[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
ARTICLE I: REFORMING THE WAR POWERS
RESOLUTION FOR THE 21ST CENTURY
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HEARING
BEFORE THE
COMMITTEE ON RULES
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
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TUESDAY, MARCH 23, 2021
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[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via http://govinfo.gov
Printed for the use of the Committee on Rules
__________
U.S. GOVERNMENT PUBLISHING OFFICE
44-426 WASHINGTON : 2022
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COMMITTEE ON RULES
JAMES P. McGOVERN, Massachusetts, Chairman
ALCEE L. HASTINGS, Florida, TOM COLE, Oklahoma,
Vice Chair Ranking Republican
NORMA J. TORRES, California MICHAEL C. BURGESS, Texas
ED PERLMUTTER, Colorado GUY RESCHENTHALER, Pennsylvania
JAMIE RASKIN, Maryland MICHELLE FISCHBACH, Minnesota
MARY GAY SCANLON, Pennsylvania
JOSEPH D. MORELLE, New York
MARK DeSAULNIER, California
DEBORAH K. ROSS, North Carolina
Don Sisson, Staff Director
Kelly Dixon Chambers, Minority Staff Director
------
Subcommittee on Legislative and Budget Process
ALCEE L. HASTINGS, Florida, Chairman
JOSEPH D. MORELLE, New York, MICHAEL C. BURGESS, Texas,
Vice Chair Ranking Republican
MARY GAY SCANLON, Pennsylvania TOM COLE, Oklahoma
DEBORAH K. ROSS, North Carolina
JAMES P. McGOVERN, Massachusetts
------
Subcommittee on Rules and Organization of the House
NORMA J. TORRES, California, Chair
ED PERLMUTTER, Colorado, GUY RESCHENTHALER, Pennsylvania,
Vice Chair Ranking Republican
MARY GAY SCANLON, Pennsylvania TOM COLE, Oklahoma
JOSEPH D. MORELLE, New York
JAMES P. McGOVERN, Massachusetts
------
Subcommittee on Expedited Procedures
JAMIE RASKIN, Maryland, Chair
DEBORAH K. ROSS, North Carolina, MICHELLE FISCHBACH, Minnesota,
Vice Chair Ranking Republican
NORMA J. TORRES, California TOM COLE, Oklahoma
MARK DeSAULNIER, California
JAMES P. McGOVERN, Massachusetts
C O N T E N T S
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March 23, 2021
Opening Statements:
Page
Hon. James P. McGovern, a Representative in Congress from the
State of Massachusetts and Chair of the Committee on Rules. 1
Hon. Tom Cole, a Representative in Congress from the State of
Oklahoma and Ranking Member of the Committee on Rules...... 2
Witness Testimony:
Prof. Rebecca Ingber, Professor of Law, Cardozo School of
Law; Senior Fellow, Reiss Center on Law and Security at NYU
School of Law.............................................. 5
Prepared Statement......................................... 8
Mr. John B. Bellinger III, Partner, Arnold & Porter; former
Legal Adviser to the Department of State and the National
Security Council........................................... 18
Prepared Statement......................................... 21
Dr. Tess Bridgeman, Co-Editor-in-Chief, Just Security; Senior
Fellow and Visiting Scholar, NYU Law's Reiss Center on Law
and Security............................................... 29
Prepared Statement......................................... 31
Additional Material Submitted for the Record:
Letter from 20 nonprofit organizations dated March 22, 2021.. 61
Statement from Congresswoman Barbara Lee dated March 23, 2021 72
Document entitled ``Reconsidering the Letter of Marque:
Utilizing Private Security Providers Against Piracy'' by
Theodore T. Richard........................................ 80
Article by David Isenberg, CATO Institute, entitled ``There
Is More Than One Way to Use a Maritime PSC'' dated May 30,
2010....................................................... 134
Statement from Congressman Peter A. DeFazio dated March 23,
2021....................................................... 140
Statement from Congressman Brad Sherman dated March 22, 2021. 153
Curriculum Vitae and Truth in Testimony Forms for Witnesses
Testifying Before the Committee............................ 168
ARTICLE I: REFORMING THE WAR POWERS RESOLUTION FOR THE 21ST CENTURY
[ORIGINAL JURISDICTION HEARING]
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TUESDAY, MARCH 23, 2021
House of Representatives,
Committee on Rules,
Washington, DC.
The committee met, pursuant to call, at 11:03 a.m., via
Webex, Hon. James P. McGovern [chairman of the committee]
presiding.
Present: Representatives McGovern, Torres, Perlmutter,
Raskin, Scanlon, Morelle, DeSaulnier, Ross, Cole, Burgess,
Reschenthaler, and Fischbach.
The Chairman. The Rules Committee will come to order.
I think we may have finally, finally caught lightning in a
bottle. For many years a coalition on Capitol Hill, Democrats
and Republicans, House and Senate, have been pushing not only
to end endless wars, but to re-examine the broad executive
powers that get us into global conflicts in the first place.
Despite the bipartisan support for change, it has sometimes
felt like a lonely battle, because no President in all my time
here has been open to even considering reining in their own
power.
I am an optimistic guy, but even I was starting to worry
that we might not get this done anytime soon.
But on January 20, we inaugurated a President who spent
decades grappling with the limitations of the War Powers
Resolution and looking for a way to change it. Earlier this
month, the White House reiterated its support for reining in
executive war power.
That really was the missing piece, the political will from
the White House. Now we have a real chance to not only look at
existing AUMFs, which I hope that we do, but to also reform the
War Powers Resolution itself.
This resolution passed when Richard Nixon was President
nearly 50 years ago--over his veto, I might add. Everything has
changed since then--when we fight, how we fight, and why we
fight. We have a responsibility to make sure that this
resolution changes, too, so it works in the modern age for a
modern Congress and for a modern military.
But, quite frankly, it is more than that.
In 1964, President Lyndon Johnson said: It is damn easy to
get into a war, but it is awful hard to extricate yourself if
you get in. We know all too well the truth of that statement.
That is why we are here today. It can't be easier to get
into a war than it is to get out of one. And it can't be that
Congress and the people that we represent are sidelined on the
life-and-death question of when we go to war.
That is just not my view. That is what the Constitution
tells us. The Framers put the power to declare war in the hands
of Congress. The Framers knew firsthand the dangers of all that
power being in the hands of one person. They knew what the cost
of war, both in terms of the loss of life and the loss of
funding and opportunity, meant for real people.
Now, we have strayed from that vision, there is no doubt
about that, and the results have been devastating. Presidents
increasingly go it alone and tell Congress the bare minimum
about military actions. Presidents and their lawyers look to a
20-year-old authorization of force to justify their actions.
If we do nothing, we shouldn't be surprised by the outcome,
which will be more, not less, executive control over
consequential questions of when we go to war.
So Congress is going to act, first, here at the Rules
Committee this morning and then at the House Foreign Affairs
Committee under the leadership of Chairman Meeks later this
afternoon.
Today we will hear from a variety of witnesses to better
understand what reforms are necessary and what is possible
under the House rules. Ranking Member Cole and I have assembled
today's panel not to check the Republican or Democratic box.
Now, we know we are brilliant, but we didn't invite you
here to tell us how smart we are--though, unless Mr. Cole
objects, that is certainly okay. But, instead, the ranking
member and I wanted a panel that could give us their best
advice as we think through the important question before us.
Some of you worked for a Republican President, some of you
worked for a Democratic President. But it is not your politics
that is important to us. It is your experience. Because if we
are going to chart a better path on how to wage war and achieve
peace, we need your help and we need your candid advice.
So with that, I am now happy to turn over to my ranking
member, Mr. Cole, for any remarks that he wishes to make.
Mr. Cole. Thank you very much, Mr. Chairman. Let me
associate myself with your remarks, particularly about the
unique opportunity I think we have in front of us.
And I will join you in giving the administration credit for
that. They have opened the door. It is really up to us to walk
through it.
Today's original jurisdiction hearing covers a critical
issue facing Congress: the scope of power and authority
concerning matters of war. Today's hearing follows on our
hearing last year covering the unique powers entrusted to the
legislative branch under Article 1 of the Constitution.
Frankly, there is no topic more important or serious than
Congress' authority to declare when, where, and how our Nation
chooses to go to war.
I first want to thank Chairman McGovern for arranging
today's hearing. Though the chairman and I disagree on a number
of things, defending the constitutional authority entrusted to
Congress is not one of them.
Both of us are equally concerned about the erosion of
congressional authority in matters of war in recent decades,
particularly given the corresponding expansion of executive
branch authority since the end of World War II. And both of us
believe strongly that we must rein in this expansion and
reassert congressional primacy.
In Article I, section 8 of the Constitution, Congress is
granted specific powers in relation to war. Among these is the
exclusive power to declare war, the power to raise and support
armies and a navy, and to make rules for regulation of the
Armed Forces.
There is an inherit tension between congressional authority
to declare war and the President's power under Article II of
the Constitution to be the Commander in Chief of the Armed
Forces. But in the recent years the trend has been for the
executive branch to seize authority at the expense of Congress.
In 1973, Congress passed the War Powers Resolution, which
became law over President Nixon's veto. And I just want to
pause and insert, it is important to remember it became law
over the President's veto. That meant it was a bipartisan
decision by Congress, because he wouldn't have been able to
overcome that veto without both Republican and Democratic
support.
And that was done at a time of war, when we were still
deeply involved in Vietnam. It tells you how strongly our
predecessors, I think, felt about trying to rein this problem
in.
The War Powers Resolution states clearly that the President
cannot commit the United States to an armed conflict without
the consent of the U.S. Congress. In the event that the United
States engages in hostilities with a foreign power, the War
Powers Resolution requires congressional notification and
forbids the use of armed force after 60 calendar days without
an Authorization for the Use of Military Force.
In recent years, Presidents from both parties have
committed American military forces to combat without consulting
Congress.
In 1993, President Clinton committed American military
forces to the U.N.-led intervention in Bosnia.
In 2011, President Obama committed American military forces
to NATO-led intervention in Libya.
And American ground forces have been present in Syria
during both the Obama and Trump administrations.
Each of these instances has represented a further expansion
of independent executive practice to commit American Armed
Forces and a further erosion of congressional authority.
Given this backdrop, it is appropriate for the Rules
Committee to now examine the War Powers Resolution. It is clear
to me that the existing War Powers framework is no longer
sufficient to safeguard congressional authority.
I am hopeful that our hearing today will shed additional
light on what reforms can and should be made to ensure that
Congress will continue to fulfill its constitutional
obligations and that executive action will be undertaken within
the bounds of clear statutory authority.
Of course, such a hearing would not be complete without
noting the five ongoing Authorizations for the Use of Military
Force that are still active today.
The 2001 AUMF authorizing military force against nations,
organizations, or persons responsible for the September 11
attacks, and the 1991 and 2002 AUMFs authorizing military force
against Iraq, continue in force today and have not been
repealed or replaced by updated authorities.
Both Chairman McGovern and I have expressed deep concern
about this state of affairs, and he and I have both been
supportive of efforts to update these authorities.
