[Senate Hearing 116-388]
[From the U.S. Government Publishing Office]
S. Hrg. 116-388
REVIEWING AUTHORITIES FOR THE
USE OF MILITARY FORCE
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
JULY 24, 2019
__________
Printed for the use of the Committee on Foreign Relations
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COMMITTEE ON FOREIGN RELATIONS
JAMES E. RISCH, Idaho, Chairman
MARCO RUBIO, Florida ROBERT MENENDEZ, New Jersey
RON JOHNSON, Wisconsin BENJAMIN L. CARDIN, Maryland
CORY GARDNER, Colorado JEANNE SHAHEEN, New Hampshire
MITT ROMNEY, Utah CHRISTOPHER A. COONS, Delaware
LINDSEY GRAHAM, South Carolina TOM UDALL, New Mexico
JOHNNY ISAKSON, Georgia CHRISTOPHER MURPHY, Connecticut
JOHN BARRASSO, Wyoming TIM KAINE, Virginia
ROB PORTMAN, Ohio EDWARD J. MARKEY, Massachusetts
RAND PAUL, Kentucky JEFF MERKLEY, Oregon
TODD, YOUNG, Indiana CORY A. BOOKER, New Jersey
TED CRUZ, Texas
Christopher M. Socha, 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
Risch, Hon. James E., U.S. Senator From Idaho.................... 1
Menendez, Hon. Robert, U.S. Senator From New Jersey.............. 2
Hale, Hon. David, Under Secretary for Political Affairs, Bureau
of Political Affairs, U.S. Department of State, Washington, DC. 4
Prepared Statement........................................... 6
String, Marik, Acting Legal Adviser, Office of the Legal Adviser,
U.S. Department of State, Washington, DC....................... 8
Prepared Statement........................................... 10
Additional Material Submitted for the Record
Responses of Under Secretary of State David Hale to Questions
Submitted by Senator Robert Menendez........................... 38
Responses of Acting Legal Adviser Marik String to Questions
Submitted by Senator Robert Menendez........................... 39
Responses of Under Secretary of State David Hale and Acting Legal
Adviser Marik String to Questions Submitted by Senator Tim
Kaine.......................................................... 46
Responses of Under Secretary of State David Hale to Questions
Submitted by Senator Edward J. Markey.......................... 48
Responses of Acting Legal Adviser Marik String to Questions
Submitted by Senator Edward J. Markey.......................... 49
(iii)
REVIEWING AUTHORITIES FOR THE
USE OF MILITARY FORCE
----------
WEDNESDAY, JULY 24, 2019
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The committee met, pursuant to notice, at 10:21 a.m., in
room SD-419, Dirksen Senate Office Building, Hon. James E.
Risch, chairman of the committee, presiding.
Present: Senators Risch [presiding], Romney, Barrasso,
Young, Menendez, Cardin, Coons, Udall, Murphy, Kaine, Markey,
and Merkley.
OPENING STATEMENT OF HON. JAMES E. RISCH,
U.S. SENATOR FROM IDAHO
The Chairman. The Senate Foreign Relations Committee will
come to order.
Good morning, everyone. Today, we meet once again--at least
for me, once again--to review the authorities for the use of
military force, or AUMF. Matters of war and peace are among the
most sobering topics with which this committee and Congress are
charged. I take this issue--and I think we all take this
issue--and our committee's oversight of this issue very
seriously. I know it is of great importance to all of us here.
I would like to thank Senators Young and Kaine especially, and,
in particular, for their persistence on this matter.
This issue is one of the most vexing issues that I have
dealt with in my years in the United States Senate, and I have
sat through scores of hours of testimony and opinions from
lawyers, wrestling with how we actually deal with this issue,
the pragmatics of this issue. It is important that we debate
this issue in search for a path forward. There is broad
agreement that Congress ought to pass a new AUMF. The problem
is there are 535 ideas of what that should look like and even
more views in the executive branch. I have been working on this
issue for more than a decade, and have found that the practical
aspects and the legal aspects are incredibly difficult to
reconcile. There are many different lawyers with many different
opinions, and no clear consensus on what Congress should do,
although all of us have strong opinions on what Congress should
do.
One problem we have to address is that many of us have
grown up thinking about war as military conflict between
nation-states. But, over the last 20 years, we have learned
that our enemies are not necessarily state actors. Today, we
face rapidly evolving threats without boundaries. Acts or
threats of aggression can occur with virtually no warning,
often asymmetrically, requiring swift responses to keep our
Nation safe. We are blessed with the greatest military force in
the world; indeed, the greatest military force the world has
ever seen. And we do all we can to be prepared for acts of
aggression. Our President needs to be able to respond as
quickly as threats materialize.
Whatever we do, we should not politicize the AUMF issue,
and we should not support an AUMF with irresponsible
restrictions on our Commander-in-Chief or on the commanders in
the field. This is truly not a political problem. This is an
issue in which all Americans are concerned. Whether we agree
with it or not, the 2001 AUMF provides the basis for our most
important counterterrorism activities abroad against al-Qaeda
and the Islamic state and associated terrorist groups.
Consecutive Defense Secretaries spanning both Democrat and
Republican administrations have reiterated that our
counterterrorism operations, those activities that keep
Americans safe, rely on the 2001 AUMF. Many recent legislative
proposals, however, include a repeal of the 2001 AUMF. Any
efforts to repeal an AUMF must also include efforts to pass a
suitable replacement. That has proven difficult.
As unfortunate as it is, the threat from terrorism
persists. If there is a path forward on this issue, we cannot
let it jeopardize the hard-fought gains we have made over
nearly two decades, the safety of the American homeland, nor
the laws that provide key detention authorities. Indeed, some
of the most hardened terrorists are kept off the battlefield
under this authority.
Turning our attention to Iran, I am increasingly concerned
with Iranian aggression. Iran's seizure of a British-flagged
vessel in international waters is a clear violation of
international norms. That said, maximum pressure is working.
The Iranian economy will remain hobbled until the regime
chooses to behave as a responsible member of the international
community. Iran should take note, despite all of the debate on
legal authorities, one thing remains clear: Article 2 of the
Constitution provides the Commander-in-Chief with authority to
use force to defend the United States and its citizens against
attacks. This includes our men and women serving in harm's way.
We owe them and their families no less.
I look forward to hearing from the two Administration
witnesses on this issue today and to the discussions with the
members of this committee regarding this complex issue. And it
deserves a robust discussion which I know this committee is up
to.
With that, Senator Menendez.
STATEMENT OF HON. ROBERT MENENDEZ,
U.S. SENATOR FROM NEW JERSEY
Senator Menendez. Thank you, Mr. Chairman, for holding a
very important hearing. In response to several of our
colleagues--Senator Kaine, Senator Young, Senator Udall,
Senator Murphy, just to mention some who have been pressing
this issue for some time. So, I appreciate the hearing.
The Constitution of the United States gives to Congress the
sole authority to declare war and, therefore, to authorize the
use of military force. The vote we take to send America's sons
and daughters into harm's way is one of our most grave
responsibilities and one we must fully embrace. And let us be
clear, Congress has, over the past decade, not adequately
exercised our prerogative, allowing Presidents to abuse that
authority for decades. Regardless of party, no President wants
to be constrained. Recent past Presidents of both parties have
placed U.S. forces in combat without authorization or stretched
a past authorization beyond all recognition. It is
unconscionable, and I also believe it is unconstitutional.
I take these votes very seriously. In response to a direct
attack on the United States, I voted in favor of the 2001 AUMF
against al-Qaeda. After careful review and consideration, I
have voted against others, including the Iraq War authorization
in 2002. As Chair of the Foreign Relations Committee in 2013, I
worked arduously with all members of this committee to author
an AUMF for Syria in response to the use of its chemical
weapons, and again in 2014 to carefully authorize use of force
against ISIS.
While this committee took our responsibilities seriously,
and even the mere threat of the possibility of the
authorization of the use of force in the case of Syria had
Assad given up the chemical weapons we knew of at that time
without firing a shot, these authorizations never made it to
the Senate floor. Each time I cast a vote--and I am sure this
is true of many of my colleagues, if not all of them--I
carefully examine all of the facts and weigh the risk of using
force. I ask myself if the cause is just and in the national
security of the United States. If it is, I would vote to send
my son and daughter into war, and also anyone else's. But, if I
felt it was not, I would not vote to send my son or daughter,
or anyone else's.
Before we authorize force, we must consider three issues.
First, is military action necessary to advance and protect the
national security interests of the United States? Second, we
need a clear diplomatic and political strategy and to
understand how military action advances our interests,
including realistic timeframes. And lastly, we need to
understand what authorities the Commander-in-Chief has, and
what specifically they need from Congress, in terms of
resources and authorities. This is our decision to make, not
the President's, not the Secretary of State's. The Founding
Fathers did not trust the executive to make the decision to
take the United States to war, and I do not see why we should
override their wisdom.
As I have said many times, I am not comfortable with this
Administration or the last Administration's reliance on the 9/
11 AUMF and the 2002 Iraq AUMF to pursue new enemies in
different countries and under completely different
circumstances than existed when those authorities were granted.
Congress passed the 2001 AUMF to counter al-Qaeda in the wake
of the September 11 attacks. No member could have foreseen that
we would still be acting under its authority 18 years later. I
do not believe that it provides the authority to justify an
endless war or to engage in new wars beyond anything the
Congress could have ever imagined. To be clear, I do not doubt
that actions to defend our country against attack are necessary
or that our military forces must be able to defend themselves,
but new, significant combat actions require new and appropriate
authorizations before they are undertaken.
I understand that this Administration and this State
Department believe the 2001 9/11 AUMF could be twisted anew to
provide legal cover for any U.S. combat action against Iran,
based upon some fictive connection between Tehran and al-Qaeda.
That is absurd. And I ask our witnesses today not to insult our
intelligence by claiming that.
My colleagues, we have seen the consequences before of an
Administration's fictions to justify war in Vietnam and in
Iraq. The results have been quagmires that have gone on for
years, at the horrendous cost in lives of U.S. soldiers and
innocent civilians. In the worst of cases, our military action
has not only failed to achieve its goal, but a lack of
diplomatic and strategic planning has beget more and evolving
challenges and threats to the United States and our citizens.
In Iraq, arguably, we extended our tenure in a quagmire to
ostensibly defeat ISIS. While the caliphate may be defeated,
ISIS and its ideology is certainly not, with ISIS affiliates
from Nigeria to Sri Lanka and even stirring again in Iraq.
There are few remaining limits to a President's ability to wage
war. That must change before we find ourselves in another war
in the Middle East without Congress's approval, and possibly
with Iran.
I look forward to the witnesses' testimony.
Thank you, Mr. Chair.
The Chairman. Thank you, Senator Menendez. And your work 5
years ago, as we wrestle with this issue in regards to Syria,
certainly deserves to be recognized and to be commended. Also
Senator Udall, Senator Murphy, Senator Kaine, and others.
Senator Young has been particularly attentive to this issue,
also. I think the Syria issue probably underscored, as much as
any, how really difficult this issue is to wrestle with. And
your efforts are to be commended in that regard.
We will turn now to the Honorable David Hale. Ambassador
Hale serves as the Under Secretary of State for Political
Affairs. Ambassador Hale previously served as U.S. Ambassador
to Pakistan, Lebanon, Jordan, and as a Special Envoy for Middle
East Peace.
So, Ambassador Hale, we welcome you, and we would love to
hear your remarks.
STATEMENT OF HON. DAVID HALE, UNDER SECRETARY FOR POLITICAL
AFFAIRS, BUREAU OF POLITICAL AFFAIRS, U.S. DEPARTMENT OF STATE,
WASHINGTON, DC
Ambassador Hale. Well, Chairman Risch, Ranking Member
Menendez, distinguished members of the committee, thank you for
inviting me to testify today.
The Trump administration's unprecedented pressure campaign
on Iran has two objectives: to deprive the Iranian regime of
the money it needs to support its destabilizing activities,
and, second, to bring Iran to the negotiating table to conclude
a comprehensive and enduring deal, as outlined by Secretary
Pompeo in May of 2018. President Trump and Secretary Pompeo
have expressed clearly America's willingness to negotiate with
Iran without preconditions, when the time is right. We have
also been clear about our readiness to begin normalizing
relations, should we reach a comprehensive deal.
Last year, Secretary Pompeo laid out 12 points on what a
negotiated deal should address: Iran's nuclear program, its
ballistic missile development and proliferation, its support
for terrorist groups and proxies, and its treatment,
wrongfully, of U.S. citizens who are detained. Before we
reimposed sanctions and accelerated our pressure campaign, Iran
was emboldened by the resources and legitimacy provided by our
participation in JCPOA. It was increasing the scope of its
malign activity, including expansive missile testing and
proliferation, its involvement in regional conflicts, and it
was unjustly detaining American citizens. In Yemen, Iran has
funded, armed, and trained the Houthis, only prolonging the
conflict and suffering of the Yemeni people. In Syria, Iran
supports a regime that has killed hundreds of thousands of its
own citizens, displaced millions, and which continues to spread
violence throughout the country. And in Lebanon, Iran uses
Hezbollah to provoke conflict with Lebanon's neighbors, imperil
the Lebanese people, and generate instability. American
pressure is aimed at reversing these trends. Today, the regime
and its proxies are weaker than when our pressure began. Shia
militant groups in Syria have stated that Iran no longer has
enough money to pay them as they did in the past, and Hezbollah
has enacted unprecedented austerity plans because of this lack
of funding. We are making it harder for Iran to expand its own
military capabilities. Military spending fell by nearly 10
percent in the first year of our pressure campaign, and Iran's
2019 budget proposed even steeper cuts, including a 28 percent
cut in defense spending.
Our policy, at its core, is an economic and diplomatic one.
We are focusing on maximizing economic pressure, linking that
pressure to malign activities, and simultaneously increasing
Iran's diplomatic isolation. Recently, Iran has responded to
this campaign with violence. Iran attacked vessels near the UAE
Port of Fujairah in May, and assaulted two oil tankers in the
Gulf of Oman last month. Iran shot down an American unmanned
aircraft lawfully operating in international airspace. As the
Secretary said, Iran should meet diplomacy with diplomacy, not
with terror, bloodshed, and extortion. The President has been
clear that this Administration does not seek armed conflict
with Iran, but we will defend our citizens, forces, and
interests, including against attacks by Iran or its proxies.
The Administration is not currently seeking a new Authorization
for Use of Military Force, nor has the Administration, to date,
interpreted either the 2001 or the 2002 AUMF as authorizing
military force against Iran, except as may be necessary to
defend U.S. or partner forces engaged in counterterrorism
operations or operations to establish a stable, democratic
Iraq. The Department's Acting Legal Adviser, Mr. String, is
here today to address AUMF issues from a legal standpoint.
We stand with our partners and allies to safeguard global
commerce, regional stability, and freedom of navigation in,
through, and around the Strait of Hormuz. One-fifth of the
world's oil supply transits through the Strait. At the
direction of President Trump, we are working to establish an
international initiative to promote freedom of navigation and
the free flow of commerce in the Gulf. It is vital that we and
other nations preserve the right of all vessels to safely
navigate there.
Iran's recent announcement that it is accelerating its
uranium enrichment reminds us of the fatal flaws of the JCPOA
deal. It left Iran's nuclear capabilities largely intact and
placed Iran in a position to pursue rapid breakout at a time of
its own choosing. Mr. Chairman, the terms of the JCPOA were
time-bound by unacceptable sunset provisions; therefore, the
world would have faced, soon enough, the problems presented by
Iran's provocative building up of its nuclear capabilities.
Learning from past mistakes, we will demand a full
accounting of Iran's past and present nuclear activities, as
well as comprehensive and permanent restrictions on them, and
we will continue to deny Iran access to the revenue streams it
has used to destabilize the Middle East. As we raise the cost
of Iran's expansionism and of the status quo, we seek a
comprehensive deal and a far more peaceful and stable
relationship.
Chairman Risch, Ranking Member Menendez, and other members
of this committee, I thank you again for the opportunity to
testify before you, and I welcome the opportunity to answer
your questions.
[The prepared statement of Ambassador Hale follows:]
Prepared Statement of Ambassador David Hale
Chairman Risch, Ranking Member Menendez, distinguished Members of
the Committee, thank you for inviting me to testify today.
The Trump administration has implemented an unprecedented pressure
campaign on Iran with two objectives: First, to deprive the Iranian
regime of the money it needs to support its destabilizing activities.
Second, to bring Iran to the negotiating table to conclude a
comprehensive and enduring deal as outlined by Secretary Pompeo in May
of 2018.
President Trump and Secretary Pompeo have expressed clearly
America's willingness to negotiate with Iran without preconditions when
the time is right. We have also been clear about our desire for peace
and our readiness to begin normalizing relations should we reach a
comprehensive deal. We have put the possibility of a much brighter
future on the table for the Iranian people, and we mean it.
The comprehensive deal we seek with the Iranian regime should
address four key areas: its nuclear program, its ballistic missile
development and proliferation, its support for terrorist groups and
proxies, and Iranian treatment of U.S. citizens, such as the wrongful
detention of U.S. citizens like Siamak Namazi and Xiyue Wang, and the
case of our missing citizen Bob Levinson.
Over a year ago, Secretary Pompeo laid out 12 points describing the
negotiated deal we seek. These points reflect the wide extent of Iran's
malign behavior as well as the global consensus before the JCPOA, as
reflected in multiple U.N. Security Council resolutions that were
adopted starting in 2006 following the revelation of Iran's nuclear
violations.
