[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

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                    U.S. GOVERNMENT PUBLISHING OFFICE                    
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                 COMMITTEE ON FOREIGN RELATIONS        

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



                              (ii)        

  
                            C O N T E N T S

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                                                                   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.

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                Letter to the Committee from Third Way 
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       Statement for the Record Submitted by Human Rights First 
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