In the 20 years since the September 11 attacks, America
continues to engage against terrorist forces and their backers.
But neither the 2001 AUMF, broad as it is, nor the 2002 AUMF
were ever intended to serve as a blank check, authorizing any
and all use of military force wherever in the world the
President determines it is necessary.
I am in full agreement with my colleagues who support
reforming the 2001 AUMF, but I would also caution that we
should not simply repeal these authorities without ensuring
there is an appropriate replacement.
This is a bipartisan debate Congress should be having and
indeed must have in the months to come. We owe it to the
institution and the American people to ensure that Congress has
held a thorough debate on committing American troops to combat
in accordance with our constitutional responsibility.
With that, Mr. Chairman, I thank you again for calling
today's hearing and thank our witnesses for being here today,
sharing their important insights and expertise with us.
And I want to thank the staff on both sides of the dais for
their hard work in putting this hearing together. I think it
will be of enormous benefit to the Congress. Thank you for your
leadership in that respect, Mr. Chairman.
I thank you and yield back.
The Chairman. I thank the ranking member for his excellent
opening statement. And I, too, want to thank the staff on both
the majority and minority side for all their work in helping us
prepare this.
As some of you may recall, before the pandemic we began a
series of hearings in the Rules Committee to look at how
Congress has ceded or abdicated much of its constitutional
responsibility in a whole range of areas to the executive
branch. We held one hearing, but then the pandemic hit us and
we went on to have to deal with other things.
But I appreciate the ranking member's statement, and I
certainly share his views.
And now onto our witnesses. Let me introduce them.
Rebecca Ingber is a professor at Cardozo Law School and
taught at Boston University Law School for 5 years before
moving to Cardozo Law last year.
Prior to this, she served in the Office of the Legal
Adviser at the Department of State.
She is a senior fellow at the Reiss Center on Law and
Security at NYU. Her scholarship focuses on international and
foreign affairs law, as well as Presidential power. She has
worked on litigation before both the U.S. Supreme Court and the
International Court of Justice.
John Bellinger works on global law and public policy
practice at the Arnold & Porter firm. Prior to this, he has
served as Legal Adviser to the State Department, Senior
Associate Counsel to the President, and Legal Adviser to the
National Security Council during the George W. Bush
administration. He has extensive experience in U.S. foreign
relations and in litigation in U.S. courts and before the
international institutions.
Tess Bridgeman is co-editor-in-chief of Just Security.
Before this, she served as Deputy Legal Adviser to the National
Security Council and worked at the State Department in the
Office of the Legal Adviser.
She is also a senior fellow and visiting scholar at the
Reiss Center on Law and Security at NYU. In addition, she
served as Special Assistant and Associate Counsel to the
President under the Obama administration.
We are grateful for all three of you being here today. We
look forward to being enlightened.
So let me begin by yielding to Prof. Ingber to begin.
STATEMENT OF REBECCA INGBER, PROFESSOR OF LAW, CARDOZO SCHOOL
OF LAW; SENIOR FELLOW, REISS CENTER ON LAW AND SECURITY AT NYU
SCHOOL OF LAW
Prof. Ingber. Thank you so much, Chairman McGovern, Ranking
Member Cole, and members of the committee. I want to thank you
for your leadership in convening this hearing.
We are here today, in part, because we can no longer answer
a simple question: With whom are we at war?
When I say ``we'' cannot answer, I mean the American
people, I mean Members of Congress, I even mean members of the
U.S. executive branch who are prosecuting the many violent
conflicts the United States is engaged in across the globe with
groups most Americans have never heard of.
Despite Congress' constitutional power over the decision to
take the country to war, the United States is at war today with
groups and within countries that Congress has never determined
the nation should be fighting.
This is not how these decisions are supposed to work. When
the Framers granted to Congress and not the President the power
to declare war, along with a host of other war-regulating
powers, this wasn't a haphazard decision. They were not unaware
that decisionmaking by a legislative body, a body that at the
time required travel by horse in order to convene, would be a
slower process than decisionmaking by the President.
But the Framers pointedly gave this power to Congress,
specifically because they feared consolidating warmaking power
in one individual and because they valued the benefits of
placing the decision to go to war in a slower, more
deliberative branch.
In doing so, they recognized a narrow and implicit
exception for the President to repel sudden attacks in the
event of a true attack on the nation when there would be no
time to convene Congress to act.
Today this narrow carve-out for the President to act
without Congress in exceptional circumstances has been
distorted beyond recognition. Decades of Presidential
administrations--and, more pointedly, executive branch
lawyers--have aggressively construed the President's powers to
act unilaterally.
They have done so through expansive interpretations of the
President's constitutional powers and through expansive
interpretations of congressional statutes.
They have claimed that a whole range of military actions
that look an awful lot like war, from drone strikes on nonstate
actors to taking out another state's military capabilities, are
not technically war of the kind that implicates Congress'
constitutional powers.
They have interpreted the limits Congress enacted in the
War Powers Resolution as an additional delegation of authority
to the President. They have creatively interpreted the 2001 and
2002 AUMFs to extend to conflicts with actors that Congress
could not have had in mind when it passed those statutes, in
many instances to groups that did not even exist until years
later.
And in some extreme cases, executive branch lawyers have
claimed that the President can go beyond even the significant
authorities Congress has granted him to use force against any
perceived threat or even to effect regime change if the
President perceives it to be in the national interest.
Now, I don't suggest that Presidents have done all of this
in bad faith. In many cases they are simply acting in what has
often been a power vacuum.
But it does not have to work this way, and I want to
recognize the significant bipartisan efforts this committee and
others have made to pushing ahead to reset the balance. And I
want to suggest just a few overarching considerations as you
move ahead.
First, it is critical to take a holistic approach to
reform. The President's claims to power here are like a
balloon. If we press on one side of the balloon, for example,
if Congress were to simply repeal the AUMFs, this will apply
pressure to the other side of the balloon, leaving the
President to rely more significantly on sole constitutional
authority.
So effectively reasserting Congress' role in decisions to
go to war requires moving forward with both AUMF and general
war powers reform together.
Second, these legislative solutions must have teeth. They
should include concrete consequences, like a funding cutoff
with a shorter clock.
Put the President and executive branch officials on notice
from the outset that if they can't get congressional support
for their actions, their funding has an expiration date. And
clearly define the trigger for when that clock starts.
Old AUMFs should be repealed and any new authorization
should be made only after the case for force is presented to
you and analyzed and should include precise language regarding
the targets of force, how and where that force can be used and
when the authorization will sunset.
A new AUMF--and this is key--a new AUMF should not be a
blank check for the President to use force forever and without
ever having to return to Congress.
And, finally, Congress must be involved in decisions to
deploy forces abroad and those decisions must take into account
the risks to those troops and the risks of creating new
conflicts should those troops use force in response to threats
to themselves or to partner forces.
These are all consequential war and peace decisions and we
need to ensure that they are taken in a way that respects our
democratic system with transparency, with deliberation, and
with an opportunity for the people's representatives in
Congress to weigh in just as our Constitution directs.
Now, some will argue that war powers reform would be
dangerous, that it might hamstring the President's ability to
defend the nation. But under the Constitution, the President
will never lack authority to stop an actual attack on the
nation.
Rest assured that the executive branch will continue to
aggressively protect the President's prerogatives. So we need
Congress to protect its institutional power and, along with it,
the American people's voice in some of the most significant
decisions that we make as a Nation.
Thank you again for inviting me to testify. I look forward
to answering any questions the committee might have.
[The statement of Prof. Ingber follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you very, very much.
I now yield to the Honorable John Bellinger.
STATEMENT OF JOHN B. BELLINGER III, PARTNER, ARNOLD & PORTER;
FORMER LEGAL ADVISER TO THE DEPARTMENT OF STATE AND THE
NATIONAL SECURITY COUNCIL
Mr. Bellinger. Mr. Chairman, Ranking Member Cole, and
members of the committee, thank you for inviting me to testify
today about the War Powers Resolution and congressional and
Presidential war powers. I really want to applaud the
committee's interest and passion about taking up this subject.
I do feel that the moment is this year to try to get some war
powers reform done.
By way of background, I served for nearly two decades as a
national security lawyer under both Democratic and Republican
Presidents, including as Senior Associate Counsel to President
George Bush and Legal Adviser to the National Security Council
in the first term of the Bush administration and then later as
the Senate-confirmed Legal Adviser to the State Department in
the second term, serving under Condoleezza Rice in both
positions.
I was in the Situation Room during the 9/11 attacks, and I
served in the White House during the Iraq war. I was involved
in drafting and interpreting both the 2001 and 2002
Authorizations to Use Military Force and in preparing all of
the reports submitted by President Bush to Congress under the
War Powers Resolution between 2001 and 2009.
To start with my bottom line, the current laws governing
Presidential war powers are outdated and should be revised. The
War Powers Resolution of 1973 should be updated to reflect
modern military and political realities.
Congress should repeal the 2002 AUMF relating to Iraq, and
it should revise the 2001 AUMF against terrorist groups
responsible for the 9/11 attacks to authorize the President to
use force against terrorist groups that today threaten the
United States.
Successive Presidents have adopted increasingly contorted
interpretations of all three laws, and Congress has acquiesced
in these interpretations, rather than vote on new
authorizations. This is bad legal and constitutional practice.
So, to begin with, the War Powers Resolution, although
Presidents have sometimes had difficulties complying with the
48-hour reporting requirement, they have struggled in
particular with the resolution's requirement that the President
terminate any use of U.S. Armed Forces within 60 days unless
Congress has issued a specific authorization.
So, for example, President Obama continued the use of U.S.
military force against Libya for more than 60 days in 2011
after concluding that U.S. military operations did not actually
constitute hostilities within the meaning of the resolution.
And he then continued the use of U.S. military force against
ISIS in Iraq and Syria for more than 60 days in 2014, after
concluding--in a legal stretch--that the use of force against
ISIS had actually been authorized by Congress in the 2001 and
2002 AUMFs.
Now, in 2008, the National War Powers Commission, a
bipartisan commission chaired by former Secretaries of State
James Baker and Warren Christopher, and before which I
testified at the time, issued an excellent report that called
the War Powers Resolution impractical and ineffective and not
serving the rule of law. They recommended the resolution be
repealed and replaced with the mandatory congressional
executive consultation process.
I commend that report to you, and I strongly support the
War Powers Consultation Act that the commission recommended.
Now, let me turn to the 2001 and 2002 AUMFs.
The 2001 AUMF continues to serve an important legal
purpose, but as time has passed it has become increasingly
outdated.
And I would note here that 10 years ago, in 2010, shortly
after I left the Bush administration, I wrote an op-ed in The
Washington Post saying that it was outdated then, and that was
10 years ago.
It does not provide clear legal authority to use force
against terrorist groups that have been formed or expanded
after the 9/11 attacks.