Before we re-imposed sanctions and accelerated our pressure
campaign, Iran was increasing the scope of its malign activity,
emboldened by the resources and legitimacy provided by our
participation in the JCPOA. These actions included engaging in
expansive missile testing and proliferation, as well as continuing to
unjustly detain American citizens and those of our allies.
Iran also deepened its involvement in regional conflicts.
In Yemen, Iran has provided funding, weapons, and training to the
Houthis, only prolonging the conflict and suffering of the Yemeni
people. Iran seeks to exploit Yemen's war to undermine its adversaries
and expand its regional power. By contrast, America has given more than
$2 billion to help the Yemeni people since the start of the conflict.
Iran has provided zero dollars for humanitarian assistance in Yemen.
The Iranian regime would rather buy explosive drones to attack civilian
airports and infrastructure than provide for the welfare of the Iranian
people.
In Syria, Iran supports a regime that has killed hundreds of
thousands, displaced millions of its own citizens, and which continues
to spread violence throughout the country. Iran is trying to deepen its
roots in Syria--economically, militarily, and socially--and use it as a
forward operating base to threaten Syria's neighbors, especially Israel
and Jordan.
In Lebanon, Iran uses Hizballah to provoke conflict with Lebanon's
neighbors, imperil the Lebanese people, and generate instability.
American pressure is aimed at reversing these trends. Today, the
regime and its proxies are weaker than when our pressure began.
Shia militant groups in Syria have stated that Iran no longer has
enough money to pay them as much as they have in the past. Hizballah
and Hamas have enacted unprecedented austerity plans because of a lack
of funding from Iran. In March, Hizballah's leader Hassan Nasrallah
publicly said Hizballah needed financial support to sustain its
operations. Hizballah has placed donation boxes in some small
businesses and grocery stores asking the public for spare change.
We are also making it harder for Iran to expand its own military
capabilities. Starting in 2014, Iran's military budget increased each
year until it hit nearly $14 billion in 2017. From 2017 to 2018, when
our pressure campaign went into effect, military spending fell by
nearly 10 percent. Iran's 2019 budget proposed even steeper cuts,
including a 28 percent cut to their defense budget and a 17 percent cut
for IRGC funding. The IRGC's cyber command is now low on cash, and the
IRGC has told Iraq's Shia militia groups that they should start looking
for other sources of revenue.
Our pressure is working. It is making the cost of Iran's violent
and expansionist foreign policy prohibitive.
Our policy is at its core an economic and diplomatic one. We are
focusing on maximizing economic pressure on the regime, linking that
pressure to its malign activities, and simultaneously increasing Iran's
diplomatic isolation. Recently, Iran has responded to this campaign
with violence. Our diplomacy and economic pressure does not entitle
Iran to undertake violence against any nation or to threaten maritime
security. As the Secretary has said, Iran should meet diplomacy with
diplomacy, not with terror, bloodshed, and extortion.
Iran was responsible for the attacks at the UAE Port of Fujairah in
May as well as the assault on two oil tankers in the Gulf of Oman last
month. Iran was responsible for shooting down an American unmanned
aircraft lawfully operating in international airspace.
The President has been clear that this Administration does not seek
armed conflict with Iran. However, we have also been clear to the
regime that we will defend our citizens, forces, and interests,
including against attacks by Iran or its proxies. As Secretary Pompeo
has noted, the Administration's goal is to find a diplomatic solution
to Iran's destabilizing actions, not to engage in a conflict with Iran.
The Administration is not currently seeking a new authorization for use
of military force. Nor has the Administration, to date, interpreted
either the 2001 or the 2002 AUMF as authorizing military force against
Iran, except as may be necessary to defend U.S. or partner forces
engaged in counterterrorism operations or operations to establish a
stable, democratic Iraq. Marik String, the Department's Acting Legal
Adviser, is here today to speak to this issue in more detail and about
AUMF more generally.
Safeguarding freedom of navigation in, through, and around the
Strait of Hormuz is paramount. One-fifth of the world's oil supply
transits through the Strait, with the majority fueling the economies of
Europe and Asia. We stand with our partners and allies to safeguard
global commerce and regional stability. At the direction of President
Trump, we are working to establish an international initiative to
promote freedom of navigation and the free flow of commerce in the
Gulf. It is vital that we and other nations preserve the ability and
right of all vessels to safely navigate the Strait of Hormuz.
While threatening maritime shipping and plotting attacks against
U.S. forces and interests, Iran is also continuing its longstanding
practice of nuclear extortion.
The Iranian regime's recent announcement that it is accelerating
its uranium enrichment reminds us of the fatal flaws of the JCPOA deal.
It left Iran's nuclear capabilities largely intact and placed Iran in a
position to pursue rapid breakout at a time of its choosing, if it
decided to do so.
Mr. Chairman, the problems presented by Iran's provocative building
up its stocks of nuclear material and increasing the level of
enrichment are problems that the world would have faced soon anyway--at
the very least because the terms of the JCPOA were time bound with
unacceptable sunset provisions.
But the secret nuclear weapons archive discovered last year reminds
us that Iran's nuclear ambitions are in no way peaceful. Iran hid this
archive from the world before, during and after JCPOA negotiations.
Iran hid this archive while maintaining an organization headed by the
founder of Iran's former nuclear weapons program--an organization that
employs scientists who worked on that nuclear weapons program.
Had we continued participating in the JCPOA until key aspects of
the deal began to expire, we would have been faced with an Iranian
regime that was more entrenched in the region and with an even greater
conventional arsenal. It would have continued to reap revenue from
abroad and funnel it into missile proliferation, support for terrorism,
proxy warfare, and regional destabilization. The Iran we would have
faced would be much more formidable than the Iran we in fact face.
We must learn from past mistakes. Any new deal must demand a full
accounting of Iran's past and present nuclear activities, alongside
comprehensive and permanent restrictions on Iran's activities and
capabilities. Our pressure will continue to deny Iran access to the
revenue streams it needs to destabilize the Middle East. It is time for
the Iranian regime to leave 40 years of terror and failure for their
people behind.
As we raise the cost of Iran's expansionism and of the status quo,
we seek a comprehensive deal and a far more peaceful and stable
relationship.
Iranians in the United States and around the world contribute to
the vitality and success of their communities. We look forward to the
day when we can restore diplomatic relations with Iran and work
together with the Iranian people to bring them and their neighbors the
peace and prosperity they deserve.
Chairman Risch, Ranking Member Menendez, and other Members of this
Committee, I thank you again for the opportunity to testify before you.
I welcome the opportunity to answer your questions.
The Chairman. Thank you, Ambassador Hale.
We will now turn to Mr. Marik String. Mr. String currently
serves as the Acting Legal Adviser at the State Department, and
has previously served in the Bureau of Political-Military
Affairs.
Mr. String, the floor is yours.
STATEMENT OF MARIK STRING, ACTING LEGAL ADVISER,
OFFICE OF THE LEGAL ADVISOR, U.S. DEPARTMENT OF STATE,
WASHINGTON, DC
Mr. String. Chairman Risch, Ranking Member Menendez,
distinguished members of the committee, thank you for inviting
me to testify today. It is a particular privilege to be before
you today, before the committee where I started my career
working for then-Chairman Lugar.
I am here today to address the Administration's view of the
scope of the 2001 and 2002 AUMFs as they relate to Iran, as
well as more general questions about the President's current
authorities to use force and the Administration's position on a
new AUMF.
The Administration is not seeking a new AUMF against Iran
or any other nation or nonstate actor at this time. In
addition, the Administration has not, to date, interpreted
either the 2001 or the 2002 AUMF as authorizing military force
against Iran, except as may be necessary to defend U.S. or
partner forces as they pursue missions authorized under either
AUMF. The latter nuance is simply a reassertion of a
longstanding right of self-defense for our military forces and
those allies and partners deployed alongside of them. Simply
put, where U.S. forces are engaged in operations with partner
forces anywhere in the world pursuant to either the 2001 or
2002 AUMF, if those forces either come under attack or are
faced with an imminent armed attack, U.S. forces are authorized
to use appropriate force to respond where it is necessary and
appropriate to defend themselves. This principle is not new,
and it is not specific to Iran or to any other particular
country or nonstate group. The 2001 and 2002 AUMFs remain the
cornerstone of ongoing military operations in multiple
theaters, and are a demonstration of U.S. strength and resolve.
The 2001 AUMF provides the President authority to use
military force against al-Qaeda, the Taliban, and their
associated forces, including against ISIS. That authority
includes the authority to detain enemy personnel captured
during the course of the ongoing armed conflict. But, it is
important to note that the 2001 AUMF is not a blank slate. It
does not authorize the President to use force against every
group that commits terrorist acts or could have links to
terrorist groups or facilitators. As of today, the executive
branch has determined that only certain terrorist groups fall
within the scope of the 2001 AUMF, none of which are currently
state actors. These groups are al-Qaeda, the Taliban, certain
other terrorist or insurgent groups affiliated with al-Qaeda
and the Taliban in Afghanistan, al-Qaeda in the Arabian
Peninsula, al-Shabaab, al-Qaeda in the Lands of the Islamic
Maghreb, al-Qaeda in Syria, and ISIS.
The 2002 AUMF remains an important source of additional
authority for military operations against ISIS in Iraq and to
defend the national security of the United States against
threats emanating from Iraq. The United States also relies on
the 2002 AUMF as an additional source of authority to detain,
including in recent litigation.
As you know, Section 1264(b) of the 2018 National Defense
Authorization Act states that, ``Not later than 30 days after
the date on which a change is made to the legal and policy
frameworks for the United States use of military force, the
President is to notify the appropriate congressional committees
of the change, including its legal, factual, and policy
justifications.'' As such, there is a mechanism to report to
Congress if any changes to our legal assessments may occur in
the future, which has been used by this Administration on more
than one occasion. More generally, the Administration has kept
Congress informed about overseas operations on a regular basis,
consistent with the War Powers Resolution.
Beyond the AUMFs, Article 2 of the Constitution empowers
the President, as Commander-in-Chief and Chief Executive, to
order certain military action in order to protect the Nation
from an attack or imminent threat of attack, and to protect
important national security interests. The legal and historical
foundation of this constitutional authority to protect the
national security interests of the United States is extensive,
as you know. The Department of Justice's Office of Legal
Counsel has issued a series of opinions under both Republican
and Democratic administrations about the President's use of
Article 2 authority over more than two centuries.
Prior administrations have consistently relied on the
President's constitutional authority to direct military force
without specific prior authorization, including 2011 military
operations in Libya. More recently, OLC explained its view
concerning the April 2018 use of force against chemical weapons
targets in Syria.
Finally, besides not seeking any new AUMF at this time, the
Administration is also not seeking any revisions to the
existing AUMFs. We have sufficient statutory and constitutional
authorities to protect the national security interests of the
United States. If Congress were to consider a new or revised
AUMF, the Administration affirms the same three criteria stated
previously to the committee: first, that any new AUMF must have
no sunset provision; second, no geographic limitation; and
third, no repeal before replacement. We believe that any repeal
of the 2001 or 2002 AUMF before a new AUMF is in place would
cast doubt on the U.S. Government's continued authority to use
force against the terrorist groups subject to those
authorizations, including the scope of the U.S. Government's
detention authorities. It is also essential that any new
legislation not undermine the President's constitutional
authority to defend the Nation against threats or attacks.
Finally, anything casting doubt on our ability to respond in
self-defense to Iranian threats or attacks on U.S. or partner
forces or interests increases the risk and emboldens Iran to
make further provocations.
Mr. Chairman, Mr. Ranking Member, and other members of this
committee, I thank you again for the opportunity to testify,
and look forward to taking your questions.
[The prepared statement of Mr. String follows:]
Prepared Statement of Mr. Marik String
Chairman Risch, Ranking Member Menendez, distinguished Members of
the Committee, thank you for inviting me to testify today.
I am here today to address the Administration's view of the scope
of the 2001 and 2002 AUMFs as they relate to Iran, as well as more
general questions about the President's current authorities to use
force and the Administration's position on a new AUMF.
The Administration is not seeking a new AUMF against Iran or any
other nation or non-State actor at this time. In addition, the
Administration has not, to date, interpreted either the 2001 or 2002
AUMF as authorizing military force against Iran, except as may be
necessary to defend U.S. or partner forces as they pursue missions
authorized under either AUMF. The latter nuance is simply a re-
assertion of a long-standing right of self-defense for our military
forces and those allies and partners deployed alongside them. Simply
put, where U.S. forces are engaged in operations with partner forces
anywhere in the world pursuant to either the 2001 or 2002 AUMF, if
those forces either come under attack or are faced with an imminent
armed attack, U.S. forces are authorized to use appropriate force to
respond where it is necessary and appropriate to defend themselves or
our partners. This principle is not new, and it is not specific to Iran
or to any other particular country or non-State group.
The 2001 and 2002 AUMFs remain the cornerstone for ongoing military
operations in multiple theaters and are a demonstration of U.S.
strength and resolve. The 2001 AUMF provides the President authority to
use military force against al-Qa'ida, the Taliban, and their associated
forces, including against ISIS. That authority includes the authority
to detain enemy personnel captured during the course of the ongoing
armed conflict.
But it is important to note that the 2001 AUMF is not a blank
check. It does not authorize the President to use force against every
group that commits terrorist acts or could have links to terrorist
groups or facilitators. As of today, the Executive Branch has
determined that only certain terrorist groups fall within the scope of
the 2001 AUMF, none of which are currently state actors. These groups
are: al-Qa'ida; the Taliban; certain other terrorist or insurgent
groups affiliated with al-Qa'ida and the Taliban in Afghanistan; al-
Qa'ida in the Arabian Peninsula; al-Shabaab; al-Qa'ida in the Lands of
the Islamic Maghreb; al-Qa'ida in Syria; and ISIS.
The 2002 AUMF remains an important source of additional authority
for military operations against ISIS in Iraq and to defend the national
security of the United States against threats emanating from Iraq. The
United States also relied on the 2002 AUMF as an additional source of
authority to detain in recent litigation.
As you know, Section 1264(b) of the FY2018 National Defense
Authorization Act states that, not later than 30 days after the date on
which a change is made to the legal and policy frameworks for the
United States' use of military force and related national security
operations, the President is to notify the appropriate congressional
committees of the change, including its legal, factual, and policy
justifications. As such, there is a mechanism to report to Congress if
any changes to our legal assessments may occur in the future, which has
been used by this Administration on more than one occasion to keep the
relevant Committees informed. More generally, the Administration has
kept Congress informed about operations overseas on a regular basis,
consistent with the War Powers Resolution.
Beyond the AUMFs, Article II of the Constitution empowers the
President, as Commander-in-Chief and Chief Executive, to order certain
military action in order to protect the Nation from an attack or
imminent threat of attack and to protect important national interests.
The legal and historical foundation of this Constitutional authority to
protect the national security interests of the United States is
extensive. The Department of Justice's Office of Legal Counsel (OLC)
has issued a series of opinions under both Democratic and Republican
presidents about the President's use of the Article II authority over
more than two centuries.
Prior Administrations have consistently relied on the President's
Constitutional authority to direct military force without specific
prior congressional authorization, including in military operations in
Libya in 2011; a bombing campaign in Yugoslavia in 1999; troop
deployments in Haiti twice, in 2004 and 1994, Bosnia in 1995, and
Somalia in 1992; air patrols and airstrikes in Bosnia from 1993-1995;
an intervention in Panama in 1989; and bombings in Libya in 1986. Most
recently, OLC explained this view in its 2018 opinion concerning the
April 2018 use of force against chemical weapons targets in Syria.
Finally, besides not seeking any new AUMF at this time, the
Administration is also not seeking any revisions to the existing AUMFs.
We have sufficient statutory and Constitutional authorities to protect
the national security interests of the United States.
If Congress were to consider a new or revised AUMF, the
Administration affirms the same three criteria stated previously to
this committee: any new AUMF must have no sunset provision, no
geographic limitation, and no repeal before replacement. Any repeal of
the 2001 or 2002 AUMF before a new AUMF is in place would cast doubt on
the U.S. Government's continued authority to use force against the
terrorist groups subject to those authorizations, including the scope
of the U.S. Government's detention authority over such groups.
Amending the 2001 AUMF could also create substantial, avoidable,
and unnecessary litigation risk by potentially unsettling the existing
legal framework as to current detainees.
It is also essential that any new legislation not undermine the
President's Constitutional authority to defend the nation against
threats or attacks.
Anything casting doubt on our ability to respond in self-defense to
Iranian threats or attacks on U.S. or partner forces or interests
increases risk and emboldens Iran to make further provocations.
Chairman Risch, Ranking Member Menendez, and other Members of this
Committee, I thank you again for the opportunity to testify before you.
I welcome the opportunity to answer your questions.
The Chairman. Thank you, Mr. String.
We are going to do a round of questions now, and we will
start with Senator Menendez.
Senator Menendez. Thank you, Mr. Chairman.
Thank you both for your testimony.
Secretary Hale, I know that you focused your entire
testimony on Iran. And, while Iran maybe creates a focal point
for our attention on AUMF, this hearing is in a broader context
about authorities under AUMF.
So, let me start with you, Mr. String. Do you believe that
the Administration has any legal authorization to use military
force against Iran, beyond self-defense of U.S. Armed Forces
and personnel in the region?
Mr. String. Thank you, Senator, for the question.
As stated in my opening statement with respect to the 2001
and 2002 AUMFs, the Administration has not determined, to date,
that either one of those statutory authorizations would apply
or authorize force against Iran----
Senator Menendez. Let me stop you there. ``Has not
determined, to date.'' ``To date'' is the very operative word
in that sentence, and that is the same statement that was made
to Chairman Engel in the House in a letter from Ms. Taylor, the
Assistant Secretary for Leg Affairs, ``The Administration has
not, to date, interpreted either AUMF as authorizing military
force against Iran.'' So--that is not my question. My question
is, does the Administration have any legal authorization to use
military force against Iran, beyond self-defense of U.S. Armed
Forces and personnel in the region?
