Bay, and elsewhere.
        The 2001 AUMF continues to serve a very important legal purpose.
    But as time passes, it is becoming increasingly outdated. It does not
    provide clear legal authority to use force against terrorist groups
    that have been formed or expanded after the 9-11 attacks, such as ISIS.
    When considering whether a potential counterterrorism action is
    authorized by the 2001 AUMF, Executive branch lawyers have spent
    countless hours debating whether the targeted individual or group is
    associated or affiliated or co-belligerents with the organizations that
    committed the 9-11 attacks, which principally means Al Qaida.
        For more than a decade, including while I was still in government
    and since leaving government, I have advocated revising the 2001 AUMF
    in order to update it to address terrorist threats that have emerged
    after 9-11 and to clarify its parameters. Nearly seven years ago, in
    2010, I wrote an op-ed in the Washington Post entitled ``A
    Counterterrorism Law in Need of Updating,'' in which I argued that the
    2001 AUMF should be updated because it provides ``insufficient
    authority for our military and intelligence personnel to conduct
    counterterrorism operations today and inadequate protections for those
    targeted or detained, including U.S. citizens. . . . As U.S. forces
    continue to target terrorist leaders outside Afghanistan, it is
    increasingly unclear whether these terrorists, even if they are
    planning attacks against U.S. targets, are the same individuals, or
    even part of the same organization, behind the Sept. 11 attacks.'' \2\
    ---------------------------------------------------------------------------
        \2\ John B. Bellinger III, ``A Counterterrorism Law in Need of
    Updating,'' Washington Post, November 26, 2010.
    ---------------------------------------------------------------------------
        Of course, the President has ample authority as Chief Executive and
    Commander-in-Chief under Article II of the Constitution to order the
    use of military force to defend the United States, U.S. nationals, and
    U.S. interests against terrorist threats. Although I will not try to
    explain the legal basis for every counterterrorist action by the last
    three Presidents, it is likely that all or most of their actions could
    have been legally justified under Article II alone, without reliance on
    congressional authorization. But every constitutional lawyer will agree
    that the President has stronger legal authority--as well as greater
    political legitimacy--when he orders the use of military force with the
    explicit authorization of Congress, rather than based solely on his
    inherent constitutional authorities.
        The need to update the 2001 AUMF has become even clearer after the
    rise of ISIS in 2014. It is not clear that the 2001 AUMF authorizes the
    use of force against ISIS because ISIS did not exist (in its current
    form) in 2001 and was not the group that committed the 9-11 attacks.
    And it is questionable whether ISIS is associated with or a co-
    belligerent of Al Qaida, given that Al Qaida has repudiated ISIS.
        When President Obama first ordered air strikes against ISIS in Iraq
    in August 2014, in his report to Congress pursuant to the War Powers
    Resolution, he initially cited only his Article II authority as the
    legal basis for the use of force.\3\ In September 2014, however, faced
    with the War Powers Resolution's 60-day termination provision, the
    White House announced that the use of U.S. Armed Forces against ISIS
    actually was specifically authorized by Congress in the 2001 AUMF
    against Al Qaida and the 2002 AUMF against Iraq because ISIS, while not
    associated with Al Qaida, was a descendant of Al Qaida.\4\ This
    interpretation relieved Congress from having to vote on a new AUMF
    against ISIS before the 2014 mid-term elections, but the
    Administration's reliance on the 2001 and 2002 AUMFs as specific
    congressional authorization was widely viewed as a very strained legal
    interpretation.\5\ \6\
    ---------------------------------------------------------------------------
        \3\ Letter from the President--War Powers Resolution Regarding
    Iraq, August 8, 2014.
        \4\ White House Press Briefing, September 11, 2014, In December
    2014, the White House issued a more detailed explanation of its legal
    rationale entitled ``Report on the Legal and Policy Frameworks Guiding
    the United States Use of Military Force and Related National Security
    Operations.''
        \5\ Bruce Ackerman, ``Obama's Betrayal of the Constitution,'' New
    York Times, September 12, 2014,
        \6\ Ben Wittes, ``Not Asking the Girl to Dance,'' Lawfare,
    September 10, 2014.
    ---------------------------------------------------------------------------
        In February 2015, while continuing to insist that existing
    congressional authorizations provided all the authority he needed to
    use military force against ISIS, President Obama submitted a draft
    congressional authorization to Congress that would specifically
    authorize the use of force against ISIS. The President's proposal did
    not limit the use of force to specific countries, but it did include
    two significant restrictions. First, it did not authorize ``enduring
    offensive ground combat operations'' (a term that was not defined).
    Second, it terminated three years after the date of enactment.
    President Obama's proposal was also limited to authorizing use of force
    against ISIS. It did not repeal or revise the 2001 or 2002 AUMFs. In
    his submittal letter to Congress, President Obama stated ``Although my
    proposed AUMF does not address the 2001 AUMF, I remain committed to
    working with the Congress and the American people to refine, and
    ultimately repeal, the 2001 AUMF. Enacting an AUMF that is specific to
    the threat posed by ISIL could serve as a model for how we can work
    together to tailor the authorities granted by the 2001 AUMF.''
        President Obama's proposal was not passed by either the Senate or
    the House. Members of Congress raised different concerns about the
    proposal, but in general terms, some members thought that it was too
    broad because it authorized open-ended use of the US military without
    geographic limits. Other members objected that the sunset provision and
    prohibition on ``enduring offensive ground combat operations'' imposed
    restrictions on the President that did not previously exist in the 2001
    AUMF.
    Need for an Updated Comprehensive Counterterrorism AUMF
        Sixteen years after the enactment of the 2001 AUMF and three years
    after the beginning of the U.S. conflict with ISIS, Congress should
    repeal the outdated 2001 AUMF and replace it with a comprehensive new
    Authorization to Use Military Force that authorizes the use of force
    against named terrorist groups including Al Qaida, the Taliban, ISIS,
    and associated groups, with appropriate limitations. Congress should
    also repeal the 2002 AUMF, which is no longer necessary. An updated
    AUMF is legally necessary to ensure that our military has clear
    statutory authorization to use force against new terrorist groups that
    threaten violence against the United States and to ensure that U.S.
    military operations, including detention, withstand legal challenges in
    U.S. courts.
        An updated AUMF should remove the limitation in the 2001 AUMF to
    organizations that committed the 9-11 attacks. As I have discussed
    above, it is increasingly difficult to demonstrate that new terrorist
    groups that have emerged in the last few years, such as ISIS, are
    associated with Al Qaida. A new AUMF should authorize the use of force
    against new groups that pose significant threats of violence to the
    United States whether they are associated with Al Qaida or not.
        A new AUMF is especially important if the United States detains
    members of new terrorist groups such as ISIS.\7\ If members of such
    groups are able to challenge their detention in US courts, they will
    undoubtedly argue that ISIS is not covered by the 2001 AUMF. A new AUMF
    that specifically authorizes the use of force against ISIS would
    provide a clear legal basis for detention of members of ISIS.
    ---------------------------------------------------------------------------
        \7\ See Jack Goldsmith, ``The Practical Legal Need for an ISIL
    AUMF,'' Lawfare, February 8, 2017.
    ---------------------------------------------------------------------------
        Members of Congress have understandable and valid concerns about
    approving a broad new authorization and extending what many view as a
    ``Forever War.'' However, I am convinced that Congress can come
    together to agree on a new AUMF that provides our military the clear
    legislative authorization, with appropriate limitations, they need to
    defend the United States against Al Qaida, ISIS, and associated
    terrorist groups.
        An updated AUMF should authorize the President to use all necessary
    force against named terrorist groups and associated organizations that
    have attacked or have an intention to attack the United States or U.S.
    persons. The AUMF should include a list of specific groups (which would
    presently include at least the Taliban, Al Qaida, and ISIS, and may
    include other named groups) but allow the President to use force
    against additional organizations if he notifies Congress (in either
    public or classified form) that he has determined that the additional
    organizations are associated with one of the named organizations and
    are engaged in hostilities or plan to engage in hostilities against the
    United States.

    Potential Limitations
        Geography.  A new AUMF should not be limited geographically to
    certain countries. Although I fully appreciate that many members of
    Congress may be reluctant to vote to authorize the use of force in a
    potentially unlimited number of countries, terrorist groups move easily
    from country to country and will simply move to countries where
    Congress has not authorized the use of force. Even if a new AUMF does
    not limit the use of force to certain countries, the United States is
    still required by international law to limit its use of force in or
    against other countries, as I discuss in further detail below.

        Sunset.   President Obama's draft ISIS-specific AUMF proposed a
    three-year sunset, and several congressional drafts of AUMFs have also
    included sunsets of varying duration. As a former executive branch
    lawyer, I would oppose a sunset provision from a legal perspective. A
    sunset creates legal uncertainty for the President and the military.
    Moreover, a sunset provision may telegraph a lack of political resolve
    to the terrorist groups who threaten us. It would have been unthinkable
    for Congress to have limited its declarations of war against Germany
    and Japan to a term of years. Having said this, I appreciate that many
    members may be highly uncomfortable voting to approve an open-ended
    authorization, especially in light of the wide range of
    counterterrorism activities that have been conducted pursuant to the
    2001 AUMF over the last sixteen years. I can understand that some kind
    of a sunset or review provision may be politically necessary to achieve
    consensus on a new AUMF.

        Scope of Military Force.  As an executive branch lawyer, I would
    oppose provisions in a new AUMF that would seek to restrict or
    micromanage the use of force by the President and the military, such as
    an absolute prohibition on ground combat operations. The President and
    the military need flexibility to conduct necessary military operations
    to defend the United States. That said, I can understand that Congress
    would not want to authorize in a counterterrorism AUMF the invasion and
    occupation of additional countries, such as happened in Afghanistan and
    Iraq. The prohibition in President Obama's proposed 2015 AUMF on
    ``enduring offensive ground combat operations'' seemed very vague to
    me. If a limitation is necessary, I would support a clearer
    prohibition, such as ``This authorization does not include
    authorization for the ground invasion and occupation of any sovereign
    country or part thereof without further congressional authorization.''
    A restriction on occupation could also be a useful signal that the
    United States does not seek to seize sovereign territory or resources
    of any Islamic country.

        Use of Force Against Americans.  Although not strictly necessary, a
    new AUMF might include certain restrictions on the use of lethal force
    or detention of U.S. citizens who join terrorist groups such as Al
    Qaida and ISIS. It is clearly legally permissible for the U.S. military
    to target without judicial approval U.S. citizens who have joined a
    foreign terrorist organization outside the United States, but Congress
    might reasonably require certain due process standards within the
    Executive branch, such as that the specific targeting of a U.S. citizen
    require the approval of the Attorney General based on a determination
    that the individual poses a serious threat to the United States.

        Detention.  Although the 2001 AUMF does not specifically mention
    authority to detain, it is now well accepted by U.S. courts that the
    words ``all necessary and appropriate force'' include the authority not
    only to kill but to detain. Although not strictly necessary as a legal
    matter, I believe it would still be legally helpful, both for the
    military and for potential detainees, for a new AUMF to specifically
    authorize detention of terror suspects captured by the military outside
    the United States and should specify some basic parameters, such as who
    can be detained and for how long and certain basic procedural
    safeguards against mistaken or unnecessary detention.\8\
    ---------------------------------------------------------------------------
        \8\ I also made this argument when I recommended updating the 2001
    AUMF in 2010. John B. Bellinger III, ``A Counterterrorism Law in Need
    of Updating,'' Washington Post, November 26, 2010.