As a result, I have long advocated revising the 2001 AUMF
to update it to address contemporary terrorist threats. I
especially applaud Senator Tim Kaine on the Senate side for his
efforts over so many years to forge a bipartisan consensus in
the Senate to revise the 2001 AUMF.
An updated AUMF is legally important to give our military
clear statutory authority to fight terrorist groups that
threaten the United States today.
And it is constitutionally important to demonstrate that
Congress has authorized the actions our military is taking,
rather than simply acquiescing in increasingly strained
executive branch interpretations of the 2001 AUMF enacted 20
years ago, before most Members of the 117th Congress were
elected.
To be clear, by my count, only about 15 percent of the
current Congress were serving when the 2001 AUMF was enacted.
Now, Members of Congress have understandable concerns about
approving a broad new authorization and extending what many
view as a forever war.
However, I am convinced that Congress can come together to
agree on a new AUMF that provides the President and our
military the clear legislative authorization--with appropriate
limitations--that they need to defend the United States against
persistent threats from modern terrorist groups.
With respect to the 2002 AUMF, the threat posed by Saddam
Hussein's regime was the primary focus of the law--and I was in
the White House at the time it was drafted--but it has
continued to be cited by Presidents Bush, Obama, and Trump as
authorization for a range of military activities in Iraq
through 2020.
In 2014, for example, President Obama cited the 2002 AUMF,
in addition to the 2001 AUMF, as authority for the use of force
against ISIS and Iraq.
And even more controversially, as members know, President
Trump cited the 2002 AUMF as authorization for the U.S. drone
strike on January 2, 2020, that killed Iranian intelligence
chief Qasem Soleimani while he was visiting Iraq.
In my view, both of these latter interpretations of the
2002 AUMF were strained and unnecessary. In contrast to the
2001 AUMF, which should be updated, the 2002 AUMF should simply
be repealed.
In sum, I hope that Congress will repeal and update the
2001 AUMF, repeal the 2002 AUMF, and hold further hearings to
consider potential revisions to the War Powers Resolution.
Thank you for inviting me, and I look forward to your
questions.
[The statement of Mr. Bellinger follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you very much.
Dr. Bridgeman.
STATEMENT OF TESS BRIDGEMAN, CO-EDITOR-IN-CHIEF, JUST SECURITY;
SENIOR FELLOW AND VISITING SCHOLAR, NYU LAW'S REISS CENTER ON
LAW AND SECURITY
Dr. Bridgeman. Thank you, Chairman McGovern, Ranking Member
Cole, and members of the Rules Committee. I would like to
reiterate the thanks expressed by my fellow witnesses for your
leadership on this important set of issues. I do think now is
the time to act.
All of us here today share a concern about the erosion of
Congress' role in exercising its constitutional war powers.
I was deeply involved both at the White House and, prior to
that, in the State Department in how the President exercises
his war powers, both under the Constitution and under statutes
provided by Congress delegating authority to take the nation to
armed conflict.
The concern about the erosion of Congress' powers is not
new, but it has gained increased urgency in an era marked by
sprawling long-term conflicts that Congress has not explicitly
weighed in on. I look forward to discussing with you today how
to reverse this trend so that the people's representatives
exercise their authority, and fulfill their duty, to decide
when and how the United States uses armed force abroad.
In my written testimony I offered six concrete proposals
for war powers reform, and I want to highlight those for you
today because I hope they can form the basis for part of our
discussion.
These reforms, in my view, are achievable, and they are
mutually reinforcing.
They further goals that I believe we share: restoring
Congress' role in deciding when and how to go to war, without
taking away from the President the authority to use defensive
force when necessary.
And this brings me to the first reform.
The War Powers Resolution should clearly delineate two
circumstances when the President may use force without prior
congressional authorization. They are very simple. First, to
repel an imminent or sudden attack on the United States; and,
second, to protect, evacuate, or rescue U.S. nationals in
situations of peril.
But for other types of interventions, including the ones
that Chairman McGovern and Ranking Member Cole brought to our
attention, Congress should vote.
Second, the Resolution's key term ``hostilities'' must be
defined. The Resolution's core requirement that the President
must terminate unauthorized hostilities after 60 days has been
rendered all but useless by the executive's exceedingly narrow
definition of the term ``hostilities.''
To avoid continued end runs around the termination
requirement, hostilities should be defined to include any
lethal or potentially lethal use of force by or against U.S.
forces, including when deployed by remote weapon systems, like
drones or cyber weapons, and including in low-intensity or
intermittent engagements, which have become the norm in recent
conflicts.
Third, while defining hostilities will make the termination
clock meaningful again, the 60-day time period is too long. It
incentivizes the executive branch to start engagements that are
not defensive in nature or to turn defensive strikes into
escalatory conflicts before the clock runs out. But there is a
simple solution: shorten the clock.
Fourth, enforcement. To add teeth back into the War Powers
Resolution, it needs a clear, automatic funds cutoff. This
would apply to any activity that is not consistent with the
statute.
An enforcement mechanism should not require a vote to take
effect, and it certainly should not require a supermajority of
both Houses.
Think of it this way. The statutory requirement being
enforced is merely preserving a power that Congress has already
been delegated in the Constitution.
Fifth, as I documented in the War Powers Resolution
Reporting Project at NYU Law's Reiss Center on Law and
Security, which analyzes all of the unclassified 48-hour
reports since the War Powers Resolution was enacted, Presidents
generally aim to comply with the War Powers Resolution's
reporting requirements, but they often provide boilerplate
language to Congress.
Congress needs much more meaningful information to
understand the reasons for an introduction and its full
implications.
You can ask yourself: What would you need to know to take
an informed vote on authorizing a use of force or letting an
automatic funds cutoff kick in? That should guide us in terms
of what the President is required to provide.
Sixth, and finally, I will agree with Professor Ingber and
with John Bellinger that the 1991 and 2002 AUMFs are
operationally unnecessary and leaving them on the books only
makes them susceptible to abuse. But we should be clear that it
is the 2001 AUMF that has been stretched beyond recognition by
administrations of both parties and must be repealed.
If circumstances require a new force authorization, it must
include explicit boundaries to avoid repeating the situation we
find ourselves in today. I included specific guardrails in my
written testimony that I would be happy to discuss with you in
today's hearing.
In sum, the status quo in which the people no longer have a
voice in matters of war and peace is untenable. The executive
cannot be left to check itself any longer.
But this means Congress must have the courage to assert
itself on these issues, and I believe it is starting to do so.
Recent votes to end U.S. involvement in the disastrous conflict
in Yemen and to avoid war with Iran show that this is possible.
But the result in each case, a presidential veto that was
foreseeable and the continuation of the status quo, shows that
Congress' tools are inadequate. The War Powers Resolution must
be updated to ensure Congress is able to assert itself when it
has the political will to do so.
I hope that the reforms we discuss today will put us on
that path, and I look forward to answering your questions.
Thank you.
[The statement of Dr. Bridgeman follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you very much.
I want to thank all three of you for excellent testimony.
And before I get to my questions, I just saw my friend Mr.
Perlmutter from Colorado come online. I think I speak for
everybody on this committee when I say that all of us are in
deep shock over the shootings in Boulder. And, obviously, our
prayers are with the people of Colorado, the family members of
the victims. A police officer was shot who had a young family.
It really--this is madness. And the subject of another
hearing is we need to do more than just express our thoughts
and prayers over these tragedies. But I just wanted to make
sure that we acknowledge what happened.
In any event, again, I want to thank the witnesses for your
testimony.
The Rules Committee is not always associated with
bipartisanship and we don't always hold hands and sing kumbaya
together, I mean. But at the risk of shocking everybody, I want
to start by highlighting I think some of the things that we
agree on.
I mean, each of our witnesses noted in oral or written
testimony that you believe Congress should repeal the 2002
Authorization for the Use of Military Force. You all seem to
agree that we should either repeal or repeal and replace the
2001 authorization of military force. And each of you said that
you believe that the War Powers Resolution is not working and
is in need of reform.
Is that right? Does everybody agree? All the witnesses
agree on that?
I am seeing yes. Okay. All right.
Mr. Bellinger, just briefly, tell us, what is the Office of
Legal Counsel? And what role does it play in the war powers
discussion?
Mr. Bellinger. So let me separate the couple of players
that are involved here.
The Office of Legal Counsel is the part of the Justice
Department which by statute issues opinions interpreting the
law under delegated authority from the Attorney General. So
they are essentially the President's lawyers for the
interpretation of statutes, and they write opinions.
The White House lawyers--and I was a White House lawyer, so
I was part of the White House Counsel's Office and the lawyer
for the National Security Council before I moved to become
General Counsel at the State Department.
At the White House we relied on the Office of Legal Counsel
for those opinions, but they are not necessarily binding on the
President. The President and the White House lawyers do look to
the Office of Legal Counsel to write these opinions on war
powers. But it is ultimately up to the President and to the
counsel to the President to decide what legal positions they
want to take.
The Chairman. Thank you.
So, Professor Ingber, you are a law professor. I am not a
lawyer. So please make this as simple as possible for me. Save
the tough stuff for Professor Raskin, who is a constitutional
expert.
Can you tell me where the role of the Office of Legal
Counsel can be found in the Constitution?
Prof. Ingber. There is no role for the Office of the Legal
Counsel in the Constitution. The Constitution provides that the
President will get advice from advisers, and these are
Presidential advisers.
Sometimes OLC memoranda get discussed as if they are
Supreme Court opinions. And I think it is important to keep in
mind that that is not what they are. These are the President's
lawyers.
Alumni from the Office of Legal Counsel and lawyers in that
office will tell you that they seek to provide the best view of
the law when they are giving legal advice to the President.
But they will also tell you--and I think Professor
Goldsmith will tell the HFAC when they meet later today--that
they are also doing so from the perspective of lawyers who have
a client, and that client is the President, and their job is to
protect Presidential power.
So the President has a set of lawyers who view it as their
institutional prerogative to protect Presidential power. And
there is no reason for the rest of the branches to view those
lawyers' positions as if they are written down in the
Constitution. You have your own institutional prerogative to
interpret the law as well.
The Chairman. Yeah. And I apologize for the committee's
kind of very simplistic questions, but I want to get them on
the record.
Okay. So tell me where the Constitution gives lawyers
advising the President the power to settle conflicts between
the Congress and the President over questions like what
constitutes a war and who should declare it.
Prof. Ingber. Right. You are not going to find that in the
Constitution, and that might be just the answer you were
looking for.
The Chairman. Yeah, it is, I mean, because I was getting a
little confused, because we keep on hearing about the OLC
opinions to establish legal precedent to engage military
conflicts. If the OLC isn't supposed to determine what the law
is and what the law means, then who is supposed to decide that?
Prof. Ingber. Well, each of the branches has a
responsibility to make that decision for itself.
OLC is providing a really important function for the
President. The President has to figure out where the President
thinks those lines are and it is very useful to have lawyers
who are thinking about those issues all the time, because the
President needs to figure out when the President can act.
But the other branches have their own independent authority
and also obligation to do so for themselves.