Mr. String. Thank you, Senator, for pointing out the nuance
in the letter. And it is important nuance, because what we can
comment on is the facts that are presented to us as attorneys
in the executive branch. The assertion that you referenced is
based on the facts that we know today, that, to date, we have
not made any such determination. I would also note that the
Office of Legal Counsel has extensively analyzed the scenarios
under which the President could exercise use of force,
generally, with respect to any national security threat. That
is not an unlimited or unbounded authority. The Office of Legal
Counsel has laid forth two important----
Senator Menendez. You do not believe, as the President
said, I think, a day or two ago in a speech, that Article 2
allows the President to do anything he wants.
Mr. String. The Office of Legal Counsel has issued numerous
opinions laying out the parameters, Senator, of any----
Senator Menendez. Well, that is a simple yes or no. Does
Article 2 of the Constitution of the United States say the
President can do anything he wants?
Mr. String. The Office of Legal Counsel has laid forth
particular criteria that must be followed in any assessment of
any use of force pursuant to the----
Senator Menendez. But, if the President, tomorrow, without
any further provocation, wants to have military action against
Iran, does he have any authorization, as of this point in time,
to do so?
Mr. String. Again, Senator, I just refer back to the legal
opinions that have been issued to date under this
Administration and previous administrations about the criteria
that lawyers would look at in order to determine whether a use
of force under the Constitution is justified.
Senator Menendez. Let me ask Secretary Hale. Will the
Administration commit to seeking congressional authorization
for any military action against Iran, other than a self-
defensive one?
Ambassador Hale. I can certainly assure you, Senator, that
we will act in accordance with the law and seek consultations
with the Congress.
Senator Menendez. That is not a commitment to seek an AUMF.
Mr. String, do you think it is necessary for Congress to
pass a new AUMF in order for the Administration to enter into
military conflict with Iran?
Mr. String. Senator, thank you for the question.
So, again, I will assert what I said before about the
longstanding authority that both Republican and Democratic
administrations have determined to exist under the Constitution
to protect the United States and our national security
interests. It is a necessarily flexible authority. However, we
are committed to keeping the committee, the Congress, fully
informed about how we think about these issues. We have
submitted, a few months ago, the so-called 1264 Report, which
talks about how we think about issues surrounding the use of
force. We submit----
Senator Menendez. This Administration, generally, is not
very cooperative in giving members of this committee
information, so I am not too, you know, warmed by that
suggestion.
Can you explain the need for ``to date'' caveat in the
letter sent by Chairman Engel? What would you expect the
Department's interpretation would change from ``to date'' to
``tomorrow''? What would change?
Mr. String. Thank you, Senator.
Again, as an attorney in the executive branch, we can only
comment on the facts before us. It is a tumultuous region, and
it would be difficult to speculate on what facts may arise in
the future, and we would be asked by clients in the executive
branch as to what might change, if anything.
Senator Menendez. Well, let me just say, I am not asking
you to be hypothetical, but the AUMF is an 18-year-old law that
was passed without any thought regarding Iran. What would lead
to a change in interpretation so that it could apply to Iran,
when the plain language, legislative intent, and 18 years of
interpretive history remain the same?
Mr. String. Thank you, Senator. I appreciate the question.
And again, I just have to go back to the same statement----
Senator Menendez. And I would appreciate a real answer.
Mr. String. Well, we cannot comment on hypothetical factual
scenarios in----
Senator Menendez. It is not a hypothetical. I have just
told you the facts. That is not a hypothetical. It is not a
hypothetical at all. It was very clear. Iran was not even in
the focal point 18 years ago. Iran is not mentioned in the
AUMF. There is nothing that has happened that that original
AUMF authorized. This caveat, that ``to date,'' creates a great
deal of anxiety that you are all going to interpret this
authorization, which is beyond the pale, to enter into a
military engagement with Iran other than in response to an
action that protects our personnel and our military. And I have
to tell you, there is no appetite here to accept such an
interpretation. And, at the end of the day, we are not going to
get dragged into a war, when we have authorities over monies.
So, we need a clearer response. Because I am not asking you for
a hypothetical. I am asking you based on the facts that exist.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator.
Senator Cardin.
Senator Cardin. Well, thank you, Mr. Chairman.
Let me thank both of our witnesses.
Mr. String, I just want to go back to the '01
authorization, the current ambiguity in regards to
authorizations concerning Iran and what is the proper position
for the United States to be in globally on the use of military
force. I would think any Administration would be in a much
stronger position if there is unity between Congress and the
executive branch on our resolve for our policies and what is
backed up with the Authorization for Use of Military Force.
And I hope you appreciate what has been said here about the
2001 authorization. It is personal to some of us because we
voted for it. And there was, at the time that we voted on that
authorization, such a need for unity in this country to show
resolve against the attack on our country on 9/11. And we
wanted to make it clear that the President had complete
authority to respond to the horrific attack on our country. I
remember that debate very well. I participated in that debate.
And it was clearly aimed at those that planned the attack
against us and those who harbored those who planned the attack
against us. And the interpretation, now, of three
administrations to apply that '01 authorization to contemporary
issues is totally absurd. Absurd. It is not what Congress
intended.
Now, we have had administrations who have at least come
forward and said, ``Let us update that authorization. Let us
debate what the authorization should be for the use of force
against a current threat against this country.'' I am
disappointed, if I understand your position. You are not coming
to Congress for an authorization for force in regards to the
current terrorist threat against this country. I find that
extremely disappointing because you do not have the unity in
Congress that a debate like that would lead to. And now, yes,
the most recent challenge is what is happening in Iran. And
Senator Menendez is absolutely right, there is no appetite here
for use of force. We believe that would be counterproductive to
America's national security interests. And your letter says,
basically, ``At this time, we do not intend to use the '01
authorization, but we reserve all rights.'' And that leads to
nervousness in the Article 1 branch of government as to how we
can express ourselves, where it would be much stronger if we
could express ourselves in unity with an Administration as to
the resolve of this Nation to fight those who want to harm us.
So, I am just expressing my frustration because I am afraid
I am going to wake up one day and see American men and women in
harm's way, ordered by the President of the United States,
under the statement that has been authorized by Congress--which
I do not believe we have authorized, which is going to cause
division in this country, not strength. And, while we still
have time to act, why are you not presenting to us an
authorization that represents the current circumstances of this
country, and not what we experienced in 2001?
Mr. String. Thank you, Senator, for the questions. I can
answer that in a couple of different ways.
First, as to your first principle as to whether the United
States is stronger when the executive branch and Congress act
in concert, I fully agree with that proposition. I think
everyone in the executive branch would agree that we are
stronger as a Nation when we are aligned. What I have said in
my testimony today is that we are not seeking a new AUMF,
because we believe, at this time, that we have sufficient legal
authorities to protect the United States against threats around
the world.
That being said, we also respect the institutional
prerogative of this committee, of this institution, to consider
a new AUMF. And what we have tried to do is lay down some
guideposts for what we think some of those key criteria would
be in a new AUMF. And that is, as I mentioned in my opening----
Senator Cardin. I would just submit to you, the chances of
us passing an AUMF that is contemporary to needs without the
active request from the Administration is rather remote.
Mr. String. I take your point. At the same time, we are
willing to provide feedback on any proposals----
Senator Cardin. And what you might get from Congress is
restrictions that we can get into statute that you do not want,
that you will have an option either to accept or veto a major
bill because it is in there. I do not think that is the right
way to proceed.
Mr. String. Okay. Thank you. I respect that point.
I will just note, also, with respect to the 2001 AUMF, it
is also not an unbounded legal authority. There was a very
careful interagency process which the previous Administration
actually laid out in a 2016 report to Congress that describes
how the executive branch would consider adding a new group to
be a potential target under the 2001 AUMF.
Senator Cardin. You are reinforcing my objections. The next
Administration may add a different standard to it. And this was
never anticipated when this authorization was given by
Congress. I really do appreciate your efforts, and understand
the deep frustration that is in this body.
The Chairman. Thank you, Senator Cardin.
Senator Coons.
Senator Coons. Thank you, Chairman Risch, Ranking Member
Menendez, for holding this hearing.
And I want to thank Under Secretary Hale and Mr. String,
Acting Legal Adviser, for your time today.
As we have covered so far, 18 years ago, this body came
together in the aftermath of 9/11 to pass a resolution
authorizing the President to use force against those
responsible for that heinous and cowardly attack. And that
passed by overwhelming margins. But, neither most of my
colleagues nor the American people ever imagined that that 2001
vote would be used to justify U.S. force in places like Yemen
or Libya or Somalia, as it is today. In fact, my review
concludes that only 18 Senators who voted in favor of that
resolution as Senators in '01 are still in office, and not one
of the currently serving Foreign Relations Committee members
voted for it as Senators, although a few did as House members.
So, that means the overwhelming majority of us here today, more
than 80 percent of the currently serving Senators, have not
voted either in favor or against the way our government is
using military force today against international terrorist
groups. Of course, I believe that we should continue to fight
al-Qaeda and ISIS. But, I think we need to update the authority
we are using, to make sure it is relevant to today's fight, to
make sure it engages and sustains not just the consent but
support of the American people. I believed this when President
Obama was in office and advocated for it. And I continue to
believe it today.
The Constitution divides warmaking power and responsibility
between Congress and the President, for a good reason. And
since 2001, I believe far too much power has gone to Presidents
of both parties. And Congress needs to do more to ensure that
the executive branch seeks and gets permission of the people's
branch before extending the authority to wage war to new
geographies or new associated forces. I think we, as elected
leaders and policymakers, owe it to the men and women who fight
overseas on our behalf to debate the use of force.
So, let me briefly say a word about Iran. I do not believe
either the '01 or '02 AUMFs authorize war with Iran. And I do
not think that Iran can be linked to al-Qaeda, ISIS, or other
associated forces detailed in those AUMFs. And I think the
President, if he is contemplating using military force against
Iran, must come to Congress to seek authorization. And I want
to commend my colleague from New Mexico, Senator Udall, for
leading an effort for us to have a vote on this issue and to
continue to advance this issue. And I think, given recent
tensions with Iran, this committee should have an open,
unclassified hearing on Iran with Secretary Pompeo or Brian
Hook. I am concerned that, after the President's unilateral
withdrawal from the JCPOA, Iran's bad behavior has increased
dramatically, and our ability to rally our allies in the face
of this provocation has decreased. So, I welcome this
conversation and think it is important we continue to have a
say, not on how we used force 18 years ago, but how we are
using it today and in the future.
So, Ambassador Hale, if I might, the Washington Post
reported, this week, a thousand ISIS fighters have crossed into
Iraq, and there are reports that they have captured territory
in Afghanistan, as well. What are we doing to ensure that ISIS
does not retake territory in Iraq and Syria, or simply shift
its operations into new areas? And what is our strategy to end
these conflicts? The caliphate, as a geographic area, may have
ended, but I do not think the fight against ISIS is over.
Ambassador Hale. Well, Senator, thank you for your comments
and for your question.
I certainly agree with you that the fight is not over. We
are, unfortunately, going to have to continue to do everything
we can to wrap this up. We may have to continue the military
pressure on ISIS fighters, but they have a remarkable ability
to reconstitute themselves in stateless areas, which is what
you have just referred to. I do not have specific facts to
confirm the Washington Post's story, but this is the kind of
phenomena that we have seen before from ISIS, and our strategy
is not just military pressure, but, I think, more
significantly, to build up the capacity of our partner nations
in the region, the leadership of Iraq, the leadership of
Afghanistan, so that they are capable of dealing with this
problem, and to eliminate the stateless areas that are,
unfortunately, the breeding ground for this phenomenon.
Senator Coons. One of my concerns is that we not lose focus
in the ongoing fight against ISIS as the Administration and
many of us shift focus to Iranian actions in the Gulf, as we
lost focus on Afghanistan when we went to war in Iraq.
Mr. String, if all the forces we are currently fighting
around the world are covered by the '01 AUMF, why do we need
the '02 AUMF at all? If the '02 AUMF were repealed, is there
something we are currently doing around the world that would
have to stop?
Mr. String. Thank you, Senator. I had a good discussion
with your staff about this question, as well, the other day.
I cannot point to a discrete set of operations that would
be exclusively authorized right now under only the 2002 AUMF,
but this is how we think about it. In 2011, the situation in
Iraq was very different than it was today. We thought, in 2011,
the need for an AUMF with respect to Iraq was abating. The
situation changed very quickly in Iraq, and the previous
Administration made a decision that the 2002 AUMF may have
become more relevant again. So, there is an ongoing relevance
for both our operations in Syria as a source of a supplemental
authority for Syria and Iraq. Secondly, we continue to rely on
the 2002 AUMF for certain detention activities. We have cited
this provision in recent litigation. And so we do continue to
rely on it in the courts, in the third branch of government.
Senator Coons. I do think we should be capable enough and
strong enough to provide continuing authorities for appropriate
detention activities and authorization for ongoing conflict
without relying on, I think, now badly outdated authorities.
Let me just, in closing, reference a letter that I led with
four colleagues about the condition of hundreds of American
citizens, including 230 children, stranded in Malaysia with
their Yemeni families, waiting to obtain visas to the United
States. The travel ban, the so-called ``Muslim ban,'' does not
have the sort of functioning exemption process that had been
proffered in court. And I have not yet gotten a response to a
letter about these cases of hundreds of stranded citizens. Will
I get a response from the Administration to this letter of last
month?
Mr. String. Thank you, Senator. I have not seen the letter,
but I will look into it and ensure that we can get you all the
information you need in response to that.
Senator Coons. Happy to make sure you have a copy today.
I just want to join my colleague from New Jersey in his
concerns about the phrase, ``We have not interpreted, to date,
either AUMF.'' I think, as a policy matter, not as a matter of
lawyering carefully, the Administration has to consult and get
the approval of Congress before beginning any conflict with
Iran.
Thank you.
The Chairman. Thank you, Senator Coons.
We will now turn to Senator Udall.
Senator Udall. Thank you, Mr. Chairman, and thank both
Senators Risch and Menendez for pursuing this hearing.
Under Secretary Hale and Acting Legal Adviser String, you
are here before us because Congress, with the power to declare
war, holds one of the most important responsibilities of any
branch of government. There have been legitimate questions
surrounding this Administration's Iran policy and whether
proponents of war with Iran would attempt to usurp our
constitutional authority. That is why I introduced the
Prevention of Unconstitutional War with Iran Act with Senator
Paul and others, and why I worked with Senators Kaine, Merkley,
and Murphy and others to force a vote on a related bipartisan
amendment on the floor. A bipartisan majority of members in
both the Senate and the House voted to include this amendment
in the NDAA. Finally, I hope that the conference report
includes this prohibition.
The 9/11 Commission report concluded, and I quote here,
``We have found no evidence that Iran or Hezbollah was aware of
the planning for what later became the 9/11 attack.'' Do both
witnesses acknowledge this conclusion from the 9/11 report?
Mr. String. Yes, Senator.
Senator Udall. Yes?
Mr. Hale?
Ambassador Hale. Yes, sir, I do.
Senator Udall. Thank you.
In testimony before this committee in 2017, John Bellinger
III, the State Department Legal Adviser under Secretary Rice,
stated that he was involved with the drafting of the 2001 9/11
AUMF. He testified that the 2001 AUMF was very broad in the way
that it was written to authorize all necessary force, but he
also underscored that the language he helped draft had, quote,
``one important limitation. It authorizes force only against
nations, organizations, and persons who planned, authorized,
committed, or aided the 9/11 attacks.''
Mr. String, do you agree, as former Legal Adviser Bellinger
concluded, that, in order to use force, the 2001 AUMF requires,
``a nexus to the 9/11 terrorist attacks''?
Mr. String. Thank you, Senator, for that question.
So, the way that we interpret the 2001 AUMF----
Senator Udall. It is a pretty simple yes-or-no on that, I
think.
Mr. String. Yeah, and I will----
Senator Udall. If you would start with a yes or no and then
give your----
Mr. String. If I could elaborate just how we think about
the scope of the 2001 AUMF, there are two prongs to consider
whether a particular entity or group could become a target
under the 2001 AUMF. The first prong is whether an entity is,
de facto, part of al-Qaeda. So, that is prong one. Prong two
is, we look at whether a particular entity could constitute a
cobelligerent with al-Qaeda or the Taliban against the United
States. So, broadly speaking, how we are continuing to
interpret the AUMF is consistent with what Mr. Bellinger said,
but I wanted to get in a little bit more granularity about how
specifically we think about the 2001 AUMF today.
Senator Udall. The War Powers Act has been interpreted to
allow the Commander-in-Chief to retain numerous powers
historically associated with the executive branch. These powers
include the ability of the President to rescue hostages, defend
our Armed Forces, and repel an imminent attack against the
United States territories or possessions or its Armed Forces.
Do you agree with this interpretation, Mr. String?
Mr. String. Senator, that was a quote from the War Powers
Resolution?
Senator Udall. It is a summary of the War Powers Act, which
is law, what it does.
Mr. String. I do not have that Act in front of me, so that
sounds like a correct summary of what is in that piece of
legislation.
Senator Udall. And it was reported that the United States
recently brought down an Iranian drone, using electronic
countermeasures after its approach brought it too close to the
USS Boxer. Prior to that, Iran shot down an American unmanned
aerial vehicle. Mr. String, in your legal opinion, do these
actions constitute hostilities, as set forth in the War Powers
Act?
