[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
       
       
       
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]       




                   Available via the World Wide Web:
                         http://www.govinfo.gov
                         
                         
                         
              U.S. GOVERNMENT PUBLISHING OFFICE 
42-755 PDF             WASHINGTON : 2021                          
                         


                 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

                              ----------                              
                                                                   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.
                                 ______
                                 

     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.
                                 ______
                                 

      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.