The way the Supreme Court has viewed these questions is
they have looked to actions by both the branches as providing,
you know, as precedent for determining where the proper formal
allocation should be today.
And so when Congress has not acted or has acted in ways
that we might see as ambiguous, the Supreme Court has often
read that as acquiescence in the President's actions.
The President has OLC standing up there with a memo, and
perhaps Congress might need to have something of its own to be
able to more effectively push back.
The Chairman. Right. Yeah. Because one of the frustrations
is that when people refer to the Supreme Court, the Supreme
Court usually says that these are political questions best
decided by other branches.
Dr. Bridgeman, we agree that the War Powers Resolution
isn't working well. Courts increasingly tell the President and
Congress that these are political questions, so you all figure
it out. And we have seen the President's lawyers kind of fill
the vacuum. I mean, that is kind of what has happened.
The President inevitably faces the voters, as do Members of
Congress, which at minimum is a chance for the people to show
how they think their leaders are doing, doing their job.
What ways can the people weigh in with White House lawyers,
I mean, who obviously are playing a big role in this big public
policy question?
Dr. Bridgeman. It is an important question, and I think you
put your finger on the answer when you talk about the role of
the people.
It is through Congress that the people are supposed to
express their voice in the political process, first and
foremost, and the House of Representatives is, of course, the
closest to the people. This is something that I think is
vitally important as we think about how to police the executive
branch.
You mentioned political will, and that political will needs
to come from this body and from understanding the desires and
the needs of the people.
I think we have a country that is war weary. We have been
at war for two decades now.
When you talk to servicemembers and their families and they
talk about the multiple deployments that they have faced, the
toll that that takes on their families, the toll that takes on
military spouses and military children, when you think about
the trillions of dollars that these wars have cost, and when
you think about whether they, in fact, have made us appreciably
safer over these last two decades, that is the people
expressing their views to you as their representatives. And
then it is up to Congress to engage.
Congress can do things like hold hearings. Congress can
take votes pursuant to the War Powers Resolution, which
happened in 2019 and 2020 successfully for the first time ever.
But, fundamentally, as we have seen, those votes didn't change
the status quo because the War Powers Resolution is broken.
And that is where you come in. Congress needs to provide a
voice, but Congress also needs to ensure that it gives itself
the tools to make that voice effective and meaningful.
I would just add one final point, which is that when
Congress does so, when Congress legislates, that is what hems
in the executive branch lawyers.
So going on record with hearings absolutely is a step in
the right direction. Expressing the voice of the people is
vitally important. But legislating and then ensuring that the
executive branch will implement that legislation because it has
meaningful enforcement mechanisms, that is how Congress best
expresses the voice of the people in its debates with Article
II.
The Chairman. Yeah. No, one of my frustrations has been
that that Congress hasn't provided the proper oversight.
And you mentioned the war powers votes that we have had. I
have been part of a group that has kind of forced some of those
votes. But they are not a substitute for thorough hearings, a
transparent process, more oversight, more discussion.
And it is too easy for people to find an excuse to table
them or vote against them, even when they know that a
particular policy is not going the way we want it to go.
But we talk about these AUMFs. I was around when these
AUMFs were approved. And I don't think Congress 20 years ago
could have anticipated what the reality in the world was going
to be in 2021 or that an Authorization for the Use of Military
Force in Afghanistan or Iraq could somehow be used for
something totally out of the realm of those particular
conflicts years later.
And we don't ever repeal these things, right? So, I mean,
40 years from now, 50 years from now, if we don't address these
AUMFs, they could be invoked to justify some sort of military
intervention somewhere else in the world.
So, look, I mean, I think, part of the hope here--and I
think everybody on the panel is reinforcing this--is that we
need to reform the War Powers Resolution.
I would like to, if I could, Professor Ingber, I would like
to turn to an issue near and dear to the Rules Committee's
heart, and that is process and procedure.
Professor Ingber, can you tell us briefly the history of
the legislative veto, what it is, and what happened to it, as
well as how the Congress in 1973 might have relied on it when
constructing the War Powers Resolution?
Prof. Ingber. So the Supreme Court in a decision that was
not about war powers at all, in the Chadha decision, decided
that Congress could not legislate, could not make law without
bicameralism and presentment, which is to say without two
Houses of Congress voting on a resolution and then presenting
it to the President for signature.
In order to make any law both houses of Congress have to
agree on the text and the President has to sign or else
Congress needs to override a potential veto with a two-thirds
supermajority.
Prior to the Supreme Court's decision, Congress had at
times included in legislation, like in the War Powers
Resolution--and I can read you the language you had included
the War Powers Resolution that provided that forces shall be
removed by the President if Congress so directs by concurrent
resolution, which would have been a resolution that would not
have then needed the signature of Congress.
So a mere majority of Congress would have been able to
speak its mind and force the President to remove forces from
hostilities when Congress chose to do so.
But after Chadha that has put that provision under a bit of
a constitutional cloud. There are many who believe that that
that enforcement mechanism has been entirely gutted.
I don't think that is entirely the best way to read it. The
fact is that the Constitution entrusts Congress and not the
President with the authority to declare war.
And, therefore, if the President is already engaging in an
undeclared war, if the President is already engaging in
hostilities without authorization from Congress, then the
President may not have that authority to begin with.
And so to the extent courts want to look to Congress'
actions as acquiescence, then a concurrent resolution should be
the absolute opposite of acquiescence in those actions.
And so it is a totally plausible and I think the best
reading to say that a concurrent resolution would be Congress
putting its foot down and saying, no, we have not actually
authorized the use of force here, we are being very clear about
it, and the courts should not read this as an authorization to
use force.
That said, I don't think you can rely on the courts having
that reading. And history has shown that the courts are
exceedingly reticent to interfere when there is any hint of
ambiguity about the President's ability to use force and have
even viewed lots of things, even at times a vote to eventually
end the conflict, as acquiescence in the conflict until that
point.
So my view is that you can't really rely on the courts.
What you need to do is, use your own tools to create
legislation that has real teeth.
The Chairman. So since the 1983 Chadha decision Congress
has tried to figure out how to bounce back. On war powers, the
Senate, led in part by then Senator Joe Biden, sought to
address constitutional issues by requiring a joint resolution,
while the House kept the original approach, which called for a
concurrent resolution.
And for the people who are watching this at home, a
concurrent resolution, which is often used to express the view
of Congress, does not require the President's signature. The
joint resolution, however, is more like a traditional bill.
And exact language must pass each house and must have the
President's signature in order to take effect. Otherwise,
Congress can override a veto with two-thirds majority of each
house.
So to start a war, Congress needs a majority of each house
and the President's signature. But Congress needs
supermajorities of both houses to stop a war over a President's
objection. There is something wrong with that.
So to each witness, is this a good process for questions of
war and peace? Is this what you believe the Founders
envisioned, the President can go in alone and only
supermajorities in Congress can stop him?
This is for all three of you.
Mr. Bellinger.
Mr. Bellinger. Well, I am reluctant to wade into either
House or Senate processes. I will simply say that, particularly
when it comes to modern war powers--and I think we really do,
we have a living Constitution, but we do have to recognize that
the power of Congress to declare war enshrined in the
Constitution in the late 1700s has also got to reflect modern
military realities where a President may need to act extremely
quickly. We all know that.
And you all know better than I do both how difficult it can
be to get both houses of Congress to convene, debate, agree on,
and authorize a use of force.
So I will say that I think we do need to give the President
a good deal of flexibility to use force in certain situations
that are going to be short of a significant war, and at the
same time we need to have procedures that will allow both
houses of Congress to act quite quickly.
I leave it to the two bodies, but it has always puzzled me
why the bodies would have different procedures for voting on
war powers.
But my bottom line is that I do think that both houses need
to have procedures that will allow them--and, indeed, perhaps
force them by self-discipline voted by yourselves--to act
quickly on war powers measures.
The Chairman. Thank you.
Professor Ingber.
Prof. Ingber. So I absolutely agree that this is an
untenable situation.
I am not sure I agree entirely with John Bellinger's
suggestion of giving significant flexibility to the President
to act before those questions reach Congress. I think that
there is a risk there for potential escalation into the very
kinds of wars that are then extremely difficult to rein in.
So I think there needs to be congressional engagement at
the outset. You need to be in a situation where the President
is forced to bring the case to you, bring the case not only for
why force is necessary in these circumstances, but also for
what the end game would look like.
I think that will have a useful effect on both executive
branch decisionmaking and deliberation between the branches and
transparency, and it will also give the American people an
opportunity to understand what we are doing.
I think that is important and I think there are ways to do
it. But I agree entirely with Mr. Bellinger that there needs to
be expedited procedures for doing so. And one of the ways that
I think you can bind yourself to the mast ex-ante would be to
create, for example, automatic funding cutoffs until Congress
affirmatively authorizes force.
You need to flip the status quo. The way the current
scenario is, the status quo is the President will act unless or
until Congress exercises sometimes politically infeasible power
to rein the President in. And I think you need to flip that
scenario so that the status quo is the President can't act
unless and until Congress has the opportunity to weigh the
evidence before it and authorize force.
The Chairman. Thank you.
Dr. Bridgeman.
Dr. Bridgeman. I will answer your question in the negative:
No, it is certainly not what the Constitution envisioned and it
is certainly not tenable.
But I want to just emphasize here that the constitutional
design matters. It was this way for a reason, and there are
real consequences when it is flipped on its head. It
essentially inappropriately shields executive branch
deployments of the military from democratic accountability.
That is a real problem. If you need supermajorities of both
houses to stop a war, there is not appropriate democratic
accountability for uses of our military abroad.
So I think everything that Professor Ingber just said is
exactly right. We need those priority procedures to enable
Congress to act quickly.
I think that goes a long way towards ensuring that the
President's flexibility being hemmed in by a reformed war
powers statute doesn't have any detrimental consequences for
our national security.
Those priority procedures need to ensure that there can be
a vote, there can be debate, although it needs to be a limited
time period, and that the process continues so long as there is
a simple majority in both Chambers.
That needs to be enshrined and retained in an updated War
Powers Resolution.
But we also need that backstop, we need that enforcement
mechanism, both to incentivize the President not to get us
involved in conflicts that can't be wound down or to get us
involved in conflicts that are unnecessary before Congress has
had a chance to weigh in; but also to ensure that Congress is
brought into the process meaningfully well in advance, as
Professor Ingber just said.
I want to emphasize here that the War Powers Resolution now
has a consultation requirement. But it is treated as a road
bump, nothing more. Consultation is often essentially a staff-
level call.
Sometimes the President himself has been involved, as Obama
was with Libya in 2011. That didn't do much to assuage the
concerns of Members of Congress when what ended up happening in
the end looked a lot like finding a loophole through the
enforcement mechanism that the War Powers Resolution had put in
place.
So consultation is important, but we need those back-end
enforcement backstops for that consultation to actually be
meaningful.
The Chairman. Thank you. I appreciate it.
Mr. Bellinger. Could I come back in on this point?
The Chairman. Yes. Go ahead, Mr. Bellinger.