Mr. String. I cannot get into that type of determination
right now, but I will say that, and particularly with respect
to the drone that closed within a threatening range of the USS
Boxer, the United States acted to ensure the safety of the ship
and the crew. But, we have not made any determination, that I
can talk about, about the hostilities issue, at this point.
Senator Udall. Thank you, Mr. Chairman.
The Chairman. Thank you.
For members, a series of three votes has started. There is
about 7 minutes left on the first vote. And so, we are going to
have to deal with that. But, we will.
And, Senator Romney, you are up for questions.
Senator Romney. Thank you, Mr. Chairman.
Clearly, there is a great deal of concern, on the part of
all the members of this committee, about the line that exists
between the constitutional authority that the President has to
defend our troops, defend our citizens, defend our country, to
respond to attacks, to deter future attacks, and the like, and,
on the other hand, the declaration of war, a decision to engage
in war conduct somewhere in the globe. And we have had a
difficult time, as a body, defining where one authority begins
and the other ends, or the other begins. And I do not know
whether you have a description for us that will be better than
the current legislation that exists.
But, with that as an introduction, I wanted to get your
thoughts on a couple of things. First of all, there had been
some rhetoric--and I do not think it is advanced by any of the
members of this committee--that implies that the President of
the United States could not respond to an attack on U.S. forces
or U.S. citizens without first getting a vote for Congress. I
believe, Mr. String, you would concur that, when there is an
attack on our citizens, our properties, our Armed Forces, that
there is authority for the President to respond immediately.
Mr. String. Yes, Senator, I agree, that is a flexible
authority granted by the Constitution.
Senator Romney. I guess the next question would be one
which is a little different than that, which is not just
defending our troops or our citizens in an attack, but if, for
instance, a drone or a--heaven forbid, a--an aircraft were shot
down by a foreign adversary, the question is, would the
President, after due deliberation and consideration with his
advisors, have the capacity to respond in like manner or in a
similar manner to--even though 2 or 3 days might have passed,
would he be able to respond, perhaps shooting down an aircraft
of theirs or taking some other kind of hostile act to show that
that was unacceptable on the part of the United States, or
would he require the approval of the United States Congress
before he was able to respond, in the event that--for instance,
a drone or an aircraft were shot down?
Mr. String. Thank you, Senator.
So, without getting into any particular factual scenario,
the Office of Legal Counsel at the Department of Justice has
identified a number of important U.S. interests which the
President could protect using his Article 2 constitutional
authority. These refer to important interests, such as
protecting U.S. persons, supporting allies, advancing regional
stability. So, in general, the President has some authority to
engage in limited types of military action in a manner short of
war, in a constitutional sense. So, that is an important
bounding factor for the constitutional authority.
Senator Romney. Can you be more definitive than that
distinction, which is ``limited military response,'' as opposed
to ``engaging in war''? Do you have a sense of where ``limited
military response'' ends and war begins?
Mr. String. Thank you, Senator. It is a good question.
How the executive branch looks at these questions, it is
really a facts-and-circumstances analysis. Some of the factors
that we would look at are the nature, the scope, and the
duration of any military action, whether military action would
last a matter of hours or a matter of days. So, as the risk of
a longer, prolonged conflict increases, I think it would
obviously get closer to the concept of a war, in a
constitutional sense.
Senator Romney. Thank you.
We have also had some discussion recently, particularly
with regards to arms for the Saudis in the conflict going on in
Yemen, with regards to the definition of ``hostilities'' and
whether we were engaged in hostilities as a nation by virtue of
furnishing weaponry to the Saudis, whether we might be engaged
in hostilities by providing intelligence or providing aircraft
refueling and the like. Can you shed some light on the
Administration's view on what does constitute hostilities, and
what does not?
Mr. String. Thank you, Senator. Another very good question.
So, the precise analysis as to ``hostilities,'' I think we
should discuss in a different setting. But, the one critical
factor that we have talked about with Congress in previous
communications is whether there has been an exchange of fire
between U.S. and hostile forces. So, that is one factor. There
are other factors, which we need to be in a different setting
to discuss. But, with respect to support to some Gulf partners,
the Administration's view, as I think you know, is that the
types of logistics and defense services, defense articles that
the executive branch, across administrations, has been
providing falls well short of ``hostilities,'' as that term is
used in the War Powers Resolution.
Senator Romney. Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Romney.
Senator Murphy.
Senator Murphy. Thank you very much, Mr. Chairman.
Ambassador Hale, thank you very much for being here and for
all your incredible work in and around----
Senator Menendez. Would my colleague yield for just a
second?
Senator Murphy. Certainly.
Senator Menendez. In terms of process, Mr. Chairman, the
first vote is now expired, and I know there are other members
that definitely want to ask questions in this regard. Is it the
Chairman's intention to recess, subject to the call of the
Chair? Is it the Chairman's intention to continue rolling
through this? I just want to make sure I tell colleagues, when
they ask me what we are doing, what we are doing.
The Chairman. My intention was to keep going, but, given
the limited number here, it probably would make sense to recess
briefly and reconvene here as quickly as we can get back. Would
that----
Senator Murphy. Why do not we do that now, then?
The Chairman. --be agreeable with all parties? Seems to be.
So, with that, the committee will be at ease, subject to the
call of the Chair.
[Recess.]
The Chairman. The committee will come back to order.
And Senator Murphy had the floor.
Senator Murphy. I forgot what I was going to ask, but----
[Laughter.]
The Chairman. Well, moving right along, then.
[Laughter.]
Senator Murphy. Thank you very much.
And thank you for sticking around with us.
Ambassador Hale, I was in the middle of asking you a
question about your perception of legal authority for
hostilities. Some of us are concerned about the way in which
the President construes his inherent Article 2 authority. And
so, I wanted to just confirm that there are really two legal
justifications for a military strike against a country like
Iran. The first would be that we are responding to an attack or
we are attempting to prevent an imminent attack. That would be,
as Mr. String has articulated, within the President's Article 2
authority. The second would be that the Administration comes to
the conclusion that there is an existing congressional
authorization that would cover such action, or that the
Congress passes a new authorization. But, I just want to make
sure that I am right, in general, that the two ways you could
strike Iran is if you are responding to attack, or defending
against an imminent attack, or you have an authorization from
Congress.
Ambassador Hale. Well, thank you, Senator.
Those do seem to be fairly specific legal questions. Would
you mind if the Acting Legal Adviser responded?
Senator Murphy. I do not, as long as we get an answer.
Ambassador Hale. Sure.
Senator Murphy. I was, maybe, hopeful you might give a
little bit clearer answer than we have gotten from Mr. String.
But, I will put it to Mr. String.
Mr. String. Thank you, Senator.
So, under U.S. law--I think your question is under U.S.
law, rather than international--but, under U.S. law, there
would need to be an AUMF, an authorization for the use of
force, by Congress. And, as we have stated, there has been no
determination, to date, that either AUMF would apply to Iran.
And then, secondly, you talked about the constitutional
authority. In previous OLC opinions across administrations, the
authority has been described to be a little more flexible than
what you stated. So, there needs to be a precise national
interest that has been articulated by a President in order to
justify the use of force under the Constitution. Some of those
types of national interests that have been identified in the
past are: protection of U.S. persons or property, support of
allies, support of U.N. Security Council Resolutions, promoting
regional stability, deterrence of the use of WMD. So, it is a
little more flexible than you described, Senator, but it is
broadly in line.
Senator Murphy. Yeah, I think the issue that you will find
with many of us is that that list would seem to describe almost
any reason to use broad Article 2 authority to engage in
hostilities. And so, I think there will be a difference between
our interpretation of that Article 2 authority and your Article
2 authority.
Mr. Hale, I wanted to follow up on your opening statement
regarding the present situation with Iran. There has been a
great deal of confusion as to what the Administration's
position is with respect to negotiations with the Iranians. Say
what you will about President Obama, he was pretty clear that
he wanted a negotiation on their nuclear weapons program, and
setting aside their other malevolent activity for future
negotiations. The Iranians have telegraphed a potential
interest, perhaps on terms that are unacceptable to us, but an
interest nonetheless, to enter into negotiations. Is the United
States prepared to sit down and talk with the Iranians if the
subject is limited to their nuclear program or their potential
nuclear weapons program, or are we still insisting that they
commit to opening up negotiations on a host of other activities
before we would entertain any discussions?
Ambassador Hale. The objective of our entire strategy here
is to seek a negotiated outcome with Iran that is
comprehensive, that covers the nuclear issue, the ballistic
missiles, advanced weaponry, the malign behavior in the region,
human rights practices, and treatment of U.S. citizens. We are
open, today, to dialogue without preconditions. The President
has signaled that consistently. We are ready to do that. But,
the goal would have to be a comprehensive agreement along the
lines I said.
Senator Murphy. So, the position still remains: no
preconditions, you are willing to sit down and talk, today.
Ambassador Hale. That is correct.
Senator Murphy. Lastly, let me sneak one last in for Mr.
String. And I apologize for going backwards and forwards.
I wanted to talk about this authority to protect partners.
Now, I may disagree with you there is a broad Article 2 ability
to protect partners without congressional authority, but let us
drill down on the existing 2001 authorization. And you have
referenced that the 2001 authorization may give you broad
authority to protect partners who are engaged in fights with us
against the enemy. I would submit that you are right, if they
are engaged in fights against a named enemy under the 2001
authorization, and that enemy has attacked them. But, what
about the case in which a group not listed in the 2001 AUMF has
attacked a partner who is a partner in the fight against ISIS
or the fight against al-Qaeda, but has been attacked by an
entity that is not listed in the 2001 AUMF? Do you have any
responsibility to come to Congress to launch an attack against
that new entity, or is any attack against a partner of ours in
the fight against extremism covered--our response to it covered
under the 2001 AUMF? I think--you are nodding, so I think you
get what I am asking.
Mr. String. Yeah. Thank you. I appreciate the question,
understand the question.
So, Senator, what you have laid out is a very fact-specific
hypothetical. And I prefer not to get into answering very
hypothetical questions. I think what we have articulated in the
testimony today is the first scenario that you mentioned, in
that when U.S. forces are deployed alongside partners and
allies, we have a right to defend our forces and those partner
allied forces as they, together, are pursuing missions pursuant
to either the 2001 or 2002 AUMF. So, that was the core
proposition that we are----
Senator Murphy. But--you are prepared to argue
affirmatively in that hypothetical, but you are not prepared to
say you do not have the authority in the case that they are
attacked by an entity not named by the Administration as a
terrorist group affiliated with al-Qaeda.
Mr. String. Well, in some ways, the answer that I provided
is not necessarily hypothetical, because I can cite a couple
examples where we have actually exercised authority to protect
our own forces as they are engaging in certain operations
pursuant to the 2001 or 2002 AUMF, and come under attack by
another group. For example, in 2011, U.S. forces were engaged
in an operation in Iraq, and came under threat from some
Iranian-backed militia groups. And, under the proposition that
I laid out, our forces were able to respond appropriately to
that threat.
Senator Murphy. Okay. I have gone over my time.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Murphy.
Senator Young.
Senator Young. Well, thank you, Mr. Chairman, for agreeing
to hold this hearing, per my request and, I know, the desires
of other members of the committee.
Welcome, Mr. Hale and Mr. String.
In 1990, I graduated from high school. And, within weeks of
graduating from high school, I enlisted in the U.S. Navy. And,
within months of enlisting in the U.S. Navy, our Nation was
marching towards war. And our Congress authorized the use of
military force against Iraq. That was the first Gulf War. And
there are a number of members of Congress that are now serving
in the House of Representatives who were born after that period
of time. That law is still on the books. So, I think it is
right and appropriate that Congress has a public hearing about
this matter. You know, what is Congress's role in determining
when we authorize use of military force, or, more pointedly,
when we declare war?
The parameters of this conversation here today are far more
important than the here-and-now situation as it relates to
Iran. I think they speak to the very heart and soul of this
institution. I can think of no more fundamental responsibility
than authorizing force and sending our men and women into
harm's way. So, this is going to define the future of this
institution for years to come.
The Chairman started off the hearing indicating that this
is a really tough issue. In fact, 535 different views up here
on the Hill, and then a number of different views in the
executive branch. It is that latter part that I think often
provides real challenges. And, I think, to the extent there are
multiple views in the executive branch, that creates a problem,
because if there are multiple views, there really is not one
singular view, and there is no rule with respect to when we go
to war, or do not go to war. So, hopefully, we will get clear
answers to a couple of questions I have.
Iran, they have been engaging in various escalatory
activities. And if they continue with these activities--
civilian oil tanker attacks, attacks against energy
infrastructure, perhaps they may attack U.S. military forces
that are located in the region directly--an isolated strike,
like we did in Syria in 2017 and 2018, not done under an
Authorization of the Use of Military Force, but instead under
Article 2 prerogatives of the President, a surgical strike
seems like it may not be possible, given Iran's capabilities
and their proximity to U.S. assets and our partners and allies
in the region, and their hardened network of terrorist proxies.
So, recognizing that deterrence matters, but also that the role
of Congress is fundamental here as we contemplate military
force, how you gentlemen and others advise the Secretary and
the President on these matters is quite important.
So, how do you balance responsibly our responsibility to
maintain international order and dissuade a threat against our
interests, on one hand, versus the awareness that a surgical
retaliatory strike may not be possible in Iran?
Yeah, Mr. String.
Mr. String. Thank you for the question, Senator.
And, as I was discussing with Senator Cardin earlier, I
completely agree with the proposition that when the executive
branch and Congress are in alignment on a particular issue,
that makes the United States all the stronger. So, complete
alignment on that.
You have touched upon an important aspect of the analysis
that would go into any decision to use force under the
Constitution, under Article 2 of the Constitution, the
Commander-in-Chief or the Chief Executive power. So, what
executive branch attorneys would look at is whether a
particular action would lead to a war, in the constitutional
sense. That is an important limit under the constitutional
authority, under Article 2. And so, how we would interpret
that, we would look at particular facts and circumstances that
would inhere as a result of a particular strike, in your
example. We would look at things like the nature and the scope
and the duration of a----
Senator Young. Yes, those are factors.
Mr. String. Yes.
Senator Young. And I have heard you mention them from when
previous questions were asked. So, let me interject with a
tactical question.
We have our naval assets in the region, in part, because we
are sending a lot of jets to Saudi Arabia. We ought to be
encouraging them to purchase vessels so they can do more of
their own security. But, nonetheless, we are there,
appropriately, I think, for deterrence, as well as to make sure
that region maintains a measure of stability. Is it the
Administration's view that an attack on a U.S. Navy ship or
plane is--that our assets are under some obligation to respond
with force, rather, if a civilian vessel is attacked, say an
American civilian vessel is attacked by Iranian forces while
transiting those waters where we have a military presence?
Mr. String. So, in terms of an attack on a U.S. naval
vessel, a lot of different factors come into play, including
some more tactical rules of engagement, which I think the
Department of Defense is probably better positioned to answer.
Senator Young. What about a civilian vessel?
Mr. String. I do not want to get into any legal conclusion
that would flow from an attack on a civilian vessel. That would
be, obviously, very concerning, for a number of policy reasons.
But, I would not want to provide a legal conclusion as to what
would be authorized as a response. It would be an extremely
concerning situation, as it has been----
Senator Young. What authorities might allow the United
States to respond militarily to an attack on a civilian vessel?
Mr. String. Well, as we were discussing earlier, without
getting into any factual situation, the Commander-in-Chief
power under Article 2 is flexible, depending on what particular
facts were presented by an attack. So, I cannot provide a legal
conclusion as to what authorities may be used, but we are
confident that the President has the right authorities to keep
the Nation safe.
Senator Young. Okay. And let me pivot briefly to another
authorization. Because we have had a number of them, and many
of them have been on the books for years and years and years.
So, the 2002 AUMF--is Iraq an ally of the United States of
America, as I have heard from other members of Department of
Defense and Department of State, both in private settings and
in public settings? Are they an ally of the United States of
America? Is the Iraqi government an ally of the United States
of America?
Ambassador Hale. I would characterize the relationship as
one of partnership. We work well with the Iraqi leadership,
with President Salih, with----
Senator Young. You would not tell their top leadership they
are allies of ours?
Ambassador Hale. Well, perhaps it is more----
Senator Young. Or our Secretary----
Ambassador Hale. --of a legal terminology as to whether we
have a formal treaty alliance with them. I do not believe we
do. But, this is a very strong partnership, and we are very
committed to helping the Iraqi government achieve its goal, our
goals, of stabilizing their country and securing control over
all of their territory, and countering the malign influence of
Iran.
Senator Young. Well, I think the current government is,
indeed, a strong partner, and we need to do what we can to
defend them against--whether it is encroachment from Iran or
some internal extremists. I do not think we need to be prepared
to wage war against them. And yet, we have this 2002 AUMF on
the books. So, does the Administration oppose the repeal of the
2002 AUMF?
Mr. String. Thank you, Senator.
We believe we have important authorities under the 2002
AUMF that we still utilize for a couple of different types of
operations. First, we continue to rely on the 2002 AUMF for
certain operations, both in Iraq and in Syria. So,
operationally, it is still relevant to what the Department of
Defense is pursuing. Secondly, we also rely on the 2002 AUMF in
litigation to defend some of our detention activities. So, it
is something that we continue to cite in court filings in
various litigation.
Senator Young. So, it is under great dispute. It is under
great dispute whether or not the--you say it is under, you
know, court filings, and there is litigation. So, the
parameters of that agreement and what it allows--the authority
it allows the executive branch is--there is a dispute about
that.
Mr. String. Senator, I would characterize it a little
differently, in terms of the----
Senator Young. Please.
Mr. String. --in terms of the litigation.
Senator Young. Yes.