        Transparency and Reporting.  It would also be reasonable and
    valuable for Congress to include reporting requirements in a new AUMF
    that would require the President to report, in public and classified
    forms, the counterterror activities conducted pursuant to the new AUMF,
    including information regarding additional groups against which the
    President plans to use force and countries where he plans to use force
    under the AUMF, specific terror suspects targeted, captured or killed,
    ---------------------------------------------------------------------------
    and numbers of civilians killed.

    International Law
        It is important for Congress to understand that the AUMF only
    authorizes the use of force under U.S. domestic law. The United States
    must separately comply with international law rules governing the use
    of force. The U.N. Charter, a treaty to which the U.S. is a party,
    prohibits the use of force in or against another U.N. member state
    unless the state has consented, the U.N. Security Council has
    authorized the use of force, or the use of force is in self-defense in
    response to an armed attack or imminent armed attack. It is important
    that the United States observe international law rules governing the
    use of force not only because the U.S. has agreed to be bound by the
    U.N. Charter but because we want other countries like Russia and China
    to follow the same rules.
        As I explained in the Sixth Annual Lloyd Cutler Rule of Law Lecture
    last November:

            If the United States violates or skirts international law
            regarding use of force, it encourages other countries--like
            Russia or China--to do the same and makes it difficult for the
            United States to criticize them when they do so. If the United
            States ignores international law, it also makes our friends and
            allies who respect international law--such as the UK, Canada,
            Australia, and the EU countries--less likely to work with us.
            Unlike Russia and China, the United States has many friends and
            allies who share our values, including respect for the rule of
            law. But we lose our friends when we do not act consistent with
            law and our shared values.\9\
    ---------------------------------------------------------------------------
        \9\ John B. Bellinger III, ``Law and the Use of Force: Challenges
    for the Next President,'' Sixth Annual Lloyd Cutler Rule of Law
    Lecture.
    ---------------------------------------------------------------------------
    Updating the War Powers Resolution
        In addition to revising and updating the AUMF against terrorist
    groups, Congress should also make it a priority to revise and update
    the War Powers Resolution, which has been increasingly ignored or
    stretched by recent Presidents. President Obama, for example, claimed
    that U.S. military actions in Libya did not constitute ``hostilities''
    for purposes of the War Powers Resolution.\10\
    ---------------------------------------------------------------------------
        \10\ ``White House Defends Continuing U.S. Role in Libya
    Operation,'' The New York Times, June 15, 2011.
    ---------------------------------------------------------------------------
        Congress should review the very valuable report of the National War
    Powers Commission, a bi-partisan commission chaired by former
    Secretaries of State James Baker and Warren Christopher, which issued a
    report in 2008 that called the War Powers Resolution ``impractical and
    ineffective.'' The Commission stated that no President has treated the
    Resolution as mandatory and that ``this does not promote the rule of
    law.'' They recommended the Resolution be repealed and replaced with a
    mandatory consultation process. In 2014, Senators McCain and Kaine
    introduced the War Powers Consultation Act of 2014 to implement the
    Commission's recommendations; their bill was referred to this
    committee.
        In addition to updating the 2001 AUMF, I hope that this Committee
    will recognize the need to update the War Powers Resolution. Any
    general reform of the War Powers Resolution must address contemporary
    conflicts and take into account increasing congressional reluctance to
    vote to authorize the use of force.
    Conclusion
        I appreciate the opportunity to appear before the Committee today.
    I hope that the Committee and the Senate will be able to reach
    consensus on a revised and updated Authorization to Use Military Force
    against terrorist groups engaged in hostilities against the United
    States.

        The Chairman. Thank you very much.

        STATEMENT OF HON. KATHLEEN H. HICKS, PH.D., SENIOR VICE
    PRESIDENT; HENRY A. KISSINGER CHAIR; AND DIRECTOR INTERNATIONAL
       SECURITY PROGRAM, CENTER FOR STRATEGIC AND INTERNATIONAL
                        STUDIES, WASHINGTON, DC

        Dr. Hicks. Chairman Corker, Ranking Member Cardin,
    distinguished members of the committee, I appreciate the
    opportunity to testify before you today. The subject of this
    hearing, authorization for the use of military force, is a
    critical one that fails to receive the attention that it
    deserves. Open deliberations over the decision to use military
    force have been foundational to our democracy since its
    establishment.
        I will focus my testimony today on the imperative for a new
    authorization for counterterrorism operations, the essential
    constitutional role Congress must play in exercising its war
    powers through passage of a new AUMF, and the factors Congress
    should consider in developing an effective provision. I
    approach this issue not as a lawyer, but as a former defense
    policymaker, implementer, and evaluator, including
    participtation on decisions involving the use of U.S. military
    forces in counterterrorism under the existing AUMFs.
        The United States faces an array of threats from violent
    extremist groups that necessitate counterterrorism operations
    in disparate parts of the world. Current U.S. counterterrorism
    activities generally operate under provisions of the 2001 AUMF,
    which was intended to sanction force against the individuals,
    groups, and states involved in the planning and execution of
    the September 11 attacks. To create a legal justification for
    U.S. military action taken against terrorist groups that have
    emerged since 9/11, notably including the Islamic State and Al
    Shabaab, the executive branch has relied on an ever-expanding
    interpretation of the category of Al Qaeda associated forces
    provided for under the 2001 AUMF. Relying on a 16-year-old
    authorization focused on countering core Al Qaeda for current
    or potential operations against the Islamic State and other
    emergent terrorist threats jeopardizes our Nation's principal
    belief in the rule of law and thereby risks the legitimacy of
    the institutions designed to create, carry out, and enforce
    such laws.
        Alongside the courts, the United States Congress can serve
    as a critical safeguard against any perceived attempts to
    fundamentally alter the quality of civilian control of the
    military in this country. The path to reviving the vigorous
    exercise of civilian control through congressional war powers
    should start by repealing and replacing the 2001 AUMF.
        Civilian control of the military is not just an end unto
    itself. Military force must be tied to policy objectives if it
    is to succeed. The 16-year reliance on the 2001 AUMF, the
    longest-standing congressional authorization for the use of
    force in American history, suggests a failure on the part of
    the Nation's political leaders to bear their strategic
    responsibility. A robust congressional role in use of force
    decisions can spur consideration of policy alternatives, raise
    important strategic considerations, and build the public
    support necessary for sustainable national security strategy.
    It strengthens our democracy and our legitimacy.
        Most Members of Congress were elected after the 2001 AUMF
    and have not been party to a serious discussion on AUMF.
    Consequently, the American public has not had an opportunity to
    witness and participate in an open debate over the Nation's
    approach to authorizing force in support of its
    counterterrorism objectives in some time. The administration's
    submission of a strategy to defeat ISIS, as required by the
    fiscal year 2017 omnibus appropriations bill, will be critical
    for setting the stage for that public debate. What is our goal?
    How should we go about accomplishing it? What is the role of
    U.S. military force alongside that of other national and
    international actors and tools? Without an honest and frank
    national discourse on our strategy, we run the risk of the
    executive branch's activities separating not only from the
    legal basis upon which its use of force rests, but also a
    disconnect between the will of the people and the military
    actions pursued by its duly elected government.
        To be effective, AUMF should strike an appropriate balance
    between the national command authority's ability to rapidly
    respond to emergent national security threats and Congress'
    ability to exercise appropriate oversight. Specifically,
    Congress should ensure any AUMF it considers address key issues
    in the following areas: targeted entities; geographical
    limitations; special U.S. military force limitations, such as
    regarding combat roles; reporting requirements; associated
    detention issues; and sunset provisions.
        Stakeholders across the political spectrum rightly support
    a new AUMF to create legal clarity and political legitimacy for
    the use of American military force. The range of current
    proposals originating from the Senate and House offer viable
    pathways for repealing and replacing the 2001 AUMF and
    repealing the 2002 AUMF. The time is now ripe for
    reconsideration of the 2001 AUMF and discussion of
    congressional war powers.
        Thank you in particular for your efforts to draw attention
    to this matter and for calling this hearing today.
        I have walked through in my written statement my views on
    the various issues I referenced. I will simply say Mr.
    Bellinger and I agree on many issues. There are some areas of
    some disagreement, but I think most importantly we agree that
    there is an imperative to get to a solution on a new AUMF and
    move forward.
        Thank you very much. I am open to your questions.
        [Dr. Hicks's prepared statement follows:]

                    Prepared Statement of Kathleen H. Hicks

        Chairman Corker, Ranking Member Cardin, and distinguished members
    of the committee, I appreciate the opportunity to testify before you
    today. The subject of this hearing--authorization for the use of
    military force (AUMF)--is a critical one that fails to receive the
    attention it deserves. Open deliberations over the decision to use
    military force have been foundational to our democracy since its
    establishment. I will focus this written statement on the imperative
    for a new authorization for counterterrorism operations, the essential
    constitutional role Congress must play in exercising its war powers
    through passage of a new AUMF, and the factors Congress should consider
    in developing an effective provision. I approach this issue not as a
    lawyer but as a former defense policy maker, evaluator, and
    implementer, including on decisions involving the use of U.S. military
    forces in counterterrorism.
    The Need for a New AUMF
        The United States faces an array of threats from violent extremist
    groups that necessitate counterterrorism operations in disparate parts
    of the world. Current U.S. counterterrorism activities in Afghanistan,
    Iraq, Syria, Libya, Yemen and elsewhere generally operate under
    provisions of the 2001 AUMF, which was intended to sanction force
    against the individuals, groups, and states involved in the planning
    and execution of the September 11 attacks. To create a legal
    justification for U.S. military action taken against terrorist groups
    that have emerged since 9/11, notably including the Islamic State and
    Al Shabab, the executive branch has relied on an ever-expanding
    interpretation of the category of al-Qaeda ``associated forces''
    provided for under the 2001 AUMF. Relying on a 16-year old
    authorization focused on countering ``core'' al-Qaeda for current or
    potential operations against the Islamic State and other emergent
    terrorist threats strains credulity. It jeopardizes our nation's
    principled belief in the rule of law and thereby risks the legitimacy
    of the institutions designed to create, carry out, and enforce such
    laws.
        Beyond the immediate issue of replacing the 2001 AUMF and repealing
    the 2002 AUMF, the need for revitalizing the whole of Congress' war
    powers has never been more essential. As I testified before the Senate
    Armed Services Committee earlier this year, ``The United States
    Congress, the nation's statutes and courts, the professionalism of our
    armed forces, and the will of the people are critical safeguards
    against any perceived attempts to fundamentally alter the quality of
    civilian control of the military in this country.'' The path to
    reviving the vigorous exercise of civilian control through
    congressional war powers should start by repealing and replacing the
    2001 AUMF.
        Civilian control of the military, deeply rooted in our nation's
    history and constitution, is not just an end to itself. Military force
    must be tied to policy objectives and embedded in a broader foreign
    policy strategy if it is to succeed. In accordance with Clausewitz's
    dictum that war is the continuation of politics by other means,
    Congress and the President are responsible for providing the strategic
    political leadership needed to shape the employment of arms. Yet the
    sixteen-year reliance on the 2001 AUMF--the longest-standing
    congressional authorization for the use of force in American history-
    suggests a failure on the part of the nation's political leaders to
    execute this responsibility. A robust congressional role in use of
    force decisions can spur consideration of policy alternatives, raise
    important strategic considerations, and build the public support
    necessary for sustainable national security strategy. It strengthens
    our democracy and our legitimacy.
        Most members of Congress were elected after the 2001 AUMF and have
    not been party to a serious discussion on AUMF. Consequently, the
    American public has not had an opportunity to witness and participate
    in an open debate over the nation's approach to authorizing force in
    support of its counterterrorism objectives in some time. The
    administration's submission of a strategy to defeat ISIS, in accordance
    with Congress's mandate in the FY2017 Omnibus., is a critical
    associated element to set the stage for that public debate. Without an
    honest and frank national discourse, we run the risk of the executive
    branch's activities separating not only from the legal basis upon which
    its use of force rests, but also a disconnect between the will of the
    people and the military actions pursued by its duly-elected government.
    Essential AUMF Elements
        To be effective, AUMF should strike an appropriate balance between
    the national command authority's ability to rapidly respond to emergent
    national security threats and Congress's ability to exercise
    appropriate oversight. Specifically, Congress should ensure any AUMF it
    considers address key issues in the following areas:

      Targeted entities;

      Geographical limitations;

      Special US military force limitations, such as combat roles;

      Reporting requirements;

      Associated detention issues; and

      Sunset provisions.