Mr. Bellinger. And forgive me. I wouldn't normally do this
in a normal hearing, but the staff tells me that you----
The Chairman. We are not normal. We are not normal in the
Rules Committee.
Okay. Go ahead.
Mr. Bellinger. You slap me right down, Mr. Chairman, if
[inaudible].
I am told by the staff that you really like to try to get
the witnesses to sort of focus on what are their disagreements.
And I want to say here so you can see it right up front and it
will help to frame the hearing, both Professors Bridgeman and
Ingber and I are old colleagues, as you could tell. All three
of us served in the Legal Adviser's Office at the State
Department, an office of which we are all fond.
But let me focus this here. I think in theory what they
both say about the way congressional processes and voting of
war powers should work, that should be the perfect world. But I
just do not think that we are going to see Congress voting on
every relatively minor use of force by the President.
It has never worked that way in history under Republican or
Democratic Presidents, and it is not going to change that way
in the future. And, in fact, even the Constitution itself says
that the Congress' power is to declare war, not to nip the
executive's power to use force where necessary.
So while, yes, if Congress would be willing to convene
rapidly to authorize every use of force by the military, that
is the way it ought to work.
But I think what has happened over time and what I think is
really both the constitutional structure and the political
reality is that Presidents of both parties--and I think my
guess is that President Biden would say this.
I do not say this as somebody who served in a Republican
White House, but certainly watching the way President Obama
worked, is that Presidents need a good deal of flexibility to
use military force for a variety of purposes. But there does
reach a point where Congress' authorization is necessary to
continue or to start a significant conflict.
And I hope we will come back to it. But this is exactly
what the War Powers Resolution, that the National War Powers
Commission recommended Congress consider.
Dr. Bridgeman. Can I----
The Chairman. Thank you. Sure.
Dr. Bridgeman. Just to clarify one point, because I think
there might be more agreement than was apparent here.
I don't think anyone is suggesting that the President
should have to come to Congress to repel a sudden attack, to
rescue our nationals, to evacuate an embassy, to do a hostage
rescue, for example. These are the types of things that we see
Presidents doing quite often, unfortunately, in the modern
world, and those are the things that would be preserved in
these proposals.
I think it is the idea of giving the President flexibility
for a variety of purposes where we may disagree.
So I think for humanitarian interventions, for
stabilization missions, advise and assist missions, it is those
kinds of things that should be in Congress' hands.
But I want to make sure we understand that there is common
ground here with respect to preserving the President's ability
to defend us against attack or to defend our nationals in
peril.
The Chairman. Well, thank you.
Let me just close, then I will yield to the ranking member.
I have gotten the impression that various administrations,
both Democratic and Republican administrations, have viewed
Congress when it comes to the issues of war as a nuisance, as
something to try to get around or to avoid. That is why I think
consultation has become something that really isn't meaningful.
But they try to find ways around us, try to find ways to
not have to come and have a debate on some of these very, very
important issues of life and death.
We have had wars over the time I have been in Congress.
People have died in those wars. There is a tremendous cost not
only in terms of human life, but in terms of treasure, that
goes along with these wars. And the notion that a branch of
government can essentially be bypassed is really, really
disturbing to me.
Now, so that is the fault on the executive.
There is a fault on the legislative branch, too. We have
colleagues on both sides of the aisle who, quite frankly, would
rather not deal with these issues, because they could be very
politically sensitive issues. And sometimes people prefer to be
on the sidelines. If things are going well, we will cheer you
on. If things aren't going so well, they say, well, I would
have done this differently.
There is a little bit of what I call moral cowardice over
the years in the legislative branch of basically ceding our
constitutional responsibilities to the executive branch.
It doesn't take a lot to say that Congress should reclaim
power ceded to or taken by the President. It doesn't take a lot
of courage to say that. The hard part is actually doing it.
Right?
And the normal playbook around here says that when my team
is in the White House, I won't complain. Well, my team is in
the White House right now. I support President Biden. I think
he is a good person. I believe that he and his team are trying
to make the best choices for the American people.
And still I believe what I believed last year when the
other team's guy was in the White House and every year before
then, and that is the process for how we wage war and establish
peace in this country is broken. It is badly broken.
And so let's not miss this opportunity to change course.
Let's focus on where we agree, not just where we don't.
And, again, this is the first, I think, of several hearings
on this topic. But I am hopeful that we will come up with a
solution that we can bring to the floor and move it forward.
So with that, let me yield to Mr. Cole, the ranking member,
for any questions he may have.
Mr. Cole. Thank you very much, Mr. Chairman.
First of all, again, thank you for holding the hearing.
Thank our witnesses. Great set of witnesses. Great discussion.
Chairman, great set of questions by you.
And let me just add I couldn't agree more with you that we
need to take this rare opportunity. I have been in Congress
since January of 2003, and--but we have never had this kind of
opening before. I would rather act and not get it quite right
than do nothing at all and miss this really unique opportunity
to reassert congressional authority.
And I think back over my time in Congress, and I would have
opposed President Obama's decision on Libya. I thought it was a
mistake at the time, you know, and I thought using NATO when no
NATO country had been attacked was a real stretch. And I
thought we sent a message to Iran and to North Korea: Don't
give up your WMDs. This is what happens to you when you do.
It was a big mistake. On the other hand, I would have been
very supportive of President Obama's decision on ISIS in 2013
and 2014. I think he did the right thing. And didn't have an
opportunity to really express myself clearly on either
occasion. None of us did.
And, you know, that needs to change. I agree very much with
your remark, Mr. Chairman, and I am going to flip what Dr.
Bridgeman said. She talked about insulating the executive. I
think you are exactly right when you talk about insulating
Congress. And I think a lot of our Members have wanted to avoid
those kinds of decisions because you are held accountable
pretty, you know, pretty quickly.
Going to war in 2003, decision actually made in October of
2002, was pretty popular. It wasn't very popular by 2005 and
2006. And so, you know, I think forcing Congress to put its
fingerprints on these kind of decisions is really something
that we need to do. And, you know, that is the American people
then have the ability to hold us accountable and, through us,
hold the executive branch accountable.
Let me ask all three of you this question. It is a very
unfair question, one that my staff didn't give me to ask, but
you have all been in very sensitive executive branch positions
when these kind of discussions were going on. And I know
certainly President Obama did send a sort of reformed AUMF up
for Congress to consider. It was pretty weak stuff and pretty
far after the fact, frankly.
And I remember asking Secretary Mattis in a Defense
Appropriations Subcommittee hearing in 2017, did he need a new
AUMF? And he said: Yes, we absolutely do need a new AUMF. You
know, and of course we never got that request formally from the
administration.
So, inside your--the respective administrations you were
with, how serious was the consideration ever given to say,
``Hey, we have got an AUMF that we are stretching beyond
belief; we need to go ask Congress to do something new''?
Anybody seriously put that question to a President, and how
did different Presidents respond? Again, I am not asking you to
violate any confidence or whatever. I am just curious if this
is a debate on one end of Pennsylvania Avenue, is it ever a
debate on the other end of Pennsylvania Avenue?
And let me start--I will start in the order we had. Dr.
Ingber, let me go with you.
Prof. Ingber. So the way this came up for me historically
was in the context of decisions about who could be detained at
Guantanamo and the extent to which those individuals actually
fell within the AUMF. This has been widely reported that there
was a lot of interagency disagreement during those years over
what individuals were covered by the AUMF and the extent to
which those individuals should be covered by the AUMF.
And, interestingly, in particular in the way this arose in
the early years of the Obama administration--and I should say I
worked on these issues under both the Bush and the Obama
administration, but they really came to a head under the Obama
administration because of all of the litigation that was
underway--and so the way these legal questions came to a head,
you had the Obama administration come in, and, as a career
civil servant, I was able to watch all of this sort of happen,
this transition. And the individuals come in, and on the first
few days in office, the Obama administration made these
executive orders about closing Guantanamo and established a
task force and this was going to be a reasoned process of
decisionmaking about who could be detained and about what the
AUMF meant, and who it covered, et cetera.
But the reality of what happened at that time is that all
of that decisionmaking got channeled into a litigation-driven
process because we were in the midst of active litigation over
all the Guantanamo detainees, and so the decisions about how to
interpret the AUMF during those early years of the Obama
administration came about primarily through litigation where
all the influences, all the institutional biases are to project
a defensive view of executive branch power because you are in
defensive litigation before a court. You are in a position
where DOJ's litigators are running the process, and they are
institutionally set up to defend the President's power to do
whatever is before the court; in that case, defend any given
individual.
And so all of the institutional biases in that moment are
geared toward saying the President has the power to do X, Y, Z,
and anything that is before the court in that moment. That is
how a lot of decisions end up getting made, particularly when
these decisions are made in the course of defensive litigation
inside the executive branch.
I don't know that you can look at from the outside and
think that every decision that the executive branch makes is
the result of a reasoned, deliberative, forward-looking
process--we want to have this authority going forward--rather
than sometimes a backward-looking process; we are just
defending decisions that have already been made.
Mr. Cole. Thank you.
Mr. Bellinger, was there ever any consideration in the Bush
years of saying, ``Hey, we got it wrong in 2001 or 2002; we
need something different'' or ``we need to look at the War
Powers Act,'' or were you sort of caught up always in, ``We
have made these decisions, and now we have to defend them''?
Mr. Bellinger. Well, of course, this was 10 years ago
rather than more recently, so we had 8 years of practice under
the 2001 AUMF, and it had--by the end of the Bush
administration, even then it was getting to be outdated.
I was in the Situation Room and spent hundreds and hundreds
of hours, particularly in the second term, debating whether
particular terrorist groups were either the same as, affiliated
with, associated with, or somehow had ties with the people who
had committed the 9/11 attacks.
So, in 2002, 2003, 2004, 2005, it was easier, but, as it
got to be 2007 and 2008, it was getting harder. And I--well,
literally, we would spend hours debating, well, is this group
really the same as the group that Congress gave us the
authority to use force on? And then, of course, it just got
worse for the next 10 years.
The ISIS example that you gave, I think, is useful both
legally and politically. I think Dr. Bridgeman may have been in
the White House at the time. The Obama administration actually
reached out to me, even though I was out, to see if I would
support what they were doing.
I think their preference in 2014 would have been to get a
new congressional authorization. Of course, any President would
prefer to have authorization. But, as you well know, at the
time the President asked, it was July, August of an election
year, and I think--you know, I am reluctant to get into
politics, but very difficult to pull 535 Members back in August
of an election year to vote a new authorization to use military
force.
So, ultimately, the Obama administration used the really
pretty legally strained argument that ISIS was really the same
group that Congress had authorized back in 2001. And that was a
stretch, because, in fact, al-Qaida had essentially divorced
itself from ISIS.
My sense, again--you all can tell me--was Congress didn't
actually disagree as a policy matter with what President Obama
wanted to do. Mr. Cole, I think you said you supported that.
But it just would have been very difficult to drag Congress
back for a vote to vote that new authorization.