Mr. String. We have asserted, in litigation, that certain
of our detention activities rely on both the 2001, 2002 AUMFs,
as well as Article 2 of the Constitution. So, it is something
we rely upon. I would not say that it is necessarily in formal
dispute, but it is something that we actively assert.
Senator Young. Thank you.
The Chairman. Thank you.
Senator Markey.
Senator Markey. Thank you, Mr. Chairman, very much.
We are here discussing whether President Trump can strike
Iran because President Trump's Iran policy is a disaster. And
the President does not have clear authority to attack Iran
under current AUMFs. And what is worse, some in the
Administration are using the chaos to try to provoke a fight.
Ambassador Hale, yes or no, is Iran not enriching more
nuclear material to higher enrichment levels now than it was
before President Trump unilaterally withdrew from the Iran
nuclear agreement?
Ambassador Hale. Yes, I believe they are.
Senator Markey. So, pulling out of the nuclear deal has
resulted in Iran increasing its nuclear material production.
Yes or no, was not this enrichment activity prohibited under
the nuclear deal that President Trump has pulled our Nation out
of?
Ambassador Hale. I believe the plan's intent was to
prohibit that level of enrichment.
Senator Markey. Right. And is there any evidence that it
was being enriched? There is none. The agreement was being
abided by. So, it is hard to see how the Trump administration
can say it wants Iran to cease its nuclear activities, but then
forfeited the strict limits by leaving the deal. So, yes or no,
we do not currently have a Foreign Minister-level diplomatic
channel in Iran? Yes or no?
Ambassador Hale. It is true that the Foreign Ministers are
not speaking, yes.
Senator Markey. So, that must make pursuing the diplomacy
Trump claims to seek very difficult. I will also remind my
colleagues that we did previously have such a channel, as well
as robust working-level diplomatic contacts in the previous
Administration. So, yes or no, when we were talking with Iran
and we were in the nuclear deal, Iran did not attack or
commandeer ships or shoot down U.S. drones? Yes or no?
Ambassador Hale. It was not conducting those kinds of
attacks on our interests, but it was undermining our interests
through the use of violence in other ways----
Senator Markey. But, it was not----
Ambassador Hale. --throughout the Middle East.
Senator Markey. --commandeering ships or shooting down U.S.
drones, the casus belli that the President is now pointing at,
that the people in his Administration are talking about. And,
yes or no, is Iran doing these things now, commandeering ships
and shooting down U.S. drones?
Ambassador Hale. It has, yes.
Senator Markey. Yeah. Yes or no, since leaving the nuclear
deal, we have redeployed troops to Saudi Arabia for the first
time in over a decade, sent an additional aircraft carrier
strike group, and deployed B-52 bombers and a Patriot missile
defense battery, while drastically decreasing our regional
diplomatic presence, particularly in Iraq? Yes or no?
Ambassador Hale. I can certainly confirm that we are doing
those things, but I would like an opportunity to provide a
little more context----
Senator Markey. I only----
Ambassador Hale. --to what has happened----
Senator Markey. --get 5 minutes. I apologize to you. All
those things are true. So, to me, President Trump's Iran
policies are dangerously increasing tensions with Iran, and
letting them restart their nuclear program right now with no
enforceable limits on the Iranians, so this puts us on a road
to yet another Middle Eastern conflict.
So, that brings us to what possible legal justifications
the Trump administration might feel it has to strike Iran.
Ambassador Hale, during congressional testimony in April,
Secretary Pompeo said that, ``There is no doubt there is a
connection between the Islamic Republic of Iran and al-Qaeda,
period, full stop.'' What evidence is there to support the
claim that there is a link between Iran and al-Qaeda?
Ambassador Hale. There has been the provision of safe haven
by Iran to elements of al-Qaeda.
Senator Markey. So, is there plotting going on between
these two groups towards our American interests? Do you have
evidence of that?
Ambassador Hale. I think we would have to respond in a
classified setting to that question, Senator.
Senator Markey. Well, will you commit to briefing our
committee on exactly what Secretary Pompeo means, in a closed
setting?
Ambassador Hale. I certainly commit to providing you with
that information.
Senator Markey. Okay. We would be all ears to hear that
connection, because, despite these serious claims, there has
been no evidence, classified or otherwise, that has been
offered to me that provides any evidence of this link between
al-Qaeda and the Iranian government.
And, Mr. String, President Trump reportedly approved a
strike against Iran before calling it off. Under what specific
authority did he order this strike?
Mr. String. Thank you. Thank you, Senator, for the
question.
So, just to be clear, he did not order the strike. The
strike never----
Senator Markey. He ordered the strike before he withdrew
the order for the strike. Under what authority did he order the
strike before he withdrew? What was that authority?
Mr. String. Yeah, thank you, Senator.
So, your question gets at some of the most sensitive types
of decision-making----
Senator Markey. What was the authority that was used to
order a strike against Iran?
Mr. String. Senator, again, so your question gets to some
of the most sensitive decision-making----
Senator Markey. So, what was the authority that was used?
Mr. String. I cannot get into specific deliberative issues
surrounding that set of events.
Senator Markey. Well, that is why you are here to testify.
You are here to tell us what was the authority, because we want
to know. Was it the Iraq AUMF, was it the Afghanistan AUMF, or
was it just some inherent authority that the President believes
he has to just make a unilateral strike against another country
that could cause an apocalyptic event, potentially, in the
Middle East? What was the authority?
Mr. String. Yeah, Senator, I respect the question.
Unfortunately, I cannot get into the specifics of particular
deliberations that occurred at that time.
Senator Markey. Okay. Well, here is my conclusion, then,
for you. The Administration has no authority to strike Iran.
The Administration must consult and receive authorization if it
wants to do so. And the Administration does not have the right
to entangle the U.S. in yet another Middle East conflict
without a buy-in from Congress, the people's representative. We
are the ones who represent these young men and women who will
be sent into that conflict. And, without clear proof that the
President has authority that is presented to Congress, it would
be a big mistake.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Markey.
I actually can provide a little context for you on that,
since I was in the room when that decision was made. And
without going into anything classified or anything else, I can
tell you that, after there was an attack on U.S. assets, there
was an in-depth discussion about what defensive measures were
necessary for our assets in the region, which, in my judgment,
would have been under Article 2. Now, there were not lawyers
arguing whether it was one AUMF or another AUMF or Article 2,
but, rather, the practical situation. And it is the practical
situations that we are discussing here that make this thing so
dicey. We all have general ideas and general agreement as to
what should happen, but, when the pragmatics are right there,
it becomes more difficult. And the decision was made, in my
judgment, under Article 2. And I guess you could argue that
that was not appropriate. But, there was no advice being given
that Article 2 did not apply when we were talking about
defending U.S. persons and U.S. assets in the region. So, it is
a practical as well as a legal problem.
So, with that, we will turn to Senator Barrasso.
Senator Barrasso. Thank you, Mr. Chairman.
Senator Menendez. Mr. Chairman, if my colleague would yield
for just a moment.
Senator Barrasso. Sure.
Senator Menendez. Procedure-wise, since this next vote is
expiring now, is it the Chair's intention to continue through?
In which case, I would like to go vote, come back, because I
still have another round of questions when everybody else is--
--
The Chairman. Yeah, why do not you do that, Senator. We
will keep going, if that is okay with you.
Senator Menendez. Yep.
The Chairman. Yeah.
Senator Barrasso.
Senator Barrasso. Thank you very much, Mr. Chairman.
I appreciate the work you do. Thank you for being with us
today.
You know, since the collapse of the self-proclaimed ISIS
caliphate in Syria, I have seen reports of approximately 1,000
ISIS fighters, mostly Iraqis, who crossed over the border to go
back home to Iraq this year. Both the Obama and the Trump
administration have used the 2001 AUMF as justification for
engaging ISIS in both Iraq as well as in Syria. Does the
Administration still view the 2001 AUMF as an authorization to
militarily engage with ISIS?
Mr. String. Yes, Senator.
Senator Barrasso. And what are your views of the risks
associated if we reopened the 2001 AUMF? And what are some of
the operational consequences in this effort?
Mr. String. Thank you, Senator. A good question.
So, right now, we rely on the 2001 AUMF, not only for
operations in Syria and Iraq, as you mentioned, but also in
five other countries, which we have disclosed in multiple
reports to Congress. So, it would unsettle the legal foundation
for several of these types of military operations in various
theaters. We also rely on the 2001 AUMF for many of our
detention operations, so it would also potentially unsettle the
foundation for detention operations.
The Chairman. Senator, I am----
Senator Barrasso. Mr. Chairman----
The Chairman. Yeah, I am going to have to interrupt for a
minute. We are being told by the floor that they are going to
close the vote. And it is important that we go down and vote.
So, again, with my apologies to the witnesses and to everyone
else, we are going to have to take a break again. So, we will
break as briefly as we can, so, with that, the----
Senator Kaine. We have both voted----
Senator Merkley. Yes. Mr. Chairman, we have both voted.
Perhaps you would like to have Mr. Kaine chair while you vote.
[Laughter.]
Senator Kaine. I will not do anything weird.
[Laughter.]
The Chairman. The record will reflect that he will not do
anything weird.
And, with that, Senator Kaine, have at it.
[Laughter.]
Senator Kaine [presiding]. Thank you, Mr. Chair.
And thank you, to the witnesses, for this important
testimony.
So, just jumping in, I am correct, am I not, that neither
the 2001 nor 2002 authorizations even mention the word
``Iran''? Correct?
Mr. String. That is correct, Senator.
Senator Kaine. Okay. And you earlier testified, in
response, I believe, to a question from Senator Udall--he read
a portion of the 9/11 Commission Report, where the Commission
found that Iran did not have any connection to the attacks of
9/11. Is that correct?
Mr. String. That is correct.
Senator Kaine. The Administration has not, to date--and we
talked about that phrase a little bit earlier--but, the
Administration has not interpreted either the 2001 or 2002
authorization as an authorization for military action against
Iran. Correct?
Mr. String. That is correct, sir, with the one caveat about
self-defense that I mentioned in my opening statement.
Senator Kaine. And self-defense is an Article 2 issue. We
would all agree on that.
Mr. String. U.S. forces could engage in self-defensive
activities, both under the Constitution, pursuant to an Article
2 authority, or pursuant to an AUMF authority.
Senator Kaine. If one was granted. So, if there is an AUMF
that does not say anything about Iran, you cannot use that to
justify self-defense. You could use Article 2. Correct?
Mr. String. You are correct, Senator. Just to explain the
nuance there, when U.S. forces are currently pursuing missions
under the 2002 or 2001 AUMF, and in the pursuit of those
missions, the current missions--if they come under attack, they
have a right to defend themselves.
Senator Kaine. I hear you.
Senator Cardin indicated that he was here during the votes
in both 2001 and 2002, and it was not his intention, in voting
on both of those authorizations, or his understanding, that
those were to be authorizations for military action against
Iran. You may not have been here then, but you would not
challenge his statement about what congressional intent was at
the time, would you?
Mr. String. I would certainly take him at his word,
Senator.
Senator Kaine. So, to close out on this one, and then I
want to go to another topic, it would be fair to say, no
mention of Iran, the Administration has not determined '01 or
'02 to authorize military action against Iran, and the 9/11
Commission found that Iran was not connected to the 9/11
attack--it would be fair to say that neither the 2001 nor 2002
authorizations are a specific statutory authorization for
military action against Iran. Is that fair to say?
Mr. String. Senator, I think that is broadly consistent
with the assertions that we have made today. There has been no
determination, to date, that either AUMF applies to authorize
force against Iran.
Senator Kaine. Thank you for that.
I want to go to a line of questions that I think Senator
Young was asking you, Under Secretary Hale. And it is good to
see you again. With respect to Iraq, I think you were asked if
Iraq was an ally, and you described them, you know, maybe not
in the formal alliance sense, but they are certainly a partner.
We are in Iraq right now conducting a counter-ISIS operation,
at their invitation. They have asked us to come into Iraq to
help them with that. We are doing all kinds of things to
promote the stability of Iraq. We had a hearing last week with
State Department witnesses talking about the activities that we
are engaged in together with Iraq. And so, is it fair to say
that we would view them now as a partner, and an important
partner?
Ambassador Hale. I think that is exactly right, Senator.
Senator Kaine. So, we have two authorizations--a 1991
authorization, 2002 authorization--that authorize us to use
military action against the Government of Iraq. It is not
authorizations to promote good things in Iraq or protect Iraq.
Both of these authorizations, '91 and '02, are structured as
military action against Iraq.
In response to an earlier question, Mr. String, I think you
said that you did not know of any current operation or legal
authority or even an incarceration of somebody at Guantanamo or
something, that would be affected if the '91 and '02
authorizations were repealed. Do I understand that that was
your earlier testimony?
Mr. String. With a slight nuance, Senator. What I stated
is, I could not point to any particular operation that was
exclusively justified under the 2002 AUMF.
Senator Kaine. Can you----
Mr. String. However----
Senator Kaine. Can you--operation--can you point to any
incarceration of any individual that is based on the 2002
authorization, and that would not be covered by the 2001
authorization?
Mr. String. Senator, there has been some recent litigation
regarding some novel detainee issues in which we, as the
executive branch, have asserted, as an authority, three
different legal bases: Article 2 of the Constitution, the 2001
AUMF, as well as the 2002 AUMF. So, I can point to particular
cases and particular detention situations where we think we
need that extra authority.
Senator Kaine. Are you aware of any situation where you are
asserting only the 2002 authorization as basis for detention
without also citing Article 2 or 2001?
Mr. String. At present, I am not aware of that.
Senator Kaine. And the last question I will ask is this.
What does it say to a partner that we are working with to have
an open-ended legal authorization to take military action
against their nation? Is that the way we ought to treat a
partner?
Mr. String. That may be more of a policy question, in terms
of how a partner is reacting, but I will----
Senator Kaine. Well, it is a little bit of a diplomatic
question. Since we have a great diplomat here--you have served
all over the region. You know, military action is one of the
most serious things we do. Taking the position that we are
authorizing military action against your government, that is a
serious thing. We are not taking military action now against
the Iraqi government. There is no conceivable circumstance
where, we hope, we would need to. It seems to me to be odd that
we are talking about all the things we are doing together with
Iraq and describing them as a partner, where we have two
authorizations that are still on the books saying that we are
allowed to take military action against them. Do you see why
this troubles me?
Ambassador Hale. Senator, I certainly follow the logic that
you are pursuing. I would say, though, as a practical matter,
this is not an impediment or an issue between us and the Iraqi
government. This is not a focus of concern, to my knowledge, on
their part. We are focused together on the things that you
heard about in the other hearing, about how we can be good
partners together and we can support them in the incredible
effort to stabilize that country against both ISIS and the
Iranians.
Senator Kaine. And I would argue--and I may follow up with
this for the record--nor is it a practical value-add for us
when we are not taking military action against Iraq and they
are now a partner rather than an adversary, and we can cite no
specific instance of a circumstance where we need the 2002
authorization to take action.
With that, I will yield to my colleague from Oregon.
Senator Merkley. Thank you.
Mr. String, did Iran plan or authorize the 9/11 attack?
Mr. String. Did Iran plan or authorize? Not that I am aware
of, Senator.
Senator Merkley. Did they commit or aid that attack?
Mr. String. Not that I am aware of, Senator.
Senator Merkley. Did they harbor the folks who committed
that attack?
Mr. String. Not that I am aware of at the time, but I think
we want to get a----
Senator Merkley. Thank you.
Mr. String. --more complete answer----
Senator Merkley. Well, I think if you use your lawyerly
mind to look at it, it was in past tense, it was ``those who
harbored those,'' not who--before the attack.
So, we have five standards in the 2001 AUMF. Five
standards. You have just said none of them are met. And yet,
you persist in arguing an interpretation of an AUMF that
Congress did not intend and is not there in the language.
Now, we have a system in which some issues can be
adjudicated by the Supreme Court, but the Supreme Court defers
on these issues. So, the only way that the Congress has any
faith in what it is passing is that there is integrity
interpretation by the executive branch. You have just told me
that the five standards laid out are not met. And yet, you
argue for an expanded interpretation that is not in the
language. How can Congress play the role it is constitutionally
assigned if the Administration expands the meaning beyond what
is in the actual AUMF?
Mr. String. Senator, thank you. It is a good question.
So, we have largely continued the interpretations that were
set forth in the previous Administration.
Senator Merkley. No, I do understand that, and I would have
equal criticism of the prior Administration in that regard.
Mr. String. And----
Senator Merkley. But, you are there now. You have the
responsibility now to honor the integrity of what Congress
wrote and passed at the time in 2001. Do you not feel some
commitment to honor the integrity of that language?
Mr. String. Yes, Senator, we feel a great commitment to----
Senator Merkley. Then how can you continue to argue the
2001 can apply to Iran, when you have just told me that the
five standards in it have not been met?
Mr. String. Senator, we have not argued that. Actually, we
have argued the opposite, that, to date, there has been no----
Senator Merkley. You are keeping the door open. You repeat
it----
Mr. String. --that there has been no determination, to
date, that either the 2001 or the 2002 AUMF would authorize
force against----
Senator Merkley. If you were making a determination today,
could you see any basis, since you have just said the five
standards in there are not met? How could that change? You are
keeping the door open to that possibility by not sharing your
opinion. Maybe you would like to share your opinion.