        There are several current proposals for AUMF addressing some or all
    of these issues. In particular, the Kaine-Flake provision serves as the
    most comprehensive starting point for developing an approach that
    balances oversight with the need for operational flexibility. The
    related proposals by Senator Young and Representative Schiff complement
    the Kaine-Flake proposal in key areas. Where a current proposal appears
    relatively advantageous, I attempt to highlight it below.
    Targeted Entities
        It is important that any proposed authorization clearly identify
    the targeted entities. I believe that those entities should include al-
    Qaeda, the Taliban, and the Islamic State of Iraq and Syria (ISIS).
    However, an authorization should not be limited to these entities. As
    in 2001, it must address the thorny issue of ``associated forces.'' In
    addition to creating a group of ``initial associated persons or
    forces,'' the proposed Kaine-Flake legislation provides a pathway for
    the President to identify additional entities while allowing the
    Congress to play a meaningful and appropriate oversight role. I believe
    this approach meets the principle of balancing prudent oversight and
    effective execution.
        Use of force against nation-state belligerents, such as the U.S.
    naval and air strikes conducted against the Syrian regime, should be
    debated authorized separately rather than contained under this AUMF.
    Geographical Limitations
        In addition to determining who the President is authorized to use
    force against, it would be wise for Congress to require the President
    to justify where he or she seeks to execute a use of force under the
    AUMF. The Kaine-Flake legislation authorizes force in Afghanistan,
    Iraq, Syria, Somalia, Libya, and Yemen and creates a straightforward
    procedure that allows the executive to expand operations into
    additional territories while providing the Congress with effective
    oversight. I believe this basic approach-geographic specification and a
    procedure to extend it- is appropriate and operationally feasible.
    U.S. Force Limitations
        It would be unwise to constrain future military commanders
    unnecessarily in the options they could put forward to civilian leaders
    to achieve operational goals. At the same time, it is appropriate and
    indeed wise for Congress to create a framework that conveys the will of
    the American public regarding the parameters of such force employment.
        Employing US forces in ground combat operations has been a
    persistent source of debate and concern for the American public. It is
    thus appropriate for a new AUMF to create a most stringent notification
    requirement for the President's use of ground forces in combating
    terrorist groups. Representative Schiff's proposed legislation allows
    the executive the ability to exercise an informed judgment on ground
    combat force deployments while also ensuring that Congress be notified
    of such an action as soon as possible, a faster reporting requirement
    than exists for other actions authorized by an AUMF. Significantly, the
    proposed legislation's definition of ``ground forces in a combat role''
    provides needed flexibility by excluding a range of activities that
    have been generally accepted as below the threshold of greatest
    concern. I recommend the Senate consider adopting a provision into its
    AUMF along the lines that Representative Schiff has delineated.
        It is reasonable for Congress to seek notification as soon as
    possible when any US combat mission--from the air, ground, or sea--is
    undertaken outside of acknowledged theaters of ongoing U.S. military
    conflict. I thus believe Congress should consider an ``as soon as
    possible'' notification requirement when the executive branch has used
    air or sea forces in a combat role outside of designated operational
    theaters but otherwise within the AUMF's scope. Such a requirement
    would be less geographically restrictive than the ASAP notification for
    ground force use in a combat role, allowing greater flexibility in
    designated operational theaters for air- and sea-based combat
    operations. Like the ground combat force notification, air and naval
    combat forces would need to be defined in a reasonable way to exclude
    special operations forces, intelligence, surveillance, and
    reconnaissance missions, and other roles that fall below a reasonable
    interpretation of the threshold for combat forces. Strikes from the air
    or sea conducted by U.S. conventional forces against targets in Yemen
    might constitute one example of an action otherwise authorized but
    about which Congress would want immediate notification.
    Reporting and Disapproval Requirements
        Beyond the ASAP notification for combat uses (globally for ground
    forces and geographically restricted for air and sea forces), any
    proposed AUMF should have a regular reporting requirement to ensure
    that there is not an unchecked expansion by the executive of military
    operations and to keep the public informed regarding the direction of
    operations. The requirements across the proposals currently before the
    House and Senate vary, but the specific provisions matter less than
    ensuring there is a meaningful reporting process in a new AUMF.
    Authority for Detention
        Congress should consider the detention implications of AUMF as it
    deliberates over possible provisions. It should be clearly understood
    how a President might interpret his authority for detention and
    judicial proceedings as it is associated with the AUMF.
    Sunset
        Finally, a new AUMF should include a sunset provision. Congress
    must not resign itself to an inability to legislate on use of force
    matters. The authority granted by the Flake-Kaine proposal expires
    after five years while the authority proposed by Representative Schiff
    expires after three years. The three- to five-year timeframe for sunset
    and passage of new authorization is appropriate for ensuring Congress
    is an active partner in use of force decisions, ensuring the
    authorization is aligned to changing geopolitical and other realities,
    and creating stability for military planners.
    Conclusion
        The time is ripe for reconsideration of the 2001 AUMF and
    congressional war powers. Congress's role in exercising civilian
    control of the military is fundamental to our government. Stakeholders
    across a broad political spectrum rightly support a new AUMF to create
    legal clarity and political legitimacy for the use of American military
    force. The range of current proposals originating from the Senate and
    House offer viable pathways for repealing and replacing the 2001 AUMF
    and repealing the 2002 AUMF. Our constitutional republic relies on a
    vibrant discourse between the executive and the legislative branches on
    issues of use of force.The public should expect it. Thank you for your
    efforts to draw attention to this matter, by calling hearings and
    engaging the executive branch, experts, and the public on the AUMF, war
    powers, and U.S. counterterrorism strategy.