So, yes, to answer your question, particularly as these
laws have gotten further and further dated, there is a good
deal of debate inside the executive branch. That is, I am sure,
why Secretary Mattis said to you, ``In theory, yes, I would
love to have a new AUMF if you will give me the right AUMF.''
Mr. Cole. Absolutely.
Dr. Bridgeman, same question.
Dr. Bridgeman. I think it is a really important question,
and I just want to give you two quick, concrete examples.
The first--and I was still at the State Department at this
time--was when President Obama decided to come to Congress with
respect to the possibility of striking Assad in Syria in
response to chemical weapons use. And he said he had authority
under Article II of the Constitution to take those strikes. I
think that that is a stretch.
But he also said that, in the absence of a direct or
imminent threat to our security, it is right to take this to
Congress. He said that our democracy is stronger when the
President acts with the support of Congress, and America acts
more effectively abroad when we stand together.
I think that latter part of the statement is absolutely
correct, but, in claiming that he had Article II authority
before coming to Congress, I think he undermined his case. I
think it implied that coming to Congress is discretionary. And
I don't think that is the right way to think about it.
So I think it was absolutely right to come to Congress, but
doing so with an ``I am going to fall back on authority I
already have in my back pocket'' approach, it makes it harder,
I think, to seriously be contemplating that Congress must act.
And it kind of keeps the momentum, I think, in the executive
branch's court. I think the counter-ISIL campaign is an even
stronger example of that.
I agree with what Mr. Bellinger just laid out for you, but
I would add to it that I think this other issue that I just
flagged with respect to Syria was even more important with
respect to the counter-ISIL campaign. Had the President come to
Congress and said, ``I don't have statutory authorization for
this. The 2001 AUMF was meant to respond to the 9/11 attacks;
this is not that group. It is not those countries. It is not
that threat. It is a different situation. But let me tell you,
Mosul has been overrun, atrocities are being committed, and
Baghdad is going to fall unless you help us get there,'' I
think Congress would have acted, and I think Congress needed to
have that opportunity.
But the executive branch doesn't have that trust that
Congress will act, and the executive branch sees Baghdad about
to fall. So that trust needs to be built back up, and it needs
to be built back up by Congress being willing to take votes.
And Congress voted in the Yemen context in 2019. Congress
voted in the Iran context in 2020. If Congress keeps that up
and, most important, if Congress actually engages in war powers
and AUMF reform that this hearing is addressing today, I think
the executive branch will no longer have that crutch to say,
``Well, I have this authority in my back pocket, so, when I am
coming to you, it is not because I truly need you to act.''
That is the dynamic that needs to change, and I think
Congress taking these steps that we are talking about today is
going to start changing that dynamic over time.
The Chairman. You have to unmute, Tom. You have to unmute.
Mr. Cole. Thank you very much, Mr. Chairman.
Just to add some commentary from the other side of the
legislative fence, I remember talking to President Obama during
the Syrian red-line incident and making very much the same
points you had, that he had laid down a red line without asking
any of the rest of us.
And nobody supports the use of chemical weapons, but we
didn't intervene in Iran when Saddam Hussein used chemical
weapons in 1990 against the Kurds. You know, we just did not
choose to do that. And there is a big difference between what
we were looking at in ISIS a couple of years later and what we
were looking at in Syria.
But the mere fact that it was an after-the-fact
consultation with Congress, you know, ``I am going to do this.
I just want your fingerprints on it, but I can do it whether
your fingerprints are on it,'' you know, just was not a very
compelling argument, particularly when I suspect almost
everybody's phones were ringing off the wall: Don't do this. We
are already deeply involved in the Middle East. Why do we want
to go into Syria, where we don't--we might have a humanitarian
interests, but, frankly, I don't think we had very compelling
strategic interests in that particular outcome.
But let me just quickly get to one other point. And I know
there is a lot of interest in this. I don't want to take too
much time. The chairman has been very generous, as always.
All of you put your finger, you know, one way or the other
on the key point, which is congressional will. You know, at the
end of the day, this doesn't matter. And the chairman suggested
this, and he is absolutely right. It is very difficult when it
is a President of your own party. And I have seen people flip,
you know, in that regard. The chairman, to his credit, by the
way, has been very consistent in his concern on this issue,
whether there was a Democrat or a Republican in the White
House.
I remember on one occasion talking to--when we were engaged
in one of these efforts, actually together talking to Speaker
Ryan, who called me and said, ``You know, I see what you guys
are doing, and I am really afraid that, if you continue down
this path, we won't have the votes to sustain this particular
military operation''--I won't get into all of them--which I
supported, quite frankly.
And I said, ``Well, if we don't have the votes, maybe we
shouldn't do it,'' you know, even though I would have a
different opinion than probably my friend, Mr. McGovern, in
that case would have had, the point is, if you don't have
popular consensus and will behind it, it may be the wrong
decision, but that is okay. That is how our system works. We
don't get every decision right, but we take responsibility or
are supposed to take responsibility for the decisions we make.
And, when we are committing men and women to war and
committing the country to something that could go on a lot
longer and become a lot more difficult, we ought to be willing
to step up and do that and then go home and face the voters and
make the case as best we can and leave the decision in their
hands, where it ultimately belongs.
So what are the things, if any--and you touched on some of
these, I think, when you talked about how you would reform the
War Powers Act. You know, what are the things you would do to
sort of buck up congressional will so that we don't insulate
ourselves, so that we do require ourselves to assert the
constitutional authority that we do indeed have and so often
choose to ignore, particularly when it is politically
inconvenient and you happen to have a member of your own party
in the White House?
And, again, let me just start--I will start with you, Dr.
Bridgeman, and then kind of work through, and that will be my
last question, Mr. Chairman.
Dr. Bridgeman. Thank you. It is an important question how
to bolster that political will in Congress.
I do think one issue is muscle memory and the fact that you
have started to take votes. You are starting to hold these
hearings. Your staffs are getting acquainted with these issues
in a much more detailed manner. The fact that we haven't
visited these issues seriously in 20 years creates a knowledge
deficit, and it creates a process deficit.
I think this is--we have seen this with, for example,
treaty hearings in the SFRC. It is a Congress-wide issue, and
it is not just related to war powers. If no one is around who
has actually handled these issues before, it becomes much more
difficult to do. So part of it is building up that
institutional capacity, and I think this committee is a model
for doing that already. I think other committees are starting
to do the same.
In addition to building up that capacity, I think there
needs to be a clear sounding board with constituents about the
real issues. I think you may find you are exactly right that
you may not agree on the ultimate decision in every single
case. But I think we can look our servicemembers and their
families in the eye if we say, ``I am talking to you about
whether we should be doing this. I am making these hard
decisions about whether to send you into harm's way, and so I
want to hear from you about that.''
I think opening up those kinds of conversations with our
constituents is not only what we should be doing for Democratic
accountability--it is not only the morally right thing to do. I
think it is the politically right thing to do. And it will help
Members be able to say, ``I have talked to these families. I
have talked to these servicemembers that were deployed three
times in Afghanistan and two times in Iraq, and I am
listening.'' So I think that will help with the political will
as well.
And then from a more legalistic and mechanical perspective,
the most important thing is having that funds cutoff in place.
There is nothing like a funds cutoff to focus the mind and to
force a vote. And, if everyone has to vote, if it is a foregone
conclusion that a vote must happen, then it is a matter of
building up that political will to bolster yourself in the
event that the President comes to you through these other
mechanisms I am describing, but you know it is out there, and
so you have to take these steps. You can't sit back and, you
know, as Chairman McGovern said, you can't hide behind the
President.
Those were some of the key things I would highlight. I am
sure there are many others. But I would encourage those as
initial steps.
Mr. Cole. Dr. Bridgeman, you can go next, and then I will
go to you, Mr. Bellinger.
Prof. Ingber. So I agree with Dr. Bridgeman. I think there
is a bit of a feedback loop here. If you don't have the----
Mr. Cole. Oh, Dr. Ingber. I am sorry.
Prof. Ingber. Oh, that is all right. That is fine.
I think there is a feedback loop. If you don't have the
authority, then you are not expected to exercise responsibility
over it, and your constituents don't necessarily hold you
accountable to it, and so we need to somehow break that
feedback loop so that the opposite is true, that your
constituents are expecting this from you, and they are holding
you to account for it.
And I think that Dr. Bridgeman is correct, that one way to
do so would be for a funding cutoff, which would create that
kind of required action.
And I think that this point about institutional expertise
is correct. I have seen this happen in the executive branch. I
have seen it happen in the courts, where there was an area--
where they had not previously had expertise. I remember, just
to bring back the Guantanamo cases again, when the court
started taking up those cases, there was a sense that this was
not their expertise, they didn't know what they were doing, and
Congress should have given them rules and even, why do we have
to do this?
And, yet, over the first few years, they built up extreme
expertise in this area simply by doing it. And I have seen this
inside the executive branch as well, and I have total
confidence that this would happen in Congress as well.
Mr. Cole. Thank you.
Let me go to you, Dr. Bellinger. And let me just preface my
remark or my question with this remark. I agree very much with
the point you made earlier that Congress doesn't need to be
involved in every decision.
For instance, I would not--I was not critical when
President Biden made a decision he needed to make a strike in
Iraq recently. That was clearly a one-off kind of thing, a
quick response, I think very appropriately done under his
authority. I know some of my colleagues, frankly, on both sides
of the aisle, would disagree with that. But I see that as kind
of routine exercise of executive authority very different than
something like the deployment against ISIS in the Middle East
and something, you know, that is obviously different than the
decision to go into Iraq where you really had--and, to be fair,
we did have a congressional vote on that.
But, anyway, your thoughts on how we bolster congressional
will to actually use this authority that the Constitution gives
us and hold ourselves responsible.
Mr. Bellinger. So a couple of things.
One, actually, I would start small but realistically this
year with something that I really do think could be done. I
think that there is will in both Houses to repeal some of these
old AUMFs, like the 2002 AUMF. You know, we might as well get
rid of the 1991 AUMF as well. But, you know, the 2002 AUMF in
particular, you know, should really not have been relied on as
the use--as the authority to take a strike against Qasem
Soleimani.
And I think, you know, I have heard from Republicans and
Democrats that, you know, I think that is something you all
really could start with this year and get that done. Then it
gets harder.
Going to the other end of the spectrum, with the War Powers
Resolution, you know, this will take some time to work one's
way through it. I really do urge you all to look closely at the
findings and the draft statute from the National War Powers
Commission. They did a lot of testimony--Jim Baker, Warren
Christopher, Brent Scowcroft, these are very smart people, and
they really took into account both the law and the politics of
it.
And the draft that they came up with ended these, you know,
60-day cutoffs and had a consultation requirement that they
thought was realistic. And then--and you will have to tell me
whether you think this works inside the House and the Senate,
but required in the case of any significant use of force, the
House and the Senate to vote within 30 days authorizing that
use of force, so forcing each House to have a vote.