Mr. String. Yes, Senator. So, as lawyers in the executive
branch, we opine on facts before us. At present, we cannot
predict future events, so all I can do is talk about what we
have done to date----
Senator Merkley. Okay, let us turn to Article 2 powers. You
have said that Article 2 empowers the Commander-in-Chief to act
on regional stability. Is that not a rather large loophole to
place under the Constitution? You know, Washington laid out, as
the most honored and respected military commander in our
history, how important this was that the executive not have the
power to put people into positions of war except direct defense
of an attack. So, Washington argued that. Jefferson, before he
was President, argued for this vision. And when he was
President, he said, ``I will have to go to Congress.'' He
honored that vision, as well. Now you are telling me that
Article 2--that is, in translation, the powers given to the
Chief Executive, the President of the United States--allows
going to war for some analysis of regional stability without a
direct attack on the United States?
Mr. String. So, Article 2 of the Constitution does not
provide the President with the ability to take the Nation to
war in a constitutional sense. That is an important limit that
has been recognized in Department of Justice opinions across
administrations. There are a series of factors which previous
opinions by the Department of Justice--again, across
administrations--have looked at. One of those has been regional
stability issues, attacks. Another one is an attack----
Senator Merkley. Again, I am trying to clarify for this
committee and for the public. You are saying that Article 2,
the war powers of a President as Commander-in-Chief, allow him
to go to war without congressional authorization, based on some
analysis of regional stability.
Mr. String. That is not quite correct, Senator. So, what I
said is, the limit on the constitutional power under Article 2
does not authorize a President to take the Nation to war in a
constitutional sense. In a constitutional sense, that is a
power reserved to Congress.
Senator Merkley. What does that mean, ``in a constitutional
sense?'' So, you can go to war in an unconstitutional sense?
Mr. String. Article 2 of the Constitution allows the
President to take certain types of military action to defend
important U.S. national interests. And that is an
interpretation that the previous Administration used in at
least two circumstances, the Administration before that, et
cetera.
Senator Merkley. So, how is Article 1 the commitment that,
in our Nation, decisions to use military force are vested--the
war powers are vested in Congress--how is that relevant if you
argue that the President can act without that authorization,
based on something as vague as regional stability?
Mr. String. Senator, we have great respect for the
constitutional prerogatives of Congress and the right to
declare war under Article 1 of the Constitution. Article 2 of
the Constitution has been long recognized by, again,
administrations of both parties to authorize the President to
take limited types of action to respond to----
Senator Merkley. Okay, let us explore the ``limited.'' Are
you saying that responding to regional stability as an argument
is only an argument for very limited military action?
Mr. String. It is always a facts-and-circumstances
analysis, and it is an analysis that is conducted very
carefully in the executive branch.
Senator Merkley. You are not willing to constrain it to
limited or proportional response in your interpretation?
Mr. String. That is an important limit, in general. Under
international law, it has to be necessary and proportionate.
That is a limitation, as well.
Senator Merkley. Under international law. But, we are
talking the Constitution right now, and the power that the
President sees within that framework.
Mr. String. Yes. And these limits that I have just
described are also adopted as part of U.S. law.
Senator Merkley. Since you have expounded here that none of
the five standards in the 2001 AUMF are met, why would you not
support eliminating that AUMF?
Mr. String. Senator, our position has been that the
executive branch has sufficient authorities to take actions to
defend the United States. We, of course, respect the----
Senator Merkley. If you have sufficient powers otherwise,
why would you not support eliminating the 2001 AUMF?
Mr. String. Senator, because we continue to rely upon the
2001 AUMF.
Senator Merkley. But, you have said that the five standards
are not met. So, why do you want to hold on to this?
Mr. String. Because we utilize this AUMF for operations in
seven different theaters.
Senator Merkley. Those theaters do not meet the test,
either--the five tests that are in it. And you previously cited
the 2001 AUMF with the phrase ``associated forces.'' Can you
point to me that phrase in the 2001 AUMF?
Mr. String. Senator, this is a longstanding interpretation
that the executive branch has----
Senator Merkley. So, it is not in the AUMF?
Mr. String. It is a longstanding interpretation----
Senator Merkley. Again, how do we have integrity for
congressional action if you rely on your own expanded
interpretation, whether or not it was done by a previous
administration?
Mr. String. Well, I think I can provide some assurance in
that respect, Senator, in that there is a very careful process
that we have continued from the previous Administration when we
would be reviewing any potential additions to the list of
entities that could fall under the 2001 AUMF.
Senator Merkley. This is my last question, Mr. Chairman.
You argued that the only replacement AUMF you would support
would be one that had no repeal before replacement, no
geographic limit, and no sunset. Unlimited in space, unlimited
in time, and, according to the set of interpretations you have
shared today, unlimited in power. And how is that not a
complete abrogation of the constitutional vision of the
warmaking authority of Congress?
Mr. String. Senator, again, we would respect the
prerogatives of this body in the Congress to determine what
those parameters would be. We are simply offering our best
advice to Congress about what some guideposts should be as this
body may consider----
Senator Merkley. You are asking for no termination, no
geographic boundary, you are not putting forward any provisions
for limited power. I would say that sounds like a complete
abrogation of the Article 1 warmaking power, completely
inconsistent with this Constitution. And in your responsibility
to have integrity to what Congress passes, I am very
disappointed to hear your failure to honor that integrity.
The Chairman [presiding]. Thank you, Senator Merkley.
Senator Menendez.
Senator Menendez. Thank you, Mr. Chairman. Let me first
thank you for extending courtesies on both sides of the aisle
in the time limitation on an issue that is of great importance
to members. So, I appreciate that.
Let me ask you, Secretary Hale. In April of this year,
Secretary Pompeo testified before this committee and said,
``There is no doubt there is a connection between the Islamic
Republic of Iran and al-Qaeda, period, full stop.'' Is that the
Administration's position, that Iran and al-Qaeda are
connected?
Ambassador Hale. I really cannot improve on what Secretary
Pompeo said. In an earlier----
Senator Menendez. Do not try. So, is that the position of
the Administration, that Iran and al-Qaeda are connected?
Ambassador Hale. He stated that, and that is the position--
--
Senator Menendez. So, to what extent? To what extent? Give
me some depth, then. To what----
Ambassador Hale. The----
Senator Menendez. --extent are they connected?
Ambassador Hale. The issue I am aware of is the continued
provision of safe haven to al-Qaeda by the Iranian regime. But,
that is what I am aware of----
Senator Menendez. So, Mr. String, based upon that alone,
has the Department, have you, as Legal Adviser, determined
whether this connection would be sufficient to use force under
the 2001 AUMF?
Mr. String. Senator, as I think the Secretary himself made
clear, he was not making a legal conclusion as to those links.
And, as we have discussed earlier, the Administration has not
interpreted either the 2001 or the 2002 AUMF as authorizing
force against Iran.
Senator Menendez. So, you have not come to any conclusion
as to whether that al-Qaeda connection invokes authorities
under the 2001 AUMF.
Mr. String. We have not made any determination, to date, on
that question.
Senator Menendez. Have you been considering that question?
Mr. String. Senator, we are constantly vigilant on these
issues, in responding and assessing threats. I would just have
to return to my previous statement that, to date, we have not
made that determination, but we continue to be vigilant.
Senator Menendez. Did the 2001 AUMF provide authorization
to respond to the IRGC's takeover of a British ship?
Mr. String. Senator, I would prefer not to get into
hypothetical----
Senator Menendez. Well, it is not a hypothetical. That is a
reality. The Iranians took over a British ship. Does the AUMF
give you the authorization to respond to it?
Mr. String. Again, we have not interpreted either the 2001
or 2002 AUMF to authorize the use of force against Iran.
Senator Menendez. What about a response to Iran exceeding
JCPOA enrichment limits?
Mr. String. Senator, I would have the same answer with
respect to that. The 2001 or 2002 AUMF have not been
interpreted, to date, to authorize force in the respect that
you just laid out.
Senator Menendez. That does not mean it could not be
interpreted as such.
Mr. String. Again, I would go back to the statement that I
have been repeating, that we have not interpreted it, to date,
based on the facts before us.
Senator Menendez. Well, since I very rarely get the legal
counselor before this committee, or the State Department, let
me turn to another subject that maybe you can be more
elucidating about. You are familiar with the recently concluded
U.S.-Mexico Joint Declaration, are you not?
Mr. String. Yes, I am, Senator. Of June 7th.
Senator Menendez. Good. As an expert on bilateral and
multilateral agreements, treaties, and other types of
international arrangements, you know the difference between a
binding and a nonbinding instrument, correct?
Mr. String. That is correct, Senator.
Senator Menendez. So, let me ask you a simple question,
based on your legal expertise. Just give me a yes-or-no answer.
Is the U.S.-Mexico Joint Declaration binding for purposes of
international law?
Mr. String. Senator, that is an important authoritative
agreement that the Governments of the United States and Mexico
entered into, and we are in the midst of implementing various--
--
Senator Menendez. I did not ask you----
Mr. String. --elements of that agreement.
Senator Menendez. --if that was an authoritative agreement.
I asked you if it was binding for purposes of international
law.
Mr. String. Senator, I would have to give the same answer.
We view it as an important authoritative agreement----
Senator Menendez. That is a non-answer. You know, I do not
practice these days, but I did at one time, and that is a non-
answer. It is a non-answer to my specific question. It is so
beyond my pale to understand why the Department is so reluctant
to answer a simple question. You signed, personally, the
supplementary agreement. Is that correct?
Mr. String. That is correct, Senator.
Senator Menendez. In that agreement, I see phrases like,
``The U.S. and Mexico will begin discussions to establish
definitive terms for a binding bilateral agreement.'' That sure
does not sound binding to me. So, can you tell me, why has the
Department been so reluctant to answer this basic question?
Mr. String. Senator, I believe we have provided answers to
questions that your staff have raised with respect to the
agreement. We continue to be engaged in important discussions
with the Mexican government and other governments in the region
about burden-sharing issues----
Senator Menendez. Your answers have been totally
nonresponsive. And it is the nonresponsiveness of these answers
that has led me to use the limited tools that the Minority has,
which I have been in consultation with the Chairman about, in
terms of just getting a simple answer. Is this a binding
international agreement, yes or no? It either is or it is not.
If it is, fine, then we know what goes forth from it, though we
do not what the agreement is, which is another problem. We do
not know what the agreement is.
Does the Department intend to submit any part of this
agreement to the Senate for advice and consent?
Mr. String. Senator, the parameters of an agreement are
still subject to discussion, both within the executive branch
and with our partners----
Senator Menendez. But, you----
Mr. String. --so I do not have an answer on that.
Senator Menendez. --you have an agreement. So, if you have
an agreement, then you know whether or not you would be
submitting it for advice and consent on it. Does the Department
view this as an executive agreement?
Mr. String. The agreement that we are discussing with
regional partners currently?
Senator Menendez. The U.S.-Mexico declaration.
Mr. String. The U.S.-Mexico declaration will not be
submitted as a treaty to the Senate for its----
Senator Menendez. It will not be submitted as a treaty. Do
you view it as an executive agreement?
Mr. String. Again, Senator, we view this as an important
authoritative agreement that has been agreed to----
Senator Menendez. Will you be reporting it under the CASE
Act?
Mr. String. Senator, we are still looking at all those
questions internally in the executive branch.
Senator Menendez. So, here is our problem. You are before
the oversight committee of your Department. You cannot give me
a straightforward yes or no: Is this a binding international
agreement? We cannot get a copy of the agreement. It is the
most coveted, you know, secret agreement that should be very
clear. We cannot get a sense of whether or not you consider
this an executive agreement, whether you are answered under the
CASE Act. Why? Why can you not give us simple answers to those
questions?
Mr. String. Senator, I am trying to be as forthright as I
can. We are still in discussions about the parameters of the
agreements that you have referenced. So----
Senator Menendez. So----
Mr. String. --several elements of this----
Senator Menendez. So, then you do not have an agreement. If
you are talking about the--either you know the agreement, the
foursquare elements of what the agreement is, or you do not. If
you do not, you do not have a final agreement, then.
Mr. String. Senator, we do have the June 7th declaration
that you mentioned. That is obviously complete, because it has
been posted publicly. So, I can talk about that, and I can talk
about the agreement that you also mentioned about the important
commitments to pursue additional discussions. That is what I
can talk about at this stage.
Senator Menendez. Secretary Hale, is there any reason why
you cannot provide the committee with a copy of this agreement?
Ambassador Hale. I will have to come back to you, sir, on
that. I have not been as informed as Marik has been on the
detailed legal aspects of this agreement. So, let me get back
to you and----
Senator Menendez. Well, it is not----
Ambassador Hale. --get back to your staff.
Senator Menendez. --it is not even the legal aspects of the
agreement. That is for the Legal Adviser. Just in general--you
are the Under Secretary for Political Affairs--why can this
committee, the committee of oversight, not get a simple hard
copy of the agreement?
Ambassador Hale. Let me take that back to the Department
and get back to you, sir.
Senator Menendez. Mr. Chairman, this is a challenge, that
those of us who are interested in what this agreement is and
believe we have the right to see the agreement and, therefore,
decide what is the appropriate policy, maybe in support of what
the President did, maybe in criticism of it; maybe, in part,
support; maybe, in part, criticism. But, you cannot have this
committee and its members seek to make judgments without having
basic information. This is basic information.
So, anyhow, thank you, Mr. Chairman, for indulging me.
The Chairman. Thank you, Senator Menendez.
A sincere thank you to our witnesses.
And, for the information of members, the record will remain
open until close of business on Friday. I would ask the
witnesses to respond as promptly as possible to the questions
for the record, and they will be made part of the record.
With that, this committee is adjourned.
[Whereupon, at 12:43 p.m., the hearing was adjourned.]
----------
Additional Material Submitted for the Record
Responses of Under Secretary of State David Hale to Questions
Submitted by Senator Robert Menendez
In questions for the record following your nomination hearing, I
asked you about ongoing reports of prohibited personnel practices,
including targeting and retaliation of career employees:
Question. Have you been made aware of any concerns regarding or
reports of prohibited personnel practices during your tenure at State?
Answer. As a senior Department official I have been made aware of
such allegations, and I take seriously any allegations of prohibited
personnel practices, including politically motivated retaliation
against career Department employees.
Question. If so, what actions have you taken to address them?
Answer. I have made clear in my words and deeds that such behavior
is absolutely unacceptable and I support the Department's actions to
ensure that any allegations are thoroughly investigated in order to
establish facts, determine accountability, and provide appropriate
redress.
Question. What steps have you taken, if any, to ensure that any
inappropriate targeting and retaliation of career employees is not
taking place?
Answer. As a leader and senior Department official, I have made
clear in my words and deeds that such behavior is absolutely
unacceptable. Moreover, I have emphasized that all personnel practices
must be carried out consistent with all laws and regulations.
______
Responses of Acting Legal Adviser Marik String to Questions
Submitted by Senator Robert Menendez
Question. Do you believe that the Administration has any legal
authorization to use military force against Iran beyond self-defense of
U.S. Armed Forces and personnel in the region? What authorization
provides such a justification? Will you commit to seeking Congressional
authorization for any other military action against Iran?
Answer. As Secretary Pompeo has noted, the Administration's goal is
to find a diplomatic solution to Iran's malign activities, not to
engage in a conflict with Iran.
The Administration is not seeking a new AUMF against Iran, or any
other nation or non-State actor at this time. In addition, the
Administration has not, to date, interpreted either the 2001 or 2002
AUMF as authorizing military force against Iran, except as may be
necessary to defend U.S. or partner forces engaged in counterterrorism
operations or operations to establish a stable, democratic Iraq. The
Administration is committed to consulting and keeping Congress informed
about these very important matters.
Question. Do you think it is necessary for Congress to pass a new
AUMF in order for this Administration to enter into military conflict
with Iran?
Answer. As Secretary Pompeo has noted, the Administration's goal is
to find a diplomatic solution to Iran's malign activities, not to
engage in a conflict with Iran.
The Administration is not seeking a new AUMF against Iran, or any
other nation or non-State actor at this time. In addition, the
Administration has not, to date, interpreted either the 2001 or 2002
AUMF as authorizing military force against Iran, except as may be
necessary to defend U.S. or partner forces engaged in counterterrorism
operations or operations to establish a stable, democratic Iraq.
Question. In June of this year, the president asserted that he
ordered--then called off--a strike on Iran in response to the shooting
down of an American aerial unmanned vehicle. He publicly stated that he
called off the attack because he didn't see it as ``proportionate.''
a. Under what authority did the legal advisor determine the
President was able to order this strike?
b. Was there concurrence between the State Department, the Defense
Department, and the DOJ Office of Legal Counsel?
c. Was there a written opinion?
d. Would the AUMF apply to the shooting down of an unmanned vehicle?
Answer. I am not able to provide further information on these
deliberative, pre-decisional issues. The Administration has not, to
date, interpreted either the 2001 or 2002 AUMF as authorizing military
force against Iran, except as may be necessary to defend U.S. or
partner forces engaged in counterterrorism operations or operations to
establish a stable, democratic Iraq.
Question. If you believe that the President has sufficient legal
authority to engage in combat with Iran, what are the limits of such
authority in terms of what types of military operations he can conduct?
For example, would he be able to order airstrikes against targets in or
around Tehran that were not involved in any direct attack on U.S.
persons, property, or military forces? On Iranian nuclear-related
sites?
Answer. The Administration has not, to date, interpreted either the
2001 or 2002 AUMF as authorizing military force against Iran, except as
may be necessary to defend U.S. or partner forces engaged in
counterterrorism operations or operations to establish a stable,
democratic Iraq.
Separately, Article II of the Constitution empowers the President,
as Commander-in-Chief, to order certain military action to protect the
Nation from an attack or threat of imminent attack and to protect
important national interests. The Office of Legal Counsel at the U.S.