        The Chairman. Thank you both.
        I am going to reserve my time for interjections.
        It is my understanding the minority party is not agreeing
    for us to go past noon. I understand. The health care issue--
    there is some bunking up that is occurring. So we are going to
    remain 5 minutes strict. Please do not ask questions that end
    at 5 minutes and move on.
        And I really hate it. This is a serious discussion and a
    serious hearing, and we may need to reconvene. But we thank you
    both for being here.
        With that, Senator Cardin.
        Senator Cardin. Mr. Chairman, again I agree with you. I
    think this subject needs the open hearings in our committee. So
    I join you in finding ways that we can make sure we have ample
    time for this debate.
        So I just want to follow up on both of you. I think both of
    you have had a lot of agreement.
        After the attack on 9/11, all of us wanted to take action
    against those who caused that tragedy. And we had the vote in
    Congress. And we wanted to give the President maximum
    discretion on how to go against the perpetrators of that
    attack. So we passed an authorization for use of military
    force. It was not terribly controversial, but it did contain a
    restriction. It was against those who attacked us on 9/11. And
    now we see that authorization being used against groups that
    were not in existence on 9/11.
        Do either one of you think that Congress has authorized the
    use of our military force against the Assad regime in Syria? I
    hope that is a yes or no answer. [Laughter.]
        Mr. Bellinger. I certainly do not think that is what
    Congress intended 16 years ago.
        Senator Cardin. Right.
        Dr. Hicks. Agree, certainly not under the two AUMFs in
    discussion.
        Senator Cardin. And, of course, on June 18th, U.S. forces
    shot down an armed regime fighter jet in northern Syria.
        And then we could get into whether we have authorized the
    use of military force against the terrorist groups, ISIL or
    ISIS, which I do not believe we have authorized. And yet, I am
    in support of America pursuing these terrorists. But I do not
    believe Congress has authorized force.
        So I guess my first concern is when you give the President
    maximum authority, looking at how three previous
    administrations--one current and two previous administrations--
    have used our authorization, do we not have to be particularly
    concerned on how we define this so it is not misused by future
    administrations?
        Mr. Bellinger. Senator, I agree with all of what you have
    just said, and I think the challenge is going to be to try to
    get that tailored authorization that authorizes the use of
    force against the groups that we are actually fighting,so that
    we have congressional support, but that does have the
    appropriate limitations. And rather than continue to let
    successive Presidents stretch this authorization that was used
    for a particular purpose, this is actually a time when some
    appropriate limitations that all could agree on could be added.
    It has been stretched beyond the recognition of what was passed
    in 2001. I agree.
        Senator Cardin. Dr. Hicks, I am going to let you answer the
    next question because this is the dilemma we face. You have an
    administration who says, look, I am just using President
    Obama's interpretation. I can do pretty much anything I want to
    do. So why should I bother even dealing with Congress because I
    have all the authorization I need?
        I agree with you that Congress has a responsibility to be
    clear on its authorization and to repeal the 2001 and replace
    it. How do we do that when we do not know what the President
    wants to use as far as military force? He has not come to us.
        Dr. Hicks. As I said in my testimony, I do think having
    that dialogue, and certainly in the form of a strategy from the
    administration, is central to understanding the right set of
    tools for----
        Senator Cardin. But they are not having it with us.
        Dr. Hicks. I am sorry?
        Senator Cardin. The administration is not having that
    dialogue with us.
        Dr. Hicks. Correct. No. I am in complete agreement with
    you. You all have passed a requirement for them to submit that.
    It has not come in.
        That said, I think you can still move forward on an AUMF.
    It may not be the AUMF they ultimately desire, but the burden
    is on them then to come forward with their strategy.
        Senator Cardin. So you believe the fact that we have an
    authorization out there that is being misused is more important
    for us to clarify than knowing exactly what the administration
    wants because normally Congress does not pass an AUMF unless
    the commander-in-chief wants an AUMF.
        Dr. Hicks. Well, you do have the administration certainly
    from the Defense Department indicating they want a new AUMF,
    just as the Obama administration in theory wanted a new AUMF as
    well.
        I think the issue here is there is that a major policy and
    strategic issue, as I said, about where we go on the counter-
    ISIS campaign, let alone where we go on counterterrorism more
    generally. And that issue is not going to go away in and of
    itself by passage of a new AUMF. But by the same token, you
    need a new AUMF or they are just going to continue to act under
    the authority of the 2001.
        Senator Cardin. And I think both of you agree we should
    repeal both 2001 and 2002--replaced. I understand with a
    replacement. But both should be repealed. And you understand
    the need for a sunset or review process, which I appreciate
    both of your testimonies.
        Thank you, Mr. Chairman.
        The Chairman. You are a great example to all.
        Senator Flake?
        Senator Flake. Thank you, Mr. Chairman. I want to thank the
    chairman and the ranking member for having this hearing and
    for, not just in this area, but in all areas, looking to
    reassert this committee and our proper constitutional role with
    regard to foreign policy. And nowhere is that more needed in my
    view than in this area. The Constitution gives the Congress the
    authority to declare war. If we are not going to declare formal
    war, if we are going to move forward on the basis of an AUMF,
    then certainly Congress needs to be more involved.
        And I think that we have struck--myself and Senator Kaine--
    a pretty decent balance here in terms of the interests of the
    committee and its members. And I hope that we can move forward
    on that basis.
        I just wanted to address a few of the topics, but to say,
    as well, that to work on the basis of a 16-year-old AUMF is
    simply not tenable. Our allies need to know where we are. Our
    adversaries need to know where we are, that we speak with one
    voice. Our troops in the field need to know that we speak with
    one voice. Not having a current AUMF, allows Congress--lets us
    off the hook and allows us to criticize the administration of
    either party when we should be involved and have skin in the
    game, as it were.
        I would really like, Mr. Bellinger, your thoughts. I
    appreciate your thoughts on a sunset. In an ideal world, I
    think you should not have a sunset. You know that we did not
    have a sunset with regard to World War II. I would note that
    that was against a sovereign government where unconditional
    surrender was the only acceptable outcome. Here, when you are
    dealing with non-state actors, it is not quite as clear cut.
        And I would note that in the House, when we voted on the
    AUMF in 2001, it was a much different body with different
    Members. 300 Members who are in the House today did not vote on
    the 2001 AUMF, more than 300 Members of the House of
    Representatives. Here in the Senate, do you want to know how
    many Senators voted on the 2001 AUMF? 23. So three-quarters of
    this body has not voted on an AUMF. And when you have a
    situation like that, we are not speaking with one voice. We are
    let off the hook. We can criticize the administration. They can
    criticize us. We need to be together on matters of foreign
    policy of this importance. And so that is why I am so pleased
    that we are moving ahead on this.
        Can you give some thoughts on that with regard to a sunset?
    Is it a little different situation when you are dealing with
    nation states opposed to non-state actors?
        Mr. Bellinger. Thank you, Senator. I completely agree with
    all of your remarks both on the overall philosophy and
    particularly the need to back our armed forces. As all of you
    know, I think all 535 Members say we completely back our
    military. We want to give them the resources they need.
        But one of the resources is legal resources, legal backing.
    I, as a lawyer, want our troops to have the legal authorization
    that they need, and the current law is unclear now as to
    whether the fight that is being fought is actually legally
    backed by Congress. And if it actually comes to detention and
    we start detaining members of ISIS, members of ISIS, if they
    have an opportunity to get into court, are certainly going to
    say that it is not authorized by Congress. Perhaps the
    President will fall back on his Article II powers, but there
    are real practical concerns about this stretch to have the AUMF
    covering ISIS.
        On the sunset, yes. As a legal matter, no administration
    lawyer is going to go in and propose that the authority expires
    in 3 years or 5 years. It just creates legal uncertainty for
    commanders. As I said in my written testimony, we would never
    have done that in World War II to say, ``well, we are declaring
    war but only for a year and then we will revisit it in a period
    of time.'' And this is a serious threat. So to have Congress
    tell the military that we are only in it for a year or a couple
    of years is legally problematic. But that is from a legal
    perspective.
        From a political perspective, I certainly understand that
    Members of Congress and the American people have said that last
    AUMF lasted for 16 years and got stretched beyond all sorts of
    things. So this time, I would like have a sunset. I think that
    is a politically reasonable thing for you to agree on. I just
    say, as a lawyer, one would not want to go in asking for a
    sunset.
        Senator Flake. Thank you.
        Thank you, Mr. Chairman.
        The Chairman. Another a great example.
        Senator Coons?
        Senator Coons. Thank you, Chairman Corker. Thank you,
    Ranking Member Cardin. Thank you to the witnesses, and thank
    you to Senators Flake and Kaine for their hard work in framing
    what we are debating and discussing today and for the committee
    as a whole for their engagement on this. I think this is an
    opportunity for us to demonstrate how the Senate can work well
    together in an important and difficult constitutional moment.
        When the President sends American troops into harm's way,
    those men and women, their families, and the American people
    deserve clear authorization from Congress, a robust debate in
    Congress, a strategy that outlines the path to success. And at
    the moment, I am concerned we have none of those three.
        President Trump has not yet presented to us a strategy for
    success in Afghanistan and Syria. We have taken important steps
    on a bipartisan basis in this committee, and I am encouraged to
    see we are having this hearing today and that there is, more
    than not, agreement between our witnesses. But I will note the
    absence of an administration witness.
        The decision to send Americans off to fight in battle
    deserves our thoughtful consideration and a bipartisan effort
    to produce a clear path forward. This is not a partisan issue.
    We have more than 8,000 American troops deployed in
    Afghanistan, and there are reports several thousand more may
    soon be deployed. We have hundreds of American troops in Syria
    who have recently been taking fire from both ISIS and Assad
    forces in one of the most dangerous and complicated battle
    spaces on earth. I want them to succeed. We all want them to
    succeed. But what does success look like? How do we define
    success? That requires a strategy. What are the national
    interests we are defending and advancing on these battlefields?
    We have to have a conversation between the branches, executive
    and legislative, about what our goals are in Afghanistan and
    Syria and what it will take to achieve them.
        Particularly, when it comes to our military, I am not here
    to criticize the President or disagree with my colleagues
    across the aisle. I am here to work with them so that we can do
    our best to provide our troops with a strategy, the resources,
    and the support they need.
        So if I might, I am encouraged that our witnesses both
    largely agree. Would you take the time I have left to talk to
    what are the strengths of the AUMF proposed by Senators Flake
    and Kaine, and what do you see as the areas that might require
    amendment or improvement? I am broadly supportive and
    encouraged by what has been framed and what has been presented.
        Dr. Hicks. We do have a couple areas of disagreement, but
    again, as you point out, Senator Coons, we agree on many of
    these areas.
        I think the one thing I would take a moment to comment on
    is that I think Kaine-Flake is a great beginning of that
    conversation in the area I talked about. Two areas that are not
    covered under it that need discussion, not necessarily
    ultimately inclusion, but discussion, are the detention
    implications.
        And then the second is is there a special attention to be
    paid to forces used in a combat role. I would say
    Representative Schiff's bill in the House which speaks to the
    issue of ground combat forces and essentially as a soon as
    possible notification--it is not an exclusion or a limitation
    but a notification procedure that is faster for use of forces,
    in his case for ground forces in a combat role--I think is an
    appropriate balance of giving absolute operational flexibility
    to the commanders in the executive branch while at the same
    time allowing the fastest possible dialogue to begin with
    Congress.
        I will stop there.
        Mr. Bellinger. And I will just, Senator, focus on two
    things. Again, I thank Senators Kaine and Flake for really
    working incredibly hard on this. I know you have listened to--
    it must be hundreds of people--to get what the concerns are and
    try to get it right.
        I guess I would say one thing is a nice to have and one I
    think I would try to fix. The try to fix is the limitation on
    associated forces having to be part of Al Qaeda. I would at
    least like to talk to you all some more about that. I know you
    must have gotten that after a lot of thought. We all know that
    one of the top two or three hardest things is defining the
    associated forces so that Congress is not authorizing use of
    force against associates of affiliates of people who say nice
    things about Al Qaeda. We want it to be either Al Qaeda groups
    that are fighting along with them and keep it narrow.
        To define associated as part of Al Qaeda seems to me to be
    a little bit too tight in that there may be groups that are
    using the terminology that both administrations have used of
    co-belligerency. You have a different group that is fighting
    alongside and allied with Al Qaeda, but they really are a
    different group and they are not part of Al Qaeda or ISIS. So
    that is one thing that I would be--that is a little bit too
    tight. I know you want to keep this tight. And I do think that
    association cannot be just a group that shares the ideology but
    is writing white papers somewhere. It has got to be a group
    that is, in fact, fighting along with Al Qaeda in some way. So
    I think that idea of co-belligerency is important.
        Senator Coons. Thank you both for your testimony. I
    appreciate the opportunity to get your input.
        The Chairman. Thank you.
        Senator Young?
        Senator Young. Well, first, I want to thank our chairman
    for his leadership in convening this panel about this important
    issue. I also want to thank my fellow members, Kaine and Flake,
    for their longstanding leadership on this matter.
        Mr. Bellinger, Dr. Hicks, you have each spoken to the
    importance of and the appropriateness of an AUMF not just
    debating it but ultimately Congress passing an AUMF focused on
    ISIS. Allow me to flip this issue on its head for a moment and
    ask a question of you in this way.
        If in 1 year, 2 years, God forbid 5 years, U.S. forces
    remain engaged in hostilities against ISIS and Congress still
    has not passed an AUMF, why do you believe the average
    American, the rank and file Hoosier, should be concerned?
        Mr. Bellinger. I will say one thing legally and one thing
    more generally.
        Legally--and I know this is of particular interest to you.
    It also answers your question and Senator Coons'--is that it is
    not clear about detention authority. If we do start detaining
    members of ISIS under this old 2001 AUMF, there really is
    potential legal infirmity. And so Congress has not acted to
    provide clear authority to detain members of ISIS.
        More generally, I would say to the American people that
    they should be concerned that our Congress, while saying that
    they are backing the military, is not giving the military the