And, if they voted it up, then the use of force was
authorized. If they didn't vote it up, then there would be a
requirement for--that any Member could put forward to vote it
down. Now, that would not end the use of force, but it would
put Congress immediately on the record one way or the other. So
I thought the National War Powers Commission struck the
appropriate balance.
I don't disagree academically with things like a funding
cutoff, but I just honestly--I don't think that is going to
happen. I think Congress could not come to agree on those, and
I think it would be vetoed by a President of either party.
Neither a Republican nor a Democratic President is going to
vote in favor of a law that says that you can cut off my
authority to use force.
So I guess my recommendation to you today is to be
realistic about taking back a congressional power. I agree with
the things that both you and the chairman have said about what
has happened, but I don't think Congress can claw back all the
power that has been ceded to Presidents over the last 30 or 40
years.
Mr. Cole. Well, that is a very thoughtful answer, and, to
your point, I remember when the majority flipped in 2007, 2006,
but effectively 2007. There certainly weren't the votes to
defund the effort in Iraq even though power had changed because
the President would have vetoed that, and it would have been
sustained, and everybody in both Houses knew it. We went to a
big exercise, a big debate where everybody spent 5 minutes on
the floor saying where they stood, but effectively there was no
ability to end that conflict at that point without Presidential
consent.
But, with that, Mr. Chairman, I want to yield back to you.
But, again, I want to thank you very much for this hearing. I
want to thank our witnesses, and I particularly want to work
with you as we go so that we actually do something
legislatively, and certainly these smaller steps, I think, are
very much within reason. Maybe something more robust as well.
As you said, we have an unusual opening in that we have an
administration that actually wants to work with us rather than
work against Congress as an institution in doing this and doing
it the right way. And shame on us if we miss the opportunity to
actually, you know, reclaim our authority when we actually have
an administration that wants to help us get that done so we get
a better balance than we have had in the last generation.
With that, I yield back to my friend.
The Chairman. Well, thank you. I thank the gentleman, and I
look forward to working with him as we try to figure out how
best to move forward here.
At this time, I would ask unanimous consent to add a
letter, signed by 20 nonprofit organizations from across the
political spectrum, supporting our hearing today and the effort
to reform the War Powers Resolution.
The letter says, in part, that the undersigned
organizations are calling on Congress to restore the balance of
national security powers, including war powers, between the
legislative and executive branches of government. We are
committed to working with you to build on the momentum created
by this hearing and to pursuing the reforms we hope will
follow.
And so, without objection, I will put that in the record.
[The information follows:]
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
The Chairman. I am now happy to yield to Mrs. Torres.
Mrs. Torres. Thank you, Mr. Chairman. I don't want to take,
you know, a lot of time. Just a short statement.
I want to associate myself with your comments and the
comments of the ranking member. I think they are very
appropriate during this time.
And I want to take an opportunity also to thank our
esteemed panel that is with us today helping to guide this
conversation.
I hate to be the skunk in this party, you know, but I am
very concerned as to where the politics of, you know, this
Congress is currently. If we cannot even, you know, agree on
certifying a national election that had already been certified
by, you know, all of our States, I am not sure, you know, where
we could be--if there could be an agreement moving forward.
I appreciate the idea of baby steps to get us, you know,
back to working together on national security issues. Maybe
that is a way to get us, you know, to a, you know, more
nonpartisan place. But, you know, from where I stand, weighing
in what, you know, I have been experiencing, you know, in this
Congress, just this year, I think it is going to be a very,
very difficult place, you know, to work on recalling the
authority of Congress.
More than anything, I would love to have, you know, a way
to be able to be more transparent and accountable to my
constituents when they come to me after a loss of, you know, a
son or a daughter that has been serving our country abroad. How
do I, you know, be more--how can I be more transparent and
accountable when we are spending, you know, billions and
billions and trillions of dollars in funding, you know, wars
that have just gone on, you know, for much too long?
You know, those are some real concerns that I have as a
Member of Congress, the inability to be able to share some of
that with my constituents.
I am also concerned that many of our staffs do not have the
proper certifications to be able to get just basic information
on these wars, on these issues moving forward.
So those are just some of my concerns. I want to turn it
back over to the chairman. I know that we have spent a lot of
time on this already, and I just hope that, you know, we will
continue this conversation and that we are mindful of where we
are politically, the reality--you know, the dark reality of
that as we move forward.
But thank you again for this hearing, and I yield back.
The Chairman. Thank you.
Dr. Burgess.
Dr. Burgess. Thank you, Chairman. Thank you to you and Mr.
Cole for holding this hearing. I know we have had a number of
discussions about this over the years with both parties in
power.
Mr. Bellinger, because we have thought through this in the
past, and the question always comes up, I mean, as we are now
on the--I guess the 20th anniversary of the 2001 authorization,
and basically still in effect. Is a sunset on an AUMF a good
idea? And, if it is, how do you avoid having that sunset date
not just be the--basically the battle plan of your adversaries?
Mr. Bellinger. Yeah, it is a great question that I have
grappled with. And I have to say candidly, Dr. Burgess, that I
am--my own position has moved on this. As a purely executive
branch lawyer and a lawyer sort of for the military and the
President, I would rather not have a sunset in that, you know,
what the President wants to say, I have only got authority for
a year or 2 years or 3 years, and, you know, what is going to
happen after that?
And what sort of a signal does that send to the other side
that, well, we are only in this for a couple of years, or what
does that--what does that send to our military that, well,
Congress is in only for a penny but not for a pound?
You know, as I said, I was involved in the drafting of the
2001 AUMF. You know, the World Trade Center and the Pentagon
were still smoldering at the time it was being drafted. You
know, we would not have accepted an AUMF at the time if
Congress had said, ``Well, we are going to give you a year's
worth of authority, and then we will see how it goes.''
So that is kind of my general position, but 20 years later
now, seeing just how much the 2001 AUMF has been stretched and
how difficult it is--and I appreciate the difficult position
you all are in--to vote on something that might go on for
another 20 years, you know, what is past is prologue, I could
come to that compromise and say, look, if the price of a new,
revised AUMF is a sunset, you know, let's maybe do it for 3
years or 5 years, then with some sort of expedited procedure,
though, that would require Congress to rapidly act on it.
So is a sunset a great idea? You know, no. But I don't do
politics the way you all do politics, but I understand that,
you know, it is difficult for you to vote on a new AUMF after
the last one has gone on for 20 years.
So, if I were in the President's shoes, would I recommend
that he agree to a sunset for, you know, 3 to 5 more years on a
new AUMF? Yes, I would do that.
Dr. Burgess. So, you know, it is interesting. On the entire
Rules Committee, I guess the--Chairman McGovern and Alcee
Hastings were the only two Members of Congress who were here
when the two AUMFs that we currently have now were voted on.
Mr. Cole and I came in the following year.
So most of us in Congress have never--have never--voted on
an AUMF and really have not had to wrestle with what the
implications were before casting that vote. And I have felt
over the years that it would be useful that, from time to time,
we would revisit our commitment. But I also spent some time
researching the conclusion of the Vietnam War and the Cooper-
Church Amendment and the efforts to suspend funding during the
Nixon administration for the Vietnam War.
And, although, obviously, I was not in Congress at that
time, when I came to Congress, we had a colleague, Ron Simmons
from Connecticut, who had served in Vietnam, and I will never
forget his poignant speech that he gave on the House floor when
consideration was being made for military cuts. And he
described how, as a young soldier in the field in Vietnam, his
visceral and continued hatred for the United States Congress
for sending him there and then cutting him off.
And you can just imagine that that is multiplied many, many
times by the men and women that we have asked to go into harm's
way on our behalf. So it is a lesson I have never forgotten.
And, although I do think that Members who have never had to
vote on an AUMF should from time to time need to revisit that
before it is continued, I also am sensitive to the fact that
the down-range folks are really very much the ones we put in
harm's way, and they are the ones who are going to be so
desperately affected by what might be a perfectly arbitrary or
academic funding lapse.
And, Mr. Bellinger, I don't know if you had any thoughts on
that.
Mr. Bellinger. I will simply say I agree with the points
that you have made on both sides. I mean--and, as I say, in
general, I don't think it sends a good signal to the troops to
say, you know, we are only going to extend for 3 more years. On
the other hand, the 2001 AUMF has gotten so old and stretched
and really doesn't apply so much to modern terrorist groups
that, you know, if that is what it takes to get a new 3-year
authorization--I think the only thing I would add on and you
all have--are better at the procedure than I am--is to
guarantee that, if there is a--say, a 3-year sunset or a 5-year
sunset, that there would then be a rapid process to look at it
again so that there is essentially a safety net.
Dr. Burgess. Yeah. And I also appreciate the fact you have
used the word ``flexibility'' several times this morning. And I
think the term also came up a variety of purposes. When we look
at perhaps future activities in the Authorization for Use of
Military Force, do you think we are flexible enough to
incorporate cyber attacks into those AUMFs?
Mr. Bellinger. Oh, boy. That is a tough one. You know,
certainly against the terrorist groups that committed the 9/11
attacks or people who were associated or affiliated with them,
yes. If we--you know, there is authority, which Congress has
granted for us to, you know, take down a al-Qaida cyber
infrastructure, or modern groups associated with them, but it
is not--the 2001 AUMF, while very, very broad--many countries,
any kind of use of force, no sunset--it is still tied to the
nations, individuals, or groups that committed or are
responsible for the 9/11 attack. So it is not general cyber
authority.
So I think to have a broader AUMF that gave the President
broader authority to use cyber against other targets, that
would be very, very difficult to do. That, I would say probably
best left inherent to the President's Article II authorities.
Dr. Burgess. And not as part of Congress then only having
oversight after the fact and--
Mr. Bellinger. Oh, well, certainly a consultation. I am
very much in favor of consultation. And, again, back to my
recommendation to look at the National War Powers Commission
report, which was all about consultation before the fact,
during the fact, and afterwards, you know, I do think that, if
the executive were to be planning some significant cyber
attack, that they ought to be consulting with Congress.
Dr. Burgess. Yeah. Of course, the big worry is, well, the
greatest risk going forward may be a cyber risk, and I don't
feel that we are completely prepared to handle that if and when
it does occur.
But I thank everyone for being part of this discussion
today.
And, Mr. Chairman, Ranking Member Cole, thank you for
bringing it up, and I am going to yield back in the interest of
time.
The Chairman. Thank you. I don't know. Was Professor
Ingber--were you trying to get our attention, or----
Prof. Ingber. Yes. I just wanted to respond to that.
I really agree with Mr. Bellinger that we need to think
about this question of sunsets in terms of not just the power
that you are authorizing the President to use right now but
also how these statutes could be read 20 years from now.
And so I just wanted to clarify--in particular to
Representative Burgess' concerns--that an AUMF sunset is not a
sunset for the United States in using force. It is a sunset for
the executive branch's use of force before returning to
Congress.
There is nothing stopping the President from continuing to
engage Congress. There is nothing saying the President should
just wait until the end of that 2-year sunset and then go back
to Congress and leave a gap in the conflict. This is an
incentive for the President to be continuously engaging
Congress and to work with Congress. And, if Congress and the
President together foresee that that conflict is not going to
be over, that is an opportunity for them to engage prior to the
end of that sunset.