Department of Justice (OLC) has issued a series of opinions about the
President's Article II authority over the years under both Democratic
and Republican Presidents. For example, in 2011, OLC explained that the
President's legal authority to direct military force in the absence of
specific prior congressional authorization turns on two questions: (1)
whether the U.S. military operations would serve sufficiently important
national interests; and (2) whether the military operations that the
President anticipated ordering would not be so sufficiently extensive
in ``nature, scope, and duration'' as to constitute a ``war'' within
the meaning of Article I, 8, cl. 11, which gives the Congress to
power ``[t]o declare War.''
Question. The 2001 AUMF has operated as the legal justification for
myriad conflicts over the past 17 years. Originally intended to target
those responsible for the September 11 terrorist attacks, it is now
used as a veritable blank check to prosecute combat operations around
the globe.
a. How does the 2001 AUMF apply to current combat operations in
Middle East?
b. How has the ``associated forces'' clause in the 2001 AUMF
affected our ability to properly target enemies and combat
terrorism?
c. What limitations to do you see on the Administration's assertion
that the 2001 AUMF authorizes the United States to act in self-
defense of partner forces? What if such ``self-defense''
actions risked hostilities between the United States and
another country (e.g. Turkey, Russia, or Syria)--would the
Administration view such ``self-defense'' as authorized by the
2001 AUMF?
Answer. The 2001 AUMF does not authorize the President to use force
against every group that commits terrorist acts. The mere fact that an
entity has been labeled a terrorist group, or that it has committed
terrorist acts, does not bring it within the scope of the 2001 AUMF. As
a general matter, a determination that a group is covered by the 2001
AUMF is made at the most senior levels of the U.S. Government only
after a careful evaluation of the information concerning each group's
organization, links with al-Qa'ida or the Taliban, and its
participation in al-Qa'ida or the Taliban's ongoing hostilities against
the United States or its coalition partners. These determinations are
necessarily fact-specific. To date, the executive branch has determined
that the following groups are covered by the 2001 AUMF: al-Qa'ida; the
Taliban; certain other terrorist or insurgent groups affiliated with
al-Qa'ida and the Taliban in Afghanistan; al-Qa'ida in the Arabian
Peninsula; al-Shabaab; al-Qa'ida in the Lands of the Islamic Maghreb;
al-Qa'ida in Syria; and ISIS. The Administration has not, to date,
interpreted either the 2001 or 2002 AUMF as authorizing military force
against Iran, except as may be necessary to defend U.S. or partner
forces engaged in counterterrorism operations or operations to
establish a stable, democratic Iraq.
The U.S. Department of Defense detailed the scope of its
authorizations and practices in defending foreign partner forces in
reports to the Armed Services Committees under Section 1031 of the
National Defense Authorization Act for Fiscal Year 2019. When U.S.
forces work with foreign partner forces or individuals incident to a
military operation, the use of necessary and appropriate force to
defend those partner forces is considered an inherent component of that
U.S. operation. The legal basis for the defense of partner forces is
thus the same as the legal authority under which the overall operation
was authorized. For example, the President's authority pursuant to the
2001 AUMF encompasses not only the use of offensive force against al-
Qa'ida, the Taliban, and associated forces, but also the use of
necessary and appropriate force to defend our own forces and foreign
partner forces conducting those operations.
Question. One of the key concerns that many in this body have noted
about the 2001 AUMF is its lack of a sunset provision that would
provide a definitive end date for combat operations.
a. How do you think the lack of sunset provision in the 2001 AUMF
has affected U.S. combat operations? How has it affected other
nation's perception of U.S. combat operations?
b. Do you believe such sunset provisions are beneficial to an AUMF?
Answer. The Administration has sufficient legal authority to
prosecute the campaign against al Qa'ida, the Taliban, and associated
forces, including against ISIS. The President does not need a new or
revised AUMF.
However, if Congress were to consider a new or revised AUMF, the
Administration has stated any such new or revised AUMF must have no
sunset provision, no geographic limitation, and no repeal before
replacement. A sunset provision would be inconsistent with the
President's direction that conditions on the battlefield, not
artificial or arbitrary timelines, will dictate when a military
campaign shifts or ends.
Many partner nations are contributing to the fight against the
organizations the AUMFs were passed to defeat. The D-ISIS Coalition
alone has 80 members, several of which have troops fighting alongside
ours. This underscores how seriously other countries also continue to
treat these threats, illustrates how much they value continued U.S.
leadership in this mission, and highlights the mutually recognized need
to continue to utilize all legal, available, and appropriate means to
defeat these groups.
As Undersecretary Hale recently noted during the hearing, ``as a
practical matter, [the continuing existence of authorizations to use
military force against Iraq] is not an impediment or an issue between
us and the Iraqi government. This is not a focus of concern, to my
knowledge, on their part. We are focused together on the things that
you heard about in the other hearing, about . . . how we can be good
partners together and we can support them in the incredible effort to
stabilize that country against both ISIS and the Iranians.''
Question. National Security Advisor John Bolton stated in June that
the U.S. is expanding offensive cyber operations in order to counter
digital economic espionage and other commercial issues. These comments
followed on the continued empowering of the executive branch, whether
via the Cyber Strategy or new National Security Presidential Memorandum
13, to prosecute offensive cyber operations in order to ``defend
forward.'' However, these operations put forth the question of what
actions require Congressional approval.
a. Please describe the types of cyber operations that the
Administration would anticipate reporting pursuant to section 4
of the War Powers Resolution.
b. Does the United States currently rely on either the 2001 or 2002
AUMFs as a statutory basis for cyber operations?
c. What types of operations you believe require congressional
authorization, and which ones do you believe fall below such a
threshold?
d. Do the operations that the U.S. is conducting to stop economic
espionage in the digital domain require an authorization, in
your estimation?
e. What kinds of limits should a cyber AUMF place on U.S. actions in
the digital domain? Should such an AUMF stretch beyond the
digital domain and constrain actions in the physical world?
Answer. The Administration has reported to Congress on its military
operations consistent with the War Powers Resolution. Officials within
the Administration communicate regularly with congressional leadership
and other Members of Congress with regard to military operations, and
we will continue to do so. The Administration expects that such
operations, like any other military operations, would be reviewed for
consistency with domestic and international law.
Question. The United States remains a key protector of human rights
and individual freedoms around the globe. Any AUMF must keep in mind
the role the U.S. plays in protecting these rights.
a. Do you believe that human rights should play a role in AUMFs, and
what role should they play in an AUMF that specifically targets
terrorists?
b. What mechanisms can Congress institute to help ensure that human
rights remain at the center of a new AUMF?
Answer. Promoting respect for human rights and international
humanitarian law remain key foreign policy objectives of the United
States. Congress has instituted this policy in a variety of ways,
including by enacting restrictions on assistance to foreign security
forces that are implicated credibly in gross violations of human
rights. The United States is committed to complying with our
international obligations in our military operations.
Question. In recent years, it seems that the executive branch has
more frequently resorted to the use of force absent an AUMF or
declaration of war. I think it is important for everyone to remember
that declaring war and authorizing the use of force is a Constitutional
role vested in Congress, and in this committee in particular. How, in
your view, has the power to prosecute a conflict changed over the last
several decades? Do you believe that there has been less transparency
by the executive branch regarding conflicts? What are the constraints
on Article II authority that you see?
Answer. The Administration has great respect for the critical role
played by Congress in authorizing the use of military force. The
Administration believes that the interests of the nation are best
served when the President and the Congress act together to support the
men and women of our military as they defend our national security
interests.
Article II of the Constitution empowers the President, as
Commander-in-Chief, to order certain military action to protect the
Nation from an attack or threat of imminent attack and to protect
important national interests. The Office of Legal Counsel at the U.S.
Department of Justice (OLC) has issued a series of opinions about the
President's Article II authority over the years under both Democratic
and Republican Presidents. For example, in 2011, OLC explained that the
President's legal authority to direct military force in the absence of
specific prior congressional authorization turns on two questions: (1)
whether the U.S. military operations would serve sufficiently important
national interests; and (2) whether the military operations that the
President anticipated ordering would not be so sufficiently extensive
in ``nature, scope, and duration'' as to constitute a ``war'' within
the meaning of Article I, 8, cl. 11, which gives the Congress the
power ``[t]o declare War.''
The previous Administration relied on this understanding of the
constitutional authority of the President to engage in military
operations against Libya and against Houthi radar installations in
Yemen in October 2016. OLC reiterated this view in its 2018 opinion
concerning the April 2018 use of force against chemical weapons targets
in Syria.
We agree it is important for the executive branch to be as
transparent as possible with the Congress and with the public about the
legal basis for U.S. military operations. The 2018 OLC opinion, which
the Administration published, provides substantial insight into the
Administration's view concerning the scope of the President's Article
II authority.
Question. What do you believe is the proper balance between
providing the President with the tools needed to respond to emergencies
with Congress's role of being the body to declare war?
Answer. The Administration has great respect for the critical role
played by Congress in authorizing the use of military force. Although
we recognize that there are times when the President may authorize the
use of force without prior congressional authorization, the
Administration believes that the interests of the nation are best
served when the President and the Congress act together to provide a
statutory authorization to support the men and women of our military as
they defend our national security interests.
Article II of the Constitution empowers the President, as
Commander-in-Chief, to order certain military action to protect the
Nation from an attack or threat of imminent attack and to protect
important national interests. The Office of Legal Counsel at the U.S.
Department of Justice (OLC) has issued a series of opinions about the
President's Article II authority over the years under both Democratic
and Republican Presidents. For example, in 2011, OLC explained that the
President's legal authority to direct military force in the absence of
specific prior congressional authorization turns on two questions: (1)
whether the U.S. military operations would serve sufficiently important
national interests; and (2) whether the military operations that the
President anticipated ordering would not be so sufficiently extensive
in ``nature, scope, and duration'' as to constitute a ``war'' within
the meaning of Article I, 8, cl. 11, which gives the Congress the
power ``[t]o declare War.''
It is important for the executive branch to be as transparent as
possible with the Congress and with the public about the legal basis
for U.S. military operations.
Question. When is Congressional engagement necessary in the use of
force?
Answer. The Office of Legal Counsel at the U.S. Department of
Justice (OLC) has issued a series of opinions about the President's
Article II authority over the years under both Democratic and
Republican Presidents. The most recent, issued in 2018, provides
substantial insight into the Administration's approach to such
questions. The Administration is committed to consulting with Congress
and keeping it informed with regard to issues relating to the use of
force.
Question. Section 36(c)(2) of the AECA specifically says ``if the
President states in his certification that an emergency exists . . .
thus waiving the requirements of subparagraphs (A) and (B) . . .''--but
the commercial sales were under subparagraph (C).
a. What is the Office of Legal Adviser's legal analysis of this
provision? How does it conclude that the Secretary had the
legal authority to use this provision with regard to the 13
direct commercial sales to Saudi Arabia and the UAE that he
included in his May 24, 2019 emergency determination?
b. What is the justification for invoking an emergency declaration,
when the plain language of the statute does not say that there
is such an authority for commercial sales?
c. If your argument is that Congress erred when it amended that
provision in 2002, please provide the evidentiary basis for
that contention, including how you determined Congressional
intent by citing the Congressional reports or statements that
buttress your position.
d. If your argument is that Congress erred when it amended that
provision in 2002, is there not a legal doctrine of
interpretation of law that states, basically, that a provision
of law that has remained unchallenged for years or has not been
the subject of attempts to correct, then that provision of law
should be followed according to the plain-letter meaning? If
so, why did the Office of Legal Adviser not use this doctrine
of interpretation? Does the Office of Legal Adviser apply this
doctrine of legal interpretation in other situations?
Answer. The Office of the Legal Adviser developed the legal advice
in connection with the matter in question in advance of my designation
as Acting Legal Adviser. The Office of the Legal Adviser assessed that
the Secretary's certification met the requirements of section 36(c)(2)
of the Arms Export Control Act for the sales at issue here in light of
the opening clause of section 36(c)(2).
Question. Did you, or did anyone in the office of the Legal
Adviser, produce a written legal analysis, determination, or
recommendation that the Secretary of State had the authority to invoke
an emergency certification? If so, will the State Department provide a
copy of that written or any related legal analysis, determination and/
or recommendation to the Committee? If not, what legal privilege is
State claiming to exercise that prevents it, or enables it, from
providing such written legal analysis, determination and/or
recommendation to the Committee--the Committee of oversight for the
Department and for these issues?
Answer. I am not in a position to describe deliberative, pre-
decisional communications that may be subject to executive branch
confidentiality interests. However, the Office of the Legal Adviser
routinely clears packages involving congressional notifications, and
did so in this case.
Question. Mr. String, is the U.S.-Mexico Joint Declaration binding
for purposes of international law?
a. As you know, I have asked variations on this question numerous
times. Why has the Department been so reluctant to answer my
basic questions about this?
b. As a legal expert on international instruments, how would you
characterize this agreement?
Answer. I can confirm that the United States regards the June 7
Joint Declaration and the Supplementary Agreement with Mexico, which we
have previously provided to the Committee, collectively to constitute a
binding agreement under international law. We have transmitted these
instruments to Congress, in accordance with the Case Act.
Question. At the hearing, you stated that the U.S.-Mexico
Declaration was ``an important authoritative agreement that's been
agreed to.'' What do you mean by an ``important authoritative
agreement''?
a. Does an ``authoritative agreement'' impose any obligations on
either country? If so, what obligations?
b. Is such an agreement binding for purposes of international law?
Answer. I can confirm that the United States regards the June 7
Joint Declaration and the Supplementary Agreement with Mexico, which we
have previously provided to the Committee, collectively to constitute a
binding agreement under international law. We have transmitted these
instruments to Congress, in accordance with the Case Act.
Question. What is your understanding of how the President views the
U.S.-Mexico Joint Declaration, in terms of whether it imposes
obligations on Mexico or the United States? Have you or has the
Department briefed the President on the Joint Declaration?
Answer. I can confirm that the United States regards the June 7
Joint Declaration and the Supplementary Agreement with Mexico, which we
have previously provided to the Committee, collectively to constitute a
binding agreement under international law. We have transmitted these
instruments to Congress, in accordance with the Case Act.
Question. Your answers at the hearing seemed to indicate that there
are ongoing discussions with Mexico about other or related agreements.
Can you clarify? What are the status of those? Are they intended to
impose binding obligations for purposes of international law on each
country?
Answer. Under the Supplementary Agreement, the United States and
Mexico committed to begin discussions to establish definitive terms for
a binding bilateral agreement to further address burden-sharing and the
assignment of responsibility for processing refugee status claims of
migrants. These discussions are ongoing.
Question. You stated that the executive branch was still
considering whether the U.S.-Mexico Joint Declaration would be reported
under the Case Act. Please provide an update of those discussions and
the factors relevant to whether the Administration will do so.
Answer. I can confirm that the United States regards the June 7
Joint Declaration and the Supplementary Agreement with Mexico, which we
have previously provided to the Committee, collectively to constitute a
binding agreement under international law. We have transmitted these
instruments to Congress, in accordance with the Case Act.
Question. Beyond the Joint Declaration--which appears to be just a
statement by two parties--and the supplementary agreement, which on its
face doesn't create any binding obligations, has the U.S. and Mexico
entered into any other commitments or agreements related to migration?
Any others that were supposedly to resolve the tariff threats? How
would you characterize those agreements and when will this Committee
receive copies?
Answer. As referenced in the Joint Declaration, there are a number
of related arrangements, including the Migrant Protection Protocols and
the Comprehensive Development Plan launched by the Government of Mexico
with the Governments of El Salvador, Guatemala, and Honduras, which all
aim to address the shared challenge of illegal migration in the region.
Of note, the Comprehensive Development Plan launched by the Government
of Mexico with the three NT Governments does not incorporate, nor does
it involve, U.S. initiatives with the Governments of El Salvador,
Guatemala, and Honduras.
Question. The U.S. also reportedly recently entered into an
agreement with Guatemala on migration issues. What was agreed to? Is
there a written document? When will you provide any such documents to
the Committee?
Answer. On July 26, the United States signed a cooperative
agreement with Guatemala to reduce the flow of irregular migration. The
agreement has not entered into force. It will enter into force upon an
exchange of notes between the United States and Guatemala indicating
that each party has complied with the necessary domestic legal
procedures for the Agreement to enter into force. A copy of the
agreement has been submitted to Congress in accordance with the Case-
Zablocki Act.
Question. Has the Department conducted its own assessment of
whether Guatemala can serve as a safe third country under U.S. law?
What was the result of that assessment?
Answer. 8 U.S.C. 1158(a)(2)(A) establishes a ``safe third country''
exception to the right of an alien to apply for asylum set forth in 8
U.S.C. 1158(a)(1). The statute does not assign responsibility to the
Department of State for determining whether an alien can be removed to
a particular country as a safe third country. Consistent with 8 U.S.C.
1158(a)(2)(A), the Attorney General and the Secretary of Homeland
Security would determine that the alien may be removed, pursuant to a
bilateral or multilateral agreement, to a country (other than the
country of the alien's nationality or, in the case of an alien having
no nationality, the country of the alien's last habitual residence) in
which the alien's life or freedom would not be threatened on account of
race, religion, nationality, membership in a particular social group,
or political opinion, and where the alien would have access to a full
and fair procedure for determining a claim to asylum or equivalent
temporary protection, unless the Attorney General or the Secretary of
Homeland Security finds that it is in the public interest for the alien
to receive asylum in the United States.
The Department has identified that these provisions would govern
the implementation in U.S. law of the agreement signed with Guatemala
on July 26, 2019, upon the future entry into force of that agreement
and that these provisions would need to be satisfied prior to the
commencement of implementation of the agreement.
Question. Has the Department provided a recommendation to the White
House as to whether Guatemala can serve as a safe third country under
U.S. law? What was that recommendation?