    legal support that they need. Congress does not have your backs
    legally.
        Dr. Hicks. I would just add to that that we are a Nation of
    laws, and if we lose that, I do not know what we stand for. I
    do not know why Americans should believe in the institutions
    that they have elected and that they support through the
    courts. And I think that is fundamentally a problem for
    American democracy.
        Senator Young. So there is some overlap between my concerns
    and yours. I, of course, am concerned about our constitutional
    prerogatives, our obligations, our duties as elected
    representatives of our respective constituencies. And this is
    not a war making power that can be delegated to the executive
    branch. We cannot outsource our responsibilities as difficult
    as it might be to come to terms on some of these issues. And I
    do, indeed believe, that we can find some principled
    compromises and pass an AUMF.
        As a former Marine Corps officer, I perhaps am more
    sensitive--maybe not--but I am certainly very sensitive to the
    fact that we do not want to leave our troops who are in the
    field in the lurch. They do need to know that the American
    people through their elected representatives have their backs.
    And I think even having a debate on this issue shines a bright
    light on the sacrifices they are making and on the propriety or
    impropriety of our involvement in different areas. So that is
    another point.
        And lastly, I believe that this new AUMF would address the
    concerns, Mr. Bellinger, you have mentioned several times
    throughout this hearing about detention authority. I was a
    Marine Corps intelligence officer. I understand the importance
    of eliciting intelligence, human intelligence, from detainees
    and from other sources. It helped save lives on the battlefield
    and here in the homeland. But it is not clear that under
    current authorities that can be done.
        So I intend to build on my efforts, having done the best I
    could to draft an AUMF, and I am prepared to make principled
    compromises with other members of this committee, other Members
    of Congress as we move forward so that we can formulate an AUMF
    that can pass this committee and pass out of the United States
    Senate.
        With respect to the authorization to detain--I know it has
    been mentioned time and again, but I want it to be reinforced.
    So, Mr. Bellinger, do you believe specifically authorizing the
    detention of terror suspects captured by the military outside
    of the U.S. would be legally helpful? You have already said
    yes. Why is this so important?
        Mr. Bellinger. The courts have held that the words ``all
    appropriate and necessary force'' do include the authority to
    detain. So the courts have said that, but it would be more
    helpful if Congress were to specifically say that and
    particularly with respect to ISIS.
        Senator Young. So if we do not, there will be an invocation
    of habeas. There will be a habeas petition filed. Is that
    correct? Can we not predictably say that that will happen from
    a number of these detainees based on recent history?
        Mr. Bellinger. Potentially, yes. Right now, they have the
    right to habeas if they are in Guantanamo. If they are held
    somewhere else in Iraq or elsewhere, it is not clear they would
    have the right to habeas.
        Senator Young. So in my Senate joint resolution 31, the
    AUMF I put together, it does make crystal clear that this is
    within the authorities we have. We can get the combatants off
    the battlefield. We can be eliciting intelligence from them.
    And I would hope this would be part of a future AUMF.
        Thank you.
        The Chairman. Thank you so much.
        Senator Menendez?
        Senator Menendez. Thank you, Mr. Chairman, for holding the
    hearing. I hope we can use it as a catalyst for this body to
    take up its constitutional responsibility of declaring war and
    guiding the civilians who must ultimately make the most
    consequential decision of sending America's sons and daughters
    into battle.
        In 2014, I authored a specific authorization for the use of
    military force to combat the Islamic State. As chairman at the
    time, we worked extensively with the executive branch as it
    developed and critically sought congressional support of the
    authorities it believed it needed to confront growing threats
    against the United States and our strategic interests. We
    worked closely with Republicans on the committee as well to
    ensure that we exercised the most solemn responsibility we
    have, which is sending young men and women onto the battlefield
    to protect and defend the United States. And we did so with a
    deep understanding and clear guidance of what we wanted to do.
    We may not have all come to an agreement as to all the elements
    of it, but there was a sincere effort.
        I was disappointed that the Senate as a whole and the House
    failed to take up the legislation and failing to deliver is
    nothing short of an abrogation of constitutional duty.
        With this President quietly delegating authorities to the
    Secretary of Defense and commanders in the field, I think it is
    critical that this committee and the Congress as a whole
    embrace our oversight duties. We have had nine Americans killed
    in combat missions this year. Campaigns have ramped up. I read
    about a surge in Afghanistan. And I continually do not have a
    sense of what the totality of the strategy is.
        So as Congress considers a new AUMF, Ms. Hicks, how should
    we consider what some have termed the President's delegation of
    civilian control to the military itself? Should and how can
    Congress effectively weigh in when the civilians who are
    supposed to be making critical decisions, including where to
    send troops and how many of them, have delegated that authority
    to the entities of which they are supposed to be in control of?
        Dr. Hicks. I think this is a very important issue to be
    raising. So I appreciate you asking the question.
        There is always a debate to be had over the degree to which
    the President should be delegating authority down into, in this
    case, the Defense Department. I think you are well aware that
    there was a view from the military, broadly speaking, that the
    last administration held that too tightly. I think the view of
    most of us who look at the defense community in a pretty
    bipartisan way think we are going very much the opposite
    direction. So it is swinging as a pendulum.
        So the good news, I guess, is that there is another
    civilian in the chain of command, and he is the Secretary of
    Defense. And together with the President, he constitutes the
    national command authority and he should be held responsible
    for decisions on use of force and so should the President,
    obviously. So there is a civilian in the chain that remains,
    but it is one.
        And I think what Congress can do, obviously, is AUMF, war
    powers enforcement, the power of the purse, and I would just
    add, for this committee in particular, building up or
    maintaining or sustaining or protecting the other tools of
    national power that kind of fall out through that kind of
    decision when it moves from the President down directly in the
    Defense Department, even the most enlightened Secretary of
    Defense is going to be looking at this issue set through a
    military lens. That is his job. What you lose in that is any
    consideration or large consideration of diplomacy, economic
    tools, development, et cetera that might be appropriate to the
    issue at hand. So anything you can do as authorizers in that
    space I think would be welcome.
        Senator Menendez. I appreciate that. I think it makes all
    the more compelling case for an AUMF to actually be passed.
        Let me ask you both this. Since 9/11 we have grappled with
    effectively confronting threats that are non-state actors,
    which almost by definition makes the geographic applicability
    of any authorization a complicated subject and one that you
    both touched on in your testimonies. Given the nature of the
    threats, how do we balance between giving our leaders the
    ability to target threats who move between borders and not
    allowing this mission to creep to operating in every country in
    the world? For example, Islamic State. Some claim to be part of
    the Islamic State but operating out of an ally country like the
    United Kingdom. How do we deal with that issue?
        Mr. Bellinger. I will take a first step. I completely
    understand the concern, particularly after the 2001 AUMF, that
    one does not want to be authorizing the use of force all around
    the world. My European colleagues, when I used to talk to them,
    were always worried that when we said there was a global war,
    that we were going to go use force in London or Germany or
    elsewhere, and I had to assure them that, no, that we were not.
    And that reason is that international law limits our use of
    force.
        So I do not think a domestic authorization should limit the
    use of force against groups to certain countries. The
    authorization is against the groups. I think you could have a
    sense of the Senate that says we think we should be limited to
    these seven countries, but I would not specifically say force
    can only be used in these countries because, as you say,
    Senator, the groups move. But again, international law limits
    where the United States can use force to those countries that
    have either consented to the use of force or are unwilling or
    unable to prevent a threat from their country. But I would not
    say force can only be used in these seven countries.
        Senator Menendez. Thank you.
        The Chairman. I know you missed my riveting opening
    comments, but I did thank you for your leadership in 2014 on
    this topic.
        Senator Isakson?
        Senator Menendez. Mr. Chairman, I got a full briefing on
    your opening comments. [Laughter.]
        The Chairman. Thank you.
        Senator Isakson. You know, Dr. Hicks, when you made your
    testimony and you used the words ``repeal and replace,'' you
    used it at a time that used to be two verbs that connotated
    action. Now it is two verbs hooked together that connotate
    difficulty in the Congress of the United States in terms of
    coming to a resolution, which begs my question.
        On the non-state actors referred to by Senator Menendez and
    others, Senator Young, in drafting this AUMF, should we be
    specific in not naming names in terms of group names or people
    that we are attacking but rather connotating the actions of
    groups so we do not find ourselves handicapped by the
    limitations that the two are one that AUMF limits us to today
    because it refers to 9/11 partners?
        Dr. Hicks. I will take a first cut at that. I do think you
    have to specify groups. I think the problem, as has been
    evident even in this discussion today and certainly in the last
    16 years, is this thorny issue of associated forces, and then
    the process for expanding, if you will, the interpretation of
    associated forces and then the ability to review and renew,
    which I consider a sunset clause being an essential element of
    for Congress to adapt just as the threat may adapt.
        So I think what Kaine-Flake has done successfully is put a
    pathway in there where it names the forces, which I think is an
    appropriate limitation, but provides a process by which the
    executive branch can come forward with groups that they would
    like to have added, if you will, to the list. And obviously,
    they have to be able to defend the associated forces under the
    other criteria that would be in the provision specifically
    relating, for example, to threats directly to the United States
    and its forces and other personnel.
        Mr. Bellinger. Senator, I agree with that. I think it is
    important to have a list of named groups that you are
    authorizing the use of force for, but since these groups can
    morph and there can be new groups, it is important for the
    President to be able to add groups. But we are not authorizing
    them against groups that are completely unassociated that might
    come up. That would require a new authorization, but you should
    authorize use of force against groups that are associated and
    really co-belligerents engaged in the hostilities with the main
    groups, Al Qaeda, the Taliban, ISIS, that you are authorizing
    the use of force against.
        Senator Isakson. So basically give yourself some
    flexibility to be more adroit and quicker in terms of a
    declaration against another group than tying yourself like we
    have for the last 17 years to the 2001 attacks--or 16 years. Is
    that right?
        Mr. Bellinger. Precisely.
        Senator Isakson. Well, I would just point out that I think
    Congress should be involved. I think a new AUMF does make a lot
    of difference. But I hope when we get into a robust debate, it
    will be a robust debate with an endpoint and a decision because
    inaction by a Congress that is trying to write an AUMF is worse
    than no action at all.
        Thank you very much for your attendance today.
        The Chairman. Senator Udall?
        Senator Udall. Thank you very much, Chairman Corker.
        And let me just say that last week with what we did, the
    Russia-Iran sanctions, what we did on the floor, what we did on
    the committee and all the negotiations, I think that was a good
    example of what we need to do here in terms of reasserting the
    authority of this committee and reasserting the Congress into
    these very important issues, especially the war making
    authority, which for too long--and I think both of you have
    said that--we have not stepped up. We have not pushed to do our
    constitutional duty.
        So I want to thank you both for your testimony so far.
        Like some of my colleagues, I was in Congress in 2001, and
    I voted for the 9/11 AUMF to authorize military action against
    Osama bin Laden and Al Qaeda and their allies, including the
    Taliban. I would have never imagined that vote supporting U.S.
    troops in Syria in 2017 in engagements with the Assad regime,
    and I do not think anyone else did either. And as we are
    speaking, I think we have another drone being shot down, but we
    had this contact with the Syrian jet.
        How do you all view, Mr. Bellinger, the legality of doing
    that under these current circumstances when we are in Syria
    without an authorization?
        Mr. Bellinger. So thank you, Senator.
        On Syria, I have to say just on the law, I was puzzled
    about the statements coming out of the Pentagon that the shoot-
    down was authorized by the 2001 AUMF, and I hope that they will
    clarify that. I think the President may well have Article II
    authority constitutionally. I do not know all the facts, but he
    may have decided it was in our national interest to shoot down
    the plane. But it is hard for me to see the Congress, by
    authorizing the use of force against organizations and nations
    and groups that committed the 9/11 attacks, authorized the use
    of force against Syria.
        Senator Udall. So you would say questionable legality at
    this point if not outright----
        Mr. Bellinger. Well, the President may well have
    constitutional authority. He has broad constitutional authority
    to use force that is in our interest, and it may well have been
    in our interest. But it is harder for me to see that Syria was
    one of the nations that committed the 9/11 attacks or is
    associated with them or is a co-belligerent with them.
        Senator Udall. Please.
        Dr. Hicks. I would just like to add. The other piece of
    this, clear in Mr. Bellinger's answer, is the lack of
    transparency. Even going back to the strike against Assad,
    against the airbase related to chemical weapons use, I do not
    think we have ever seen--at least I am not aware of the legal
    justification for that. It may well be defensible, but we have
    not seen any legal basis. I think Congress should be insisting
    on seeing these war power filings in whatever means possible to
    get the legal basis that is being used. There may be a very
    defensible way they are framing it, but we would not know
    because we are not being told.
        Senator Udall. Ms. Hicks, on the issue of the sunset, I did
    not hear you say what your position was on that because I
    wanted to ask a question on that.
        Dr. Hicks. Yes. I believe in a sunset. I think it is an
    appropriate way in which to ensure that you are adapting with
    the threat and keeping Congress and thus the public engaged in
    the discourse over use of force.
        Senator Udall. So that is one of the issues you two
    disagree on in some respect I would think is on the sunset.
        Let me just add a question to this. When we have considered
    these authorizations of force, I have added sunset provisions,
    and the reason for doing that is looking at the history of
    where we are today. I mean, what in fact has happened is
    Congress has not stayed engaged. And so one of the ways for
    Congress to be engaged is you say, you know, you are going to
    come back and look at this in 3 years, or you are going to come
    back and look in 2 years. So how can you force that engagement
    within an agreement without having some kind of sunset? That is
    really my question. And you two may have a little bit of
