[Senate Hearing 115-711]
[From the U.S. Government Publishing Office]
S. Hrg. 115-711
REVIEWING CONGRESSIONAL AUTHORIZATIONS
FOR THE USE OF MILITARY FORCE
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HEARING
BEFORE THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
JUNE 20, 2017
__________
Printed for the use of the Committee on Foreign Relations
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web:
http://www.govinfo.gpo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
38-321 PDF WASHINGTON : 2019
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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
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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\
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\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).
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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\
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\2\ John B. Bellinger III, ``A Counterterrorism Law in Need of
Updating,'' Washington Post, November 26, 2010.
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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\
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\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.
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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.
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\7\ See Jack Goldsmith, ``The Practical Legal Need for an ISIL
AUMF,'' Lawfare, February 8, 2017.
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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\
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\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,
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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\
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\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\
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\10\ ``White House Defends Continuing U.S. Role in Libya
Operation,'' The New York Times, June 15, 2011.
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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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