Answer. The Administration is not able to comment on matters
relating to the executive branch's deliberative process.
Question. In the current or previous administrations, has the
Office of the Legal Adviser analyzed the legality under international
law of U.S. support for Saudi Arabia's prosecution of the conflict in
Yemen (to include arms sales, logistical and intelligence support)? If
yes, please indicate whether any such analysis resulted in the
conclusion that U.S. officials or personnel participating in such
activities would be exposed to charges of war crimes? Please provide
any such analyses in unclassified form, to the extent possible, or in a
classified format.
Answer. The U.S. Government takes all credible reports of civilian
casualties in Yemen seriously and is proactively engaging with the
Saudi-led Coalition to reduce the likelihood of harm to civilians and
civilian infrastructure resulting from coalition operations. Through
diplomatic and military-to-military engagements, we regularly emphasize
to Saudi Arabia at the highest levels the strategic importance and
legal obligation to comply with the law of armed conflict, including
the obligation to take all feasible precautions to reduce the risk of
harm to civilians.
Question. As you know, the Global Magnitsky Human Rights
Accountability Act requires the President, upon receipt of a request
from the Chairman and Ranking Member of the Senate Committee on Foreign
Relations, to determine whether a foreign person is responsible for an
extrajudicial killing, torture, or other gross violation of
internationally recognized human rights against an individual
exercising freedom of expression, and report to the Committee within
120 days with a determination and a decision on the imposition of
sanctions on that foreign person or persons. Last year, Senator
Menendez, as the Ranking Member of the Senate Foreign Relations
Committee, along with then Chairman Bob Corker made such a request with
respect to Saudis involved in the Khashoggi murder, including
specifically Crown Prince Mohammed bin Salman. Yet the Administration
has not made such a determination.
a. Why has the Administration not made the determination as required
by statute?
b. Did the Department make a legal assessment regarding its
obligation to submit a report to the Chairman and Ranking
Member of the Senate Foreign Relations Committee pursuant to
section 1263(d) of the Global Magnitsky Act? If so, what did
that assessment conclude?
c. Is the Department engaged in its own effort or supporting the
efforts of other U.S. government agencies to uncover all of the
perpetrators of Khashoggi's murder, including those who
ordered, directed, or otherwise controlled the murder? If so,
what is the status of that investigation and who is leading it?
If not, why not?
Answer. As Secretary Pompeo has said, this was a terrible crime and
one that requires the Saudi Government to hold every individual
involved accountable. The United States was the first country in the
world to take significant action to promote accountability in this
case; under the Global Magnitsky sanctions program, the Administration
aggressively pursued individuals in connection with the murder of Jamal
Khashoggi, and on November 18, 2018, the Department of Treasury
designated 17 individuals for having a role in the killing of Jamal
Khashoggi. In addition to Global Magnitsky sanctions, on April 8, 2019,
the Secretary publicly designated 16 Saudi officials under Section
7031(c) of the Department's Appropriations Act. This designation was
based on credible information that these individuals were involved in
gross violations of human rights regarding the killing of Mr.
Khashoggi.
The Department shares your concerns that Saudi Arabia has not yet
provided a credible and transparent accounting of Mr. Khashoggi's
death, and this is something the Department regularly raises with Saudi
counterparts. We are neither reducing our attention on Mr. Khashoggi's
murder, nor ruling out appropriate steps to promote accountability for
anyone who was involved in the murder, including at the highest levels
of the Saudi government.
______
Responses of Under Secretary of State David Hale and Acting Legal
Adviser Marik String to Questions Submitted by Senator Tim Kaine
Question. Is the Administration relying upon the 2002 AUMF as the
sole legal authority to hold any detainees?
Answer. No, the Administration is not currently relying on the 2002
AUMF as the sole legal authority to hold any detainees. However, the
2002 AUMF remains an important source of additional authority for
military operations against ISIS in Iraq and to defend the national
security of the United States against threats emanating from Iraq. The
Department of Justice cited the 2002 AUMF among the sources of legal
authority for the detention of an individual in Iraq (Doe v. Mattis,
Civil Action No. 1:17-cv-2069 (TSC)).
Question. Is the Administration relying upon the 2002 AUMF as the
sole legal authority for any current U.S. military operations?
Answer. No, the Administration is not currently relying on the 2002
AUMF as the sole legal authority for any current U.S. military
operations. However, the 2002 AUMF remains an important source of
additional authority for military operations against ISIS in Iraq and
to defend the national security of the United States against threats
emanating from Iraq.
Question. Please describe what ongoing U.S. military operations
would be harmed if the 2002 AUMF was repealed.
Answer. The 2002 AUMF remains an important source of additional
authority for military operations against ISIS in Iraq and Syria and to
defend the national security of the United States against threats
emanating from Iraq. As part of a comprehensive strategy to defeat
ISIS, U.S. Armed Forces are conducting a systematic campaign of
airstrikes and other vital operations against ISIS forces in Iraq. U.S.
Armed Forces are also advising and coordinating with Iraqi forces and
providing training, equipment, communications support, intelligence
support, and other support to select elements of the Iraqi security
forces, including Iraqi Kurdish Peshmerga forces.
Question. Does the Administration oppose the repeal of the 1991
AUMF for the Gulf War? What impact would this repeal have on any
current policies or operations?
Answer. The Administration is not requesting repeal or revision of
any existing AUMFs. The Administration has not been presented with, or
developed a definitive Administration position regarding, any proposal
to repeal the 1991 AUMF that does not also include a repeal of the 2001
or 2002 AUMF.
Question. Has the State Department been informed that any of the
additional U.S. troops the President is sending to the Middle East will
be deployed to Iraq?
Answer. No, the Department has not been informed that additional
U.S. military personnel will be deployed to Iraq. We would refer you to
the Department of Defense for information on troop deployments.
Question. Has the State Department been informed that part of the
U.S. military mission in Iraq is to ``watch Iran?''
Answer. There has been no change in U.S. policy toward either Iran
or Iraq. We are working to support Iraq as it fights ISIS remnants,
deepens its relations with its Arab neighbors, and works toward energy
independence. Iran seeks to keep Iraq weak through the destabilizing
behavior of undisciplined militias, which contributes to radicalization
in Sunni communities, and dependent on Iranian electricity and
commercial goods. In great contrast, the United States supports a
sovereign, prosperous, unified, and democratic Iraq with a viable Iraqi
Kurdistan Region as an integral component.
Question. What impact would basing U.S. forces in Iraq to focus on
a counter-Iran mission have on our bilateral relationship?
Answer. State Department policy is to support a strong,
independent, and sovereign Iraq. Our bilateral relationship with Iraq
is paramount to all we hope to achieve in the Middle East. The United
States coordinates all of its activities with Prime Minister Adel Abd
al-Mahdi and his government, ensuring that any new initiative bolsters
and does not harm our partnership with Iraq.
Question. Does the State Department believe that Iraq has consented
to the conduct of counter-Iran activities by U.S. military personnel on
its territory? Does the State Department believe that U.S. personnel
can pursue those activities in Iraq without the Government of Iraq's
consent under international and U.S. domestic law?
Answer. As part of a comprehensive strategy to defeat ISIS, U.S.
Armed Forces are conducting a systematic campaign of airstrikes and
other vital operations against ISIS forces in Iraq. U.S. Armed Forces
are also advising and coordinating with Iraqi forces and providing
training, equipment, communications support, intelligence support, and
other support to select elements of the Iraqi security forces,
including Iraqi Kurdish Peshmerga forces. Actions in Iraq are being
undertaken in coordination with the Government of Iraq, and in
conjunction with coalition partners. As a matter of domestic law, the
2001 AUMF and the 2002 AUMF authorize the U.S. use of force against
ISIS in Iraq. As a matter of international law, the United States is
using force against ISIS in Iraq at the request and with the consent of
the Government of Iraq, which has sought U.S. and coalition support in
its defense of the country against ISIS, and in furtherance of U.S.
national self-defense.
Question. Does the Department believe that the fact that a majority
of both chambers of the current Congress oppose the use of military
force against Iran--as reflected in the recent 50-40 vote in the Senate
in support of S. Amdt. 883 to S. 1790 and the recent 251-170 vote in
support of H. Amdt. 554 to H.R. 2500, both of which prohibited the use
of funds for using military force against Iran absent congressional
authorization, except in certain limited cases of self-defense--
demonstrates Congressional intent that should be considered when
evaluating the scope of activities that could be initiated pursuant to
any existing statutes, including the 1991, 2001 or 2002 AUMFs?
Answer. The Administration has not, to date, interpreted either
AUMF as authorizing military force against Iran, except as may be
necessary to defend U.S. or partner forces engaged in counterterrorism
operations or operations to establish a stable, democratic Iraq. The
Administration appreciates the views expressed by various Members of
Congress, including in recent debates.
Question. Does the Department believe that the following statement,
which was included in the conference report for the John S. McCain
National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115-
232), demonstrates Congressional intent that should be considered when
evaluating the scope of activities that could be initiated pursuant to
statutes that pre-date the conference report, including the 1991, 2001
and 2002 AUMFs? ``The conferees note that nothing in this Act may be
construed to authorize the use of the Armed Forces of the United State
against Iran. At the time of the signing of this report, the conferees
are not aware of any information that would justify the use of military
force against Iran under any other statutory authority.''
Answer. The Administration has not, to date, interpreted either
AUMF as authorizing military force against Iran, except as may be
necessary to defend U.S. or partner forces engaged in counterterrorism
operations or operations to establish a stable, democratic Iraq. The
Administration understands that the John S. McCain National Defense
Authorization Act for Fiscal Year 2019 does not include an
authorization to use military force against Iran. The Administration
appreciates the views expressed in the reports accompanying that Act.
Question. Will the Department commit to factoring this
Congressional intent into its current and future evaluations of the
1991, 2001 and 2002 statutes?
Answer. The Administration has not, to date, interpreted either
AUMF as authorizing military force against Iran, except as may be
necessary to defend U.S. or partner forces engaged in counterterrorism
operations or operations to establish a stable, democratic Iraq.
Consideration of legislative history is appropriate when interpreting
statutes.
Question. Does the Department believe that the executive branch is
required to comply with its international legal obligations relating to
the conduct of international and non-international armed conflicts--
including those relating to jus ad bellum and jus in bello--as a matter
of U.S. domestic law?
Answer. The United States has the utmost respect for its
international obligations, including its obligations relating to the
conduct of international and non-international armed conflicts,
including those under the jus ad bellum and jus in hello, and carries
them out under applicable statutory and constitutional authorities.
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Responses of Under Secretary of State David Hale to Questions
Submitted by Senator Edward J. Markey
Question. Is Iran currently providing safe haven to al-Qa'ida? Has
Iran provided safe haven to al-Qa'ida in the past?
Answer. Given the focus of these questions and the associated
classification concerns they pose, I would refer you to the
intelligence community who may be able to provide a classified briefing
on this matter.
Question. Is Iran currently harboring al-Qa'ida? Has Iran harbored
al-Qa'ida in the past?
Answer. Given the focus of this question and the associated
classification concerns it poses, I would refer you to the intelligence
community who may be able to provide a classified briefing on this
matter.
Question. Are al-Qa'ida operatives currently planning attacks
against the United States from Iranian territory? Have they done so
from Iranian territory in the past? Please elaborate on any affirmative
answer.
Answer. Despite leadership losses since 9/11, al-Qa'ida remains an
enduring threat to the United States, its interests, and its allies
across the globe. It has capitalized on the focus in recent years on
the ISIS threat to reconstitute its capabilities and reach. For the
details of al-Qa'ida activity, we defer to the intelligence community,
which may be able to provide a classified briefing on this matter.
Question. Do any of the answers to the previous questions change if
``al-Qai'da'' is broadened to encompass the list of groups currently
within the scope of the 2001 AUMF?
Answer. Given the focus of these questions and the associated
classification concerns they pose, I would refer you to the
intelligence community who may be able to provide a classified briefing
on this matter.
Question. Your testimony notes that Iran's military budget reached
``nearly $14 billion'' in 2017. Using the same data source, what was
Saudi Arabia's military budget in 2017? Please do not include the
military budgets of Saudi Arabia's GCC partners.
Answer. The Saudi Government's 2017 end-of-year budget report
stated that the Kingdom of Saudi Arabia spent 228 billion Saudi Arabia
Riyals (roughly $60.8 billion) on its military that calendar year.
Question. Your testimony references Iran's ``longstanding practice
of nuclear extortion.'' Has there been variation in the extent of
``nuclear extortion'' Iran has practiced over the last decade? If yes,
what best explains the variation?
Answer. Iran's recent expansion of uranium enrichment activities,
including expanding its stockpile of low enriched uranium above 300
kilograms and enriching uranium at levels above 3.67 percent, is deeply
concerning. There is no credible reason for Iran to expand its nuclear
program at this time and in this way, other than as a transparent
attempt to extort the international community. Iran's past pursuit of
nuclear weapons heightens the seriousness with which the Administration
views these recent developments and provides the historical context in
which we assess Iran's current actions and announcements. The
Administration remains fully committed to preventing Iran from
obtaining a nuclear weapon.
Question. Is reduction in Iran's revenue a means to achieving U.S.
strategic goals like preventing ``regional destabilization,'' or is
revenue reduction the goal itself?
Answer. The objective of the Administration's maximum pressure
campaign is to deprive the Iranian regime of the revenue it needs to
fuel its malign behavior and to persuade it to negotiate a
comprehensive deal. The Administration has implemented unprecedented
sanctions on the Iranian regime, which are essential to convince Iran
that it has no better alternative than to come to the negotiating
table. Starving the regime of this funding means it has less money to
spend on terror, missiles, and proxies like Hizballah, and the pressure
campaign is yielding results. In March, Hizballah's leader, Hassan
Nasrallah, publicly appealed for donations for the first time ever, and
Hizballah has been forced to undertake unprecedented austerity
measures. Ultimately, the Administration's objective is a comprehensive
deal with Iran that permanently and verifiably prevents all paths to a
nuclear weapon and addresses the full range of the Iranian regime's
destructive behavior, including its support for terrorism and armed
groups in the region, its development and proliferation of ballistic
missiles, and its arbitrary detention of U.S. citizens.
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Responses of Acting Legal Adviser Marik String to Questions
Submitted by Senator Edward J. Markey
Question. I, myself, along with many of my colleagues on this
committee were dismayed by the Administration's emergency declaration
allowing the White House to bypass Congress in authorizing arms sales
to the Gulf in May:
In your role as then-Deputy Assistant Secretary for Political and
Military Affairs, did you play a role in or participate in discussions
about the emergency declaration? If yes, how long did the Department
consider making an emergency declaration under the Arms Export Control
Act?
Answer. The Department is not in a position to describe
deliberative, pre-decisional communications that may be subject to
executive branch confidentiality interests. However, in his previous
position in the Bureau of Political and Military Affairs, Mr. String
did participate in discussions regarding the emergency certification.
Question. I, myself, along with many of my colleagues on this
committee were dismayed by the Administration's emergency declaration
allowing the White House to bypass Congress in authorizing arms sales
to the Gulf in May:
Did you play a role in or participate in drafting the justification
memo or the emergency declaration?
Answer. The Department is not in a position to describe
deliberative, pre-decisional communications that may be subject to
executive branch confidentiality interests. However, the Bureau of
Political Military Affairs prepares all packages related to sales and
exports, and did so in this case. In his previous position in the
Bureau of Political Military Affairs, Mr. String would have reviewed
the package before it was sent to the Secretary.
Question. I, myself, along with many of my colleagues on this
committee were dismayed by the Administration's emergency declaration
allowing the White House to bypass Congress in authorizing arms sales
to the Gulf in May:
Who was the final approver of the justification memo?
Answer. The Secretary of State approved the emergency certification
and related memorandum of justification.
Question. I, myself, along with many of my colleagues on this
committee were dismayed by the Administration's emergency declaration
allowing the White House to bypass Congress in authorizing arms sales
to the Gulf in May:
Did defense companies involved in the sale, such as Raytheon,
contact the department in any way about the pending sales?
Answer. The Bureau of Political Military Affairs, at numerous
levels, maintains an ongoing dialogue with the U.S. defense industry
regarding export licenses, Foreign Military Sales (FMS) cases,
cooperative projects, and any number of other aspects relating to
defense trade matters. As such, Raytheon and others in the defense
industry routinely contact the Bureau about FMS and direct commercial
sales cases pending with the U.S. Government.
Question. I, myself, along with many of my colleagues on this
committee were dismayed by the Administration's emergency declaration
allowing the White House to bypass Congress in authorizing arms sales
to the Gulf in May:
Will you provide a copy of the Office of the Legal Adviser's memo
justifying the emergency sale to this committee?
Answer. The Office of the Legal Adviser (L) reviewed and cleared
the action memorandum to the Secretary to approve the emergency
certification and related memorandum of justification, consistent with
regular practice. To support the Department's response to specific
questions raised by the committee, L also provided legal advice on
other issues. Committee staff was briefed on the Department's responses
to the questions.
Question. I, myself, along with many of my colleagues on this
committee were dismayed by the Administration's emergency declaration
allowing the White House to bypass Congress in authorizing arms sales
to the Gulf in May:
Who would know whether there was any connection between your
promotion to the post of Acting Legal Adviser and the emergency
declaration, which was sent to Congress the day of your promotion? If
you are aware of any connection, please explain.
Answer. Mr. String's designation as Acting Legal Adviser was set in
motion more than a month before the Secretary's emergency certification
when the then-Legal Adviser announced her departure on April 22. The
designation had no connection whatsoever to the Secretary's decision to
exercise the emergency authority, and the Office of the Legal Adviser
provided legal advice in connection with this matter in advance of his
designation.