    disagreement on that. And I only have 30 seconds.
        Mr. Bellinger. I will just say I come at this, Senator, as
    an executive branch lawyer where I am sure you can understand
    the President and the military is not going to ask for a sunset
    on its authority and say please sunset my authorities. But from
    a political perspective, particularly over the last 16 years, I
    completely understand that one might want to have a sunset. If
    I were in your position, would I vote for a sunset if that were
    the way to get consensus? I might well do that. If I were
    writing the legislation as a lawyer who wants to not have
    uncertainty for my troops, I would not put in a sunset. But I
    think you can see the difference there.
        Senator Udall. Thank you, both, very much.
        Senator Risch [presiding]. Thank you, Senator.
        Senator Paul? Before you do that, let me take the chair's
    prerogative here. One of the things is there is always a sunset
    annually because, obviously, Congress can defund or put
    language in the authorization, but that has not been
    particularly effective in recent years. But it is always there.
        Senator Paul?
        Senator Paul. Madison wrote that the executive branch is
    the branch most prone to war. Therefore, the Constitution with
    steady care granted that power, vested that power in the
    legislature. In no way did they argue that Article II was
    unlimited authority to commence, initiate, or engage in war at
    all. In fact, most of the Founding Fathers would disagree with
    you on saying that Article II gives the President the authority
    to commence in war. To defend the country under imminent
    attack, to execute the war once the war is initiated--the
    initiation of war is congressional duty, not the President's at
    all.
        Even the War Powers Act a couple centuries later--nobody
    reports this. It has a reporting requirement in there, but it
    also says in another section that this is a reporting
    requirement for things that are either imminent attack or
    authorized war. There is nothing in the War Powers Act about
    unauthorized war because we are not supposed to be doing it.
        So I agree completely with the authors of this that we
    should be doing something. I applaud their motives. I do not
    question their motives, but I do doubt that this will change
    any of our military interventions as to what we are doing.
        I want to know if we are going to limit the President's
    power. Are we going to take back our power?
        I think a 5-year sunset--and I do not mean to be mean--but
    is essentially nothing. I mean, we have had millions of people
    die in 5-year wars before. So I think it is virtually
    meaningless.
        As far as the geographic limit on there, also virtually
    meaningless. If you look at associated forces, part of or
    substantially supports Al Qaeda, the Taliban, or the Islamic
    State, well, just the Islamic State is in 32 countries right
    now. I mean, you add in Taliban and you add in Al Qaeda, we are
    probably at least 50 or 60 countries. I am not voting to go to
    war in 50 or 60 countries. If we are going to limit something,
    let us have a debate. If we are going to just simply pass
    something to say we passed something--but it is not limiting--I
    mean, one of our testimonies today says basically you got all
    the Article II, and it would be nice to have an AUMF. No, it
    would not be nice. That is the Constitution. There is supposed
    to be no war without an AUMF. We have been illegally at war for
    a long time now. This is an illegal war at this point.
        So when we look at this and we ask ourselves what are we
    doing here, are we going to limit the power, are we going to
    limit the duration of war, are we going to identify our enemy--
    but, you know, the 9/11 proclamation--over and over again,
    people say associated forces as if that is in the document.
    That is not even in the document. The document, as Senator
    Cardin said, was very, very specific to 9/11. And we have had
    people just saying you can do anything you want now for 15
    years.
        Then there is the practical question. The practical
    question is doing anything you want, killing every perceived
    enemy and every perceived leader, a chieftain of five people in
    some misbegotten village--is it helping? Are we going to defeat
    an ideology by killing people?
        I was all for going after the people after 9/11. I would
    have voted for that. But I do not think war in Yemen is
    necessarily helping us. I do not think the manned raid in Yemen
    made us safer. And I do not blame our soldiers for this. Look,
    I have members of my family that are on active duty. They do
    what they are told. They are brave young men and women. But,
    you know, when they kill four or five Al Qaeda people in a
    village but we also kill their wives and children--and I am not
    saying we intentionally do it--they are probably firing at us.
    They are in the middle of the fire fight. But is it better? Do
    we have fewer terrorists now or more? We killed five, but what
    do you think happens in that village and surrounding that
    village for decades? For 100 years, they will be talking about
    the time the Americans came and killed the people and killed
    our women and children. For 100 years, they are going to be
    talking about the Saudis dropping bombs on a funeral
    procession. That does not go away. These people remember the
    battle of Karbala in 680 A.D. They have long memories.
        One of my favorite quotes is ``you have all the watches,
    but we have all the time.'' They are just going to be there,
    and they will wait us out.
        But we are not going to defeat terrorism by having war in
    60 some odd countries and dropping drones on everybody that we
    think in a village is of a radical ideology. We have to defend
    ourselves, but we should be much more specific than this. And I
    just say now I will not vote for something that does not limit
    the President's power but simply gives a rubber stamp to what
    we are doing.
        And I would argue that our Founding Fathers did not agree
    with unlimited Article II authority. In fact, they thought
    Article II was virtually unlimited authority to execute an
    already initiated war. If you look at every Founding Father,
    whether it is Washington, Adams, Jefferson, Madison, every one
    of them believed that the power to initiate war was Congress'.
    You could repel imminent attack even against the Barbary
    pirates. It was an imminent attack, but Jefferson worried that
    he needed to come back and he actually did come back very
    quickly, within a few months, and they did vote on authorizing
    that activity.
        But that is not what we are talking about. We are not
    talking about repelling attackers in the open seas, which I am
    for. We are not talking about a limited thing. We are talking
    about worldwide war. And I think this authorization will not
    limit that in any way. I have no question.
        Thank you.
        Senator Risch. Senator Paul, would you yield to a question?
        Senator Paul. Absolutely.
        Senator Risch. This is not a belligerent question. Indeed,
    I think that your comments are exactly the kind of robust
    debate that Congress needs to do and the American people need
    to do and that the Founding Fathers intended when they put
    those provisions in there.
        And I would ask if you would respond. And again, this is
    not a belligerent question, but there are people who argue, in
    response to your allegations that, well, what we are doing is
    illegal--they would argue that, well, look, Congress has to
    authorize military force. There is no exact way they have to do
    it. And one of the ways they can do it is by appropriating
    funds for it, thereby giving it the okay. So there are people
    who make that argument. How would you respond to that? And
    again, this is not a belligerent question.
        Senator Paul. I appreciate the question. I think it goes to
    the heart of the matter.
        There are two ways you can initiate war. You initiate it
    through an authorization and then through funding. You can
    discontinue funding. That is one way of ending it. But you are
    trying then to end something if it was never initiated. So, for
    example, currently we have a war never initiated by Congress,
    and you would be trying to end it by funding. I would argue
    that practically it is very difficult to stop funding because
    the argument will be, you know, like I say, I got have members
    of my family over there. Do I want to stop funding them in the
    middle of their battle? So it is much more difficult that way.
        But I think the debate was intended to be at the beginning,
    before we begin funding a war. And even during Vietnam, the
    most acrimonious situation our country has probably been in
    terms of war other than the Civil War, I think in the very end
    we still did not even defund it. We might have defunded it
    after people had left Vietnam, but we never voted to defund
    even a very unpopular war. So for practical purposes I would
    say--and for constitutional purposes--our job is before we get
    to the funding part.
        Senator Risch. Thank you, Senator Paul.
        Senator Kaine, you have been a real leader on this issue.
    The floor is yours.
        Senator Kaine. Thanks to all my colleagues. And I really
    appreciate the chair and ranking doing this hearing. I so
    appreciate working together with Senator Flake, Senator Young,
    your efforts.
        And to our witnesses, this is an obsession. I represent the
    State that is most connected to the U.S. military. I have a
    child who is a marine infantry officer. It is an obsession of
    mine.
        And I think this is really about lessons learned, and I am
    going to talk a little bit about what this bill does. And I
    have one question for you.
        Lessons learned after 16 years--if we cannot learn some
    things after 16 years of war, shame on us. We ought to be able
    to learn some things.
        And I have learned some things too. This is the third AUMF
    I have introduced: one on my own in September of 2014 right
    after President Obama decided to go on offense against ISIS;
    one with Senator Flake in the summer of 2015; and then this is
    number three.
        One of the things I have learned is it is hard to craft an
    authorization against non-state actors. It is one thing to have
    an authorization or declaration of war against a nation. Non-
    state actors, which we are going to be living with for a very
    long time, pose some additional challenges. But it is very
    important that we do it.
        While you have some points of disagreement, I applaud the
    fact that you agree on more than you disagree, but you
    especially agree that it is time for Congress to act.
        Now, what does the Flake-Kaine bill do? And there is one
    area where Senator Paul was inaccurate. We try to fix three
    problems with the existing essentially limitless status quo.
        First, we try to fix the who are we fighting by naming
    groups, specific groups, not perpetrators of an attack,
    specific groups. We try to fix the who are we fighting against
    problem by fixing the associated force definition. The
    associated force definition, as Senator Paul mentioned, was not
    contained in the original authorization. We do put an
    associated force definition in ours, and it has got two
    components, not just one. To be an associated force, you have
    to be connected with Al Qaeda, ISIS, or Taliban, but you also
    have to be engaged in hostilities against the United States. So
    it does not authorize anybody connected to the Taliban we are
    going to go after them anywhere. But if they are engaged in
    hostilities against the United States, that is a second factor
    to the associated force definition. We tried to tighten up the
    definition of who we are fighting against.
        And we additionally have a listing process where the
    President actually lists those groups that have to meet both
    criteria. And if Congress believes that he has listed a group
    that actually does not meet the criteria, we have a resolution
    of disapproval process to strip a group away. That is the first
    issue we tried to fix. Who are we fighting against?
        The second issue we try to fix is where are we fighting.
    The 2001 authorization had no geographic limit. This one allows
    action to take place in the current handful of nations where we
    are engaging in activities against the Taliban, ISIS, or Al
    Qaeda. And then it allows a similar listing process. If the
    President believes we need to take action against those groups
    or that tight definition of associated forces elsewhere, he can
    come forward with an initial and geographic limitation and must
    do so to take action there. But, again, Congress has the
    ability through a resolution of disapproval to deny that if we
    think that is an unnecessary stretch.
        And the third problem we try to fix is how long will we
    fight. Sixteen years in, we have learned something and we have
    learned about sort of zombie authorizations that can go on into
    perpetuity. And so I wish we had a phrase other than ``sunset
    clause,'' but what we have done is we have put in a mandatory
    review at 5 years, which is actually 21 years if you count the
    first 16 years of this. So at 21 years, we would have a review
    to determine whether we needed to go forward. And Senator Flake
    and I have put a process in that gives it expedited
    consideration, but under normal voting procedures. So it would
    take the 60-vote threshold, et cetera, in the Senate to
    continue.
        These are three problems that exist. These are three things
    that I think we should have learned, and areas that we address.
    Senator Young raises a good issue, and both of you do too about
    detention. We did not address that, and that is why a robust
    discussion and debate, with amendments considered, are going to
    be necessary in the committee.
        To conclude, it is time to do this. It is a new
    administration. That is always a good time to do this. We have
    both the Secretary of Defense and the head of the Joint Chiefs
    of Staff, who as recently as 10 days ago testified before the
    Armed Services Committee and said we should do this. These are
    President Trump's appointees, General Dunford was reappointed
    by President Trump. Our military leadership is telling Congress
    we should do it. It is time to do it.
        You each said things that you think are important. You did
    not say this, and I want to ask you if you think this is
    important. How important is it that we do this in a bipartisan
    way as opposed to a partisan vote?
        Mr. Bellinger. Senator, one, thank you. Senator Paul is not
    here anymore, but, actually, your bill would place the
    limitations. You can argue about exactly how the limitations
    ought to be done, but instead of having a very broad
    authorization, this allows certain limits to be placed on it to
    actually address his concerns. And I think you have raised
    important points.
        Actually on detention, although I know different groups
    raise concerns about legislating that, I actually see that as
    an opportunity to both authorize detention, but put in
    safeguards so that you make sure you are actually ensuring that
    the right people are detained and for no longer than is
    necessary. So it is a place to put in safeguards.
        On your question, I think it is very important to do this
    in a bipartisan way. I come away from this hearing, hearing
    agreement largely on the need for a new authorization. I am
    convinced that Members can work out these details. They are not
    that far apart. There are important points, but we ought to be
    able to get that language. And I am convinced that this can get
    done and should be done in a bipartisan way.
        And thank you for your leadership with Senator Flake in
    doing it that way, at least from the perspective of one lawyer.
        Dr. Hicks. I would just add that I completely agree with
    everything Mr. Bellinger said. You know, this is not a partisan
    issue. There is, as I said in my opening comments, broad
    bipartisan support beyond Congress as well, from the human
    rights community to the military community. And this is about
    the role of Congress. This is about the fundamentals of our
    democracy. It does not get more fundamental than this question
    of the role of Congress in the use of force.
        Senator Kaine. Thank you, Mr. Chair.
        The Chairman [presiding]. I find myself by myself and
    unprepared. [Laughter.]
        The Chairman. Let me ask you this. John, we were talking
    about the fact that you had written the AUMF back in 2001.
    Obviously, it has been very durable. But if you were going to
    start from scratch--I know that Flake and Kaine have done great
    work, and we appreciate that, and we have had numbers of
    iterations, and I know you have been asked this in different
    ways. But if you were starting from scratch, what would be some
    of the attributes that do not exist in this one that you would
    add or do exist that you would change?
        Mr. Bellinger. Well, you give me too much credit, Senator.
    I will not say I drafted the 2001 AUMF. I was the legal advisor
    to the National Security Council when it was drafted. So the
    pointed end to the spear was at the White House----
        The Chairman. I remember there were some grammatical
    errors, and you do not want to claim those.
        Mr. Bellinger. Yes, exactly. So in those 60 words.
        But I was there when it was drafted, was consulted on it.
    And of course, it was drafted very quickly in just a couple of
    days after 9/11, when the Pentagon was actually still
    smoldering.
        But I do think now, if one were starting from scratch, one,
    we have new groups that did not exist at the time. And so it is
    important----
        The Chairman. I am talking about currently.
        Mr. Bellinger. Currently.
        The Chairman. Yes, the current AUMF, the one that has been
    proposed.
        Mr. Bellinger. Oh, the Kaine-Flake?
        The Chairman. Yes.
        Mr. Bellinger. I would say two things. One, the associated
    force definition is too narrow for me. I would at least like to
    hear from Senators Flake and Kaine why they said that for a
    group to be associated, it literally has to be part of Al Qaeda
    or ISIS. There certainly seem to be some groups that are co-
    belligerents fighting along with Al Qaeda or ISIS but are not
    part of Al Qaeda. So I am sure they had a reason for drafting
    it that way, but that did strike me as too tight. I certainly
    understand the concerns that you do not want to go too broadly
    to say anything that is associated meaning that they met in the
    street sometime or said something nice. That is too broad. But
    the way it is currently drafted, part of Al Qaeda or part of
    ISIS, seems to be too narrow.
        I would add some detention provisions ideally, but the
    affirmative power to detain I would certainly balance with
    certain safeguards. It is a two-edged sword. If Congress is
    authorizing the detention of people under the laws of war,
    there ought to be protections to make sure that the people who
    are detained are the right people and are detained for no
    longer than is necessary.
        I defer to you all on the disapproval provisions. I know
    Senators Flake and Kaine worked very hard on those. It is a lot
    of lines and a lot of pages. It is quite complicated.
        The Chairman. Let me zero in on that just one moment. We
    have addressed a number of issues, for instance, in the Russia
    sanctions bill last week and on the Iran sanctions bill that
    actually work in exactly the opposite way. In their particular
    situation, they sunset and put an expedited procedure in place
    to extend it.
        The opposite way of doing that is for Congress to, at any
    time, have the ability to end it through a vote. And in many
    ways it would be safer. It would keep us from being in a
    situation where you end up with no authorization to deal with
    what is happening around the world.
        Can you give any input as to which you think is a better
    place for us to be--and actually both of you--where instead of
    having a hard deadline and an expedited procedure and people
    know that that is coming and people around the world wonder
    whether we are going to continue, instead of having that, have
    just the reverse of that where Congress can at any time end it
    and Congress could at any time state that we do not want to be
    involved in a certain country with a certain group?
        Mr. Bellinger. Senator, I think that is an excellent
    question. It gets really to my point about the sunset. My legal
    preference would be to not have a sunset because then it ends,
    and if you are the military, to know that your authority ends,
    is at least problematic. So I would rather have a review
    provision after a certain period of time rather than to know
    that it is going to end. But politically I really just have to
    defer to you all. If it is better to have it end and then
    reauthorize, I can understand that. But preferably as a legal
    matter and you are in the military, you do not want to know at
    least now that your legal authority is going to go up in smoke
    and just hope that Members of Congress will reauthorize it
    after a couple of years. But I do understand the politics of
    this.
        The Chairman. In 20 second, Dr. Hicks.
        Dr. Hicks. The Department of Defense would love it if it
    had a 5-year budget authorization too. I think it is very
    reasonable to put a sunset on the authorization here. And I do
    think, as Senator Kaine was saying, it creates an incentive
    structure that drives Congress to take on its role in the
    conversation. I do not think it is unduly burdensome to the
    military commander. 5 years is essentially a lifetime in how
    they think about their authorities.
        The Chairman. Thank you.
        Senator Markey?
        Senator Markey. Thank you, Mr. Chairman.
        Dr. Hicks, in your testimony you say it is appropriate for
    a new AUMF to create a most stringent notification requirement
    for the President's use of ground forces in combating terrorist
    groups and recommend language included in H.J. Res. 100 that
    gives the President expansive authority to send our service men
    and women into combat as long as he notifies Congress as soon
    as possible.
        What is your perspective on whether we should include in a
    new AUMF a requirement that the President notify Congress
    within 48 hours after he substantially enlarges the level of
    U.S. armed forces in a foreign country where combat appears
    likely?
        Dr. Hicks. I think the fundamental challenge for a new AUMF
    in all aspects is this balancing of ensuring the flexibility
    the commander needs on the ground. The national command
    authority needs to authorize force in defense of U.S.
    interests, and the appropriate role of congressional oversight.
        I think that the bill put forward by Representative Schiff
    with regard to notification on ground forces used in a combat
    role is an example of an appropriate balance. It is a
    notification. It allows Congress to have the earliest possible
    opportunity to start to engage in a conversation over
    authorities upon which that is based, over a discussion of
    resources being expended, the principles, et cetera. But it
    also does not really create a burden for the commander. So I
    think that is a reasonable way forward.
        Senator Markey. Thank you.
        Mr. Bellinger, the use of targeted killings, most
    prominently using armed drones, is a form of use of armed force
    and ought to fall under the Congress' war powers. Mr.
    Bellinger, what is your perspective on the interplay between
    the multiple sources of authority for the government's targeted
    killing programs and congressional oversight of these
    operations under the War Powers Act?
        Mr. Bellinger. The executive branch is carrying out, as I
    understand it, drone attacks, targeted killings, under a
    variety of different authorities. Some of them by the military
    are under the AUMF. Some of them may be under intelligence
    authorities, conceivably under the President's Article II
    authority, although I think most of it is probably authorized
    by Congress.
        Senator Markey. So you suggest that we revise the War
    Powers Act. How would, in your view, a new authorization deal
    with this issue? What would be the recommendations you would
    make in terms of the restrictions, the notification that would
    have to be given to Congress?
        Mr. Bellinger. Right. I do not know that it would address
    the drone issue. I think you mean more generally----
        Senator Markey. Well, the targeted killing issue, yes.
        Mr. Bellinger. Actually, the War Powers Resolution changes
    that most people think are necessary would address the drone
    issue. They have more to do with the 60-day clock.
        Senator Markey. If we revised the War Powers Act, it would
    not relate to the targeted killings policy that----
        Mr. Bellinger. I mean, of course, you can revise it any way
    you want to revise it. I do not think I would, or have I heard
    anybody say, that the War Powers Resolution flaws are things
    that really are related to drones. They are related more to the
    problem with the 60-day clock and Presidents stretching their
    authority to avoid the 60-day clock in the War Powers
    Resolution.
        Senator Markey. Thank you, Mr. Chairman.
        The Chairman. Thank you.
        Senator Murphy?
        Senator Murphy. Thank you very much, Mr. Chairman.
        I wanted to turn back to this question of the President's
    Article II authority in the context of a fairly extraordinary
    set of events that is playing out as we speak inside Syria.
    This morning, we have notification through the press of the
    fifth direct confrontation between U.S. military forces inside
    Syria and Syrian regime affiliated forces, none of which is
    authorized. Secretary Tillerson stood before us and admitted as
    such, that there is zero legal authority, not even through a
    perversion of the 2001 or 2003 AUMF, to begin military action
    against the Syrian regime. And yet, it seems as this is not a
    series of one-off incidences. We now have five incidences in 45
    days.
        And so I want to explore with you the limits of the
    President's Article II authority in the context, not of the
    campaign against ISIS, but against a developing war between the
    United States and the Syrian regime that may end up in a major
    shooting conflict that occupies all of our attention in the not
    so distant future.
        So two questions to both of you, two ways to view this.
        First is the justification that we are engaged in self-
    defense. I would imagine there is a limit to that argument.
    Just because the other guys shoot first does not mean that you
    do not need an authorization to continue to return fire. So we
    are now five engagements into the argument of self-defense. How
    do we begin to parse when this is Article II authority and when
    the President needs an authorization? Simply because you are
    sitting in a conflict zone and somebody is shooting you, does
    not mean that you can engage in long-term hostilities without
    Congress.
        Second, the justification that has been used for at least
    one of these attacks on the Iranian-made drones is that it is
    in defense not of U.S. forces but in defense of non-state actor
    forces that we are supporting on the ground. That seems
    clearer. I mean, that seems to me that there is no way that is
    an Article II authority.
        And so I would love for you to confirm whether my
    suspicions are right on the second count and to address the
    limits of Article II authority with respect to this
    justification of self-defense.
        Mr. Bellinger. Well, we can divide this up.
        Let me agree with something Dr. Hicks said I think just
    before you came in, which is I think both of us would like to
    see clarity out of the administration about their legal
    position. When I was legal advisor at the State Department, I
    mean, this was sort of my credo, that when the United States is
    doing edgy or controversial things legally, we ought to say why
    we are doing them. We as the United States believe in the rule
    of law. We believe that we are acting legally. We always try to
    do that. And if we are, we ought to say why. Others may not
    always agree, but we ought to say what we are doing. And when I
    was legal advisor, I tried very hard to explain our actions,
    and I would like to see those same things here. I would like to
    see clarification on the strikes against the chemical weapons
    in response a month or so ago and now.
        Like you, I have a hard time seeing that Congress
    authorized the use of force against Syria in the 2001 AUMF or
    that it authorized the use of force against Syrian aircraft
    because they were doing something to groups that we were
    supporting. I have not yet heard the administration's position.
    So I would like to hear that, but I do not really see how it
    can be justified under the 2001 AUMF because Syria is not one
    of the nations that committed the 9/11 attacks and it is not a
    co-belligerent with Al Qaeda. So I assume, therefore, it must
    be under the President's Article II authority. And there it
    would have to be under a national interest test, and for us to
    know that, we really would have to know more about what was the
    national interest that the President saw.
        Finally, that is all a matter of domestic law. As the legal
    advisor to the State Department, I also want to make sure that
    we are acting consistent with international law. And so your
    points about self-defense I think are also important. We do not
    appear to be defending ourselves. We were defending someone
    else, but it is not clear, at least to me until I learn more,
    that there was a collective right of self-defense. But this is
    why I think we would like to hear more about the
    administration's justification.
        Dr. Hicks. I agree with everything Mr. Bellinger said. I
    would very briefly add my recollection is that in the 2014
    consideration of an AUMF, Secretary Kerry was called before
    this committee. I think the same should be done now with
    Secretary Tillerson, broadly speaking on the legal basis for
    ongoing military operations to include, obviously, inside
    Syria.
        Senator Murphy. Thank you.
        I think this question of Article II authority is really
    important. National interest is very broad. Others would say it
    is imminent threat. That is a really important distinction for
    us to consider moving forward.
        The Chairman. On behalf of the committee, today we will ask
    formally what authority they are relying upon for this, and it
    will go out today.
        I will say, though, the dilemma we find is that just as
    some of the limitations you referred to earlier about no ground
    troops in countries which, let us face it, is part of the
    Menendez effort in 2014, there were numbers of members that
    wanted to limit our ability to have ground troops.
        And so what we have begun to do as a nation is we rely upon
    proxies. So we are, in fact--the SDF is a group that we have
    armed, that we have trained. And what has happened is the Assad
    regime and Russian airplanes have come against them with the
    very group they are supporting.
        So I mean, we cannot have it both ways. I mean, if we are
    not willing ourselves to send ground troops in, if we are going
    to rely upon proxies--and we do that in many cases because they
    are indigenous and they can actually govern after the fact--we
    do have to somehow, in an AUMF, make accommodations for the
    fact that if they come under attack from others and we are
    giving them close air support or support of other kinds, we
    have got to figure out a way to address that.
        And I am more than willing for you to enter into this since
    no one else is here, but would you guys like to respond as to
    how we might write an AUMF that takes into account that, to the
    extent we can, we are going to fight through proxies? They may
    come under threats. How do we deal with that?
        Mr. Bellinger. I will take a first stab. I think this is
    something that really we can do together as a policy matter and
    legal matter.
        As a policy matter, you are absolutely right, Senator. I
    understand that if we are going to be supporting people in
    another country and then they get attacked, we want to be able
    to provide them some support as a policy matter.
        As a legal matter, though, it really is much harder in that
    we do not, I think, under the AUMF or under international law,
    have a right to be using force in another country that has not
    consented to the use of force if we are not defending
    ourselves--it is a right of self-defense against us--or
    defending collectively some other country. It is a stretch for
    me to see that we have a legal right, either authorized by
    Congress under the 2001 AUMF or under international law, to use
    force to defend a group that we are arming as a legal matter.
    But I certainly understand your point as sort of a policy or
    moral matter.
        Dr. Hicks. We have to have a strategy. We have to
    understand what the goals are. And then we have to have a legal
    basis that supports that. I think we are completely
    disconnected, frankly, on all these elements. And I think that
    has been true for some time, to be somewhat fair to the
    administration.
        But I just want to foot stomp the point that Mr. Bellinger
    made on international law. We are short, if you will, all
    around. There is not a U.N. resolution. This is not an ally to
    whom we have a treaty obligation. We do not have it covered
    under the AUMF. If we had a sense of the policy and strategy
    that we as a Nation want to pursue, we could create for
    ourselves a legal basis. But I think we are operating in a void
    of both strategy, policy, and then of course the legal basis.
        The Chairman. So both of you are going to be relied upon in
    the upcoming weeks for input. I know that we are going to need
    to have likely another hearing because of all that has occurred
    this morning.
        And I am going to go ahead and call this to a close. If you
    could, the record will be open until the close of business on
    Thursday. I know you have other jobs, but to the extent you
    could answer fairly promptly. We are actually going to be
    engaging you very directly from the committee at our level
    today.
        But we thank you both for being here. I think this has been
    very, very helpful.
        And with that, the meeting is adjourned.

        [Whereupon, at 11:35 a.m., the hearing was adjourned.]

                                  ----------

                  Additional Material Submitted for the Record

         Responses to Additional Questions for the Record Submitted to
                Hon. Kathleen H. Hicks by Senator Cory A. Booker

    Yemen
        Question 1.  The 2001 AUMF states that ``the President has the
    authority under the Constitution to take action to deter and prevent
    acts of international terrorism against the United States.'' This broad
    definition does not explicitly define what actions are or are not
    sanctioned by the AUMF.

       With this in mind, do you believe American military assistance and
            support (ie in air-refueling, munitions targeting assistance,
            and logistical support) for the Saudi-led interventional
            against Houthi forces is permitted by the existing AUMF?

        Answer. It is my view that the military assistance provided by the
    United States to the Saudi-led coalition is not subject to the 2001
    AUMF because it does not constitute a ``use of force.'' Rather, it
    involves the use of U.S. military assets short of direct use of force.
    If the United States sought to take direct military action against
    Houthi forces in Yemen, it would require a legal basis to do so,
    whether under the 2001 AUMF or another provision of law.

        Question 2.  Current American involvement in Yemen has been
    complex. There has been a long running military engagement against AQAP
    which has only increased since the Trump administration took office.
        In tandem with this, the Trump administration has been providing
    the Saudi-led coalition, which is fighting against Houthi rebels and
    security forces allied with former president Ali Abdullah Saleh--NOT
    AQAP--with logistical, material, and intelligence support.

        Given that the Houthis are not covered by the 2001 AUMF and
            military action against AQAP has been conducted with minimal
            transparency, do you think the administration has produced
            adequate legal justification for engaging in hostilities
            against both AQAP and the Houthis?

        Answer. I believe the Obama administration provided adequate
    justification for direct military action against AQAP, arguing that the
    2001 AUMF confers authority to use force against AQAP as an
    ``associated force'' to the Al Qaeda terrorists responsible for the
    September 11th, 2001 attacks. The legal conclusion aside, as I stated
    in my testimony, I do believe that the United States would benefit from
    replacing the 2001 AUMF with a new authorization acknowledging how much
    the security environment has changed over the last two decades. Doing
    so would strengthen America's principled commitment to the rule of law
    and lend credibility to the institutions designed to create, carry out,
    and enforce such laws. At present, my understanding is that U.S.
    support to the Saudi-led coalition does not involve direct use of force
    and thus is not subject to an AUMF. If the United States sought to take
    direct military action against Houthi forces in Yemen, it would require
    a legal basis to do so, whether under the 2001 AUMF or another
    provision of law.
    Yemen Humanitarian Disaster
        Question 3.  The U.S. Air Force currently provides in-air refueling
    to Saudi Arabia and allied aircraft operating in Yemen, under an
    acquisition and cross-servicing agreement (ACSA).

       When the Saudi Air Force bombs a marketplace full of civilians,
            does it mean that U.S. Air Force assets are involved in an air
            campaign that has caused thousands of civilian casualties?

        Answer. I am concerned any time U.S. military force or assistance
    is associated with the creation of civilian casualties. My
    understanding is that the United States has, to date, only provided
    logistical support, intelligence sharing, and other advice to the
    Saudi-led effort in Yemen when it deems that support to be in the U.S.
    national interest and after it has been requested. When making such
    decisions to provide support, the United States should be strongly
    weighing the possible humanitarian effects of downstream action and use
    its influence to minimize civilian casualties. That influence can
    include the withholding of requested assistance or the conditioning of
    that assistance on demonstrated improvements in preventing civilian
    deaths.

        Question 4.  You say in your testimony, ``a robust congressional
    role in use of force decisions can spur consideration of policy
    alternatives, raise important strategic considerations, and build
    public support.'' I agree.
        Today, we see 17 million people--almost two thirds of the
    population--critically food insecure, two million children under the
    age of five acutely malnourished, and a cholera epidemic that quickly
    spiraling.

       In your view, what are the legal ramifications of this kind of
            military cooperation with a foreign power that could not
            conduct sorties over Yemen without U.S. refueling assistance?

        Answer. I believe the United States is always responsible for
    considering the legal, moral, and ethical ramifications of its military
    assistance policies. I am not a lawyer and am unaware of specific legal
    ramifications, if any, in this instance.

        Question 5.  Had Congress considered and debated an AUMF against
    Houthi rebels, would we have had a better understanding of the
    humanitarian consequences that we see today, and have prepared a
    coordinated and targeted humanitarian relief effort to alleviate the
    suffering of innocent families that have been caught in the How could a
    thorough deliberation of an authorization for the use of military force
    against the Houthis potentially saved thousands of lives?

        Answer. It is my view that the military assistance provided by the
    United States to the Saudi-led coalition is not subject to the 2001
    AUMF because it does not constitute a ``use of force.'' Rather, it
    involves the use of U.S. military assets short of direct use of force.
    If the United States sought to take direct military action against
    Houthi forces in Yemen, it would require a legal basis to do so,
    whether under the 2001 AUMF or another provision of law.
        As I stressed in my testimony, however, Congress has a major role
    in improving the strategic discourse for U.S. national security policy
    overall. Congress should deliberate the U.S. role in the Yemen Civil
    War and use its Article I powers, including the power of the purse, as
    it believes appropriate to advance U.S. foreign and security policy.
    AUMF
        Question 6.  War authorizations confer extraordinary powers on the
    president. Wartime rules were designed for the unique circumstances of
    armed conflict between opposing armed forces.
        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 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.

       Dr. Hicks, do you believe 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?

        Answer. The continued reliance on an ill-defined authority or
    questionable legal theory that enables the use of wartime authority
    outside the lawful boundaries of war does harm to U.S. leadership on
    human rights and national security. The United States currently faces
    an array of threats from violent extremist groups that necessitate
    counterterrorism operations in disparate parts of the world. Without a
    proper contemporary debate that focuses on these specific issues and
    threats, it is possible that our actions could have unintended second
    and third order consequences that negatively impact both our human
    rights agenda and U.S. national security. Congress should thus repeal
    the 2002 AUMF and a repeal and replace the 2001 AUMF as I described in
    my testimony.

                                   __________

                    Letter to the Committee from Third Way
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

           Statement for the Record Submitted by Human Rights First
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

                                      [all]