This is not about the United States' use of force in any
particular conflict. It is about who inside the United States
is making these decisions and whether or not there is a role
for Congress in doing so.
The Chairman. Dr. Bridgeman?
Dr. Bridgeman. Yeah. Just really briefly, one quick point
that I think might be helpful also to keep in mind on this
sunset issue is that, with respect to the signal that we are
sending to servicemembers, I think one other way to look at it,
which is an alternative view, is that, if you have the courage
to fight, we have the courage to vote, and we are going to come
in behind you and support you. And we are going to show every 2
years, every 3 years, that we believe you should still be
there, that we are going to authorize you to be there, and
appropriate for you to be there, and provide what you need both
when you are deployed and when you come home. So that is the
other way that I would think about that.
And, very briefly with respect to cyber, I think it could
be helpful to think about it in two different ways. One is,
when you are authorizing a use of force, you generally would
think about authorizing force against particular enemies but
not choosing the means by which you fight those enemies. At
least that has been the case since the 1700s when Congress did
used to actually say you can only fight this much war.
Now, generally, Congress says you can fight within the law
of armed conflict as much as you need, and that can include
cyber weapons. That can include whatever means are appropriate
that the Commander in Chief feels need to be used, so long as
they are within the limits of the law of armed conflict.
The separate question, though, is whether cyber needs to be
taken into account in war powers reform, and that is something
that I think has been tricky as the executive branch has
interpreted hostilities so narrowly in that context that a good
range of cyber attacks wouldn't qualify as hostilities.
So something that I encourage you to keep in mind when you
are looking at a new definition of hostilities in the war
powers reform context is specifying that hostilities can
include, you know, intermittent engagements, engagements that
are low intensity, and engagements that are using force from
remote weapons systems like cyber weapons, or like drones. And
I think it is important to keep that at the forefront when you
are thinking about the definition of hostilities.
The Chairman. Thank you very much.
And I want to say for the record, even though Dr. Burgess
pointed out that I was, like, one of the few people that was
here when the Authorizations for the Use of Military Force were
voted on, that does not mean I am the oldest person on this
committee.
Dr. Burgess. No, not meaning to infer that at all, Mr.
Chairman.
The Chairman. Okay. And I just want to say that, you know,
I voted for the use of military force in Afghanistan after 9/
11. I thought--way back when, I thought it was the appropriate
thing to do and to respond--to go after those who were
responsible for what happened in New York and at the Pentagon
and in Pennsylvania.
But I will tell you, to be very honest with you, I look
back--as I look back on that vote now, I am not sure I would do
it again because I never thought that that could be twisted and
interpreted in so many different ways and, quite frankly, that
our mission in Afghanistan could change so dramatically over a
period of time without coming back to Congress and getting--and
having a debate and having, you know, Congress vote on it.
I voted against the use--Authorization for Use of Military
Force in Iraq, in part because, you know, I was afraid where it
would lead.
But let me just say this. I do think that it is--that there
are cases where the United States can stumble into wars that
are mistaken wars, that are the wrong wars, and we need to have
a mechanism to be able to correct it if that is the case.
And I agree with Dr. Bridgeman. You know, just because you
start a war, it may be the wrong war, but I can't think of
anything more offensive in terms of respecting our troops than
to keep them in a war that is mistaken. And so, you know, I
remember I visited Afghanistan a couple years ago, and I was
visiting with some troops from Massachusetts, and I remember a
very candid conversation with one of our men who is deployed
over there, who said, ``Do you people in Congress even know
what the hell is going on over here? I mean, when is the last
time you debated what our policy is here? I mean, do you know
what the reality is here?''
And, you know, it occurred to me that his frustration was
the fact that we do very little oversight and debate on a
conflict that continues to this day. And a lot of our troops--
you listen to our troops. They have some very strong opinions
about whether or not we should remain there, or whether we
should come home.
But it seems to me, if, you know, they have the courage to
go into our Armed Forces and to be deployed in harm's way, we
ought to have the courage to be able to debate these issues.
And I go back to--you know, and Mr. Cole alluded to this as
well. I mean, part of this problem is the executive branch
wanting to take as much power as it can possibly get, to have
as much control over these matters as possible. Part of the
problem is us.
You know, the fact that there are people on both sides of
the aisle who would like nothing more than to avoid these
discussions and these debates and these votes because when you
vote, you are held accountable. And so, you know, there is this
what I call moral cowardice that exists and has existed for
some time where we have tried to dodge these very difficult
issues, but hopefully we are moving beyond that.
And, at this point, I want to yield to Mr. Raskin.
Mr. Raskin. Thank you very much, Mr. Chairman.
And thanks to--well, to you and to the ranking member for
your excellent leadership in framing this discussion.
And thanks to the witnesses who have done such a great job.
I wanted to go back to something that Professor Ingber
started off with when she said that none of us can really
answer the question anymore who we are at war with, or whether
indeed we are in war at all, who are--you know, whether we are
at war and against whom?
And the character of war has clearly changed in a whole
bunch of ways. It has changed in terms of the identity of the
enemies, and, you know, I think most people would probably
answer the question of who are we at war with today with an
abstract noun, like we are at war with terror or we are at war
with terrorism or we are at war with extremism, or something
like that.
And I wonder--let me--just to start off with you, Professor
Ingber, like, to what extent is it a problem to think of war as
being not against particular foreign governments, hostile
governments with whom we are at odds, and instead to think of
war as kind of crusades against problems in the world, whether
it is, you know, terrorism or evil or extremism or, you know,
Islamic fundamentalism or communism or whatever it might be?
Prof. Ingber. I think it is worth going back historically a
little bit to what happened in the immediate aftermath after
2001 after the 9/11 attacks. The immediate instincts of the
executive branch at that time were to go to Congress to ask for
that kind of all-encompassing authority, just the ability to
use force against all future threats on which, as you know,
looked like a war on terrorism writ large.
But Congress, even in the immediate aftermath of 9/11, had
the foresight to refuse that expansive authority to the
President and to tie that authority instead to the specific
attacks of 9/11, which were so extreme, and to using force
against the organizations that had committed those attacks.
So we are not in any legal sense of the term involved in a
war on some kind of ideology or a war on terrorism writ large.
But, nevertheless, when I say that we can't identify the
particular wars that we are involved in, I say that because
there is a lot of legal interpretation that goes on to this day
to answer those questions.
When I say that even executive branch officials might not
necessarily be able to answer that question, it is because they
don't necessarily answer that question until they absolutely
have to answer that question because they are asked it.
So we might be using force against an entity, but not
calling that an armed conflict. We might be using force in a
particular state and not consider ourselves to be at war with
that state based on the way we have interpreted and the
executive branch has interpreted these legal authorities.
But, because we dont have the transparency that comes with
having to present the case to Congress and then work this out
through consultation with Congress through testimony of
executive branch officials through Members of Congress
demanding that the executive both make the case for why we need
to use force in this particular instance and also make the case
for how we are going to get out of this, what we see as the end
game, we, the American people, don't have insight into that
process. And Members of Congress don't have insight into that
process. And even the very executive officials prosecuting
these conflicts don't necessarily have to answer that question
and so wouldn't necessarily have the answer to that question
unless asked to provide it and create it.
Mr. Raskin. Well, that leads me to Mr. Bellinger, who
described in the process several years after the original
Authorization for Use of Military Force tried to determine
whether this group or that group actually came within the
designation, which sounds a little bit like a bureaucratic
delegation of the decision whether or not to go to war or be at
war against a particular group based on your interpretation or
your classification.
There is something to me kind of Orwellian about the idea
that, you know, the executive branch or officials within it can
just decide this is a group that we are going to be at war
against and this one is not based on an interpretation. And I
am wondering, Mr. Bellinger, what you think the solution to
that problem is in order to have Congress really stay in the
driver's seat?
Mr. Bellinger. So let me answer that. And I do want to just
go back to the 2001 period, and I was in the White House in the
whole period from February 2001 to September 2001 as we were
watching these threats gather in Afghanistan. And, of course,
you know, then we had the 9/11 attacks, and there was a whole
9/11 Commission on why didn't President Bush prevent the
attacks from happening? Shouldn't he have attacked al-Qaida in
Afghanistan at the time?
And, you know, that was one reason why the use of force
authority that was sought in 2001, when we really didn't know
who had been responsible for the attacks--we didn't know, in
the time that we asked Congress for the authorization, whether
it was al-Qaida or some other group and whether they were
plotting other attacks.
So the country was reeling, and the President asked for as
broad authority as possible, not against all terrorists, but
against terrorists who were planning attacks against the United
States.
And so, to answer your question, Mr. Raskin, as these
groups then began to splinter and morph and there became, you
know, Al Shabaab and al-Qaida in the Arabian Peninsula and al-
Qaida in Somalia. And they were all talking to each other and
sharing information with each other.
And, as we saw the groups change--and of course this is
what President Obama did 13 years later with respect to ISIS--
now, in that case, I think it was too much of a stretch to say
that ISIS really was the same group as al-Qaida, when they
weren't.
But, for the years in the Bush administration, as we saw
al-Qaida begin to splinter and as they were driven out of
Afghanistan into other countries, it was appropriate to
determine whether these other groups were, in fact, continuing
to plan attacks against the United States.
So let me just end up here with what to do about the 2001
AUMF because I think Congress now has three choices. We can
either muddle through where we have been for the last 20 years
with this, oh, 20-year--and this is, I think, what you are
getting at, Mr. Raskin, is you know, the groups that threaten
us today, which undoubtedly are not the same groups that
committed the 9/11 attacks 20 years ago.
So do we continue to muddle through and keep stretching
this further and further? Do we repeal it altogether, in which
case Congress clearly knows that President Biden will use force
against terrorists that attack us, so do we simply ask
President Biden to rely on his Article II authorities--and that
is not good either, or do we revise and replace the 2001 AUMF
to authorize President Biden to use force against the groups
that threaten us today?
So those are the three choices.
Mr. Raskin. Okay. And, finally, I have got a question for
you, Dr. Bridgeman, which is: You describe a situation where we
have legitimate wars that are declared by Congress. We have
those that have not been declared but are legitimate defensive
actions taken by the President in an emergency type situation.
But then, in the real world today, there is a whole spectrum of
other kinds of military actions or hostilities that are engaged
in and so on. To what extent was that part of the original
constitutional design, that third category of things, which are
neither unilateral executive action under Article II nor
declared wars but just kind of twilight hostilities that are
taking place where, you know, where we send--we bomb somebody
one day, and we call it a day? You know, we engage with
different nations in different ways. I mean, in other words, if
we--I guess what I am getting at is, if we license that third
category, I don't know that we are really going to be able to
deal with this problem.
Dr. Bridgeman. I agree with you. I don't think Congress
should license that third category as a blank check. I don't
think we should see it just as one simple category. Each
threat, and each use of force that is not in response to a
threat, is a very specific factual circumstance that needs to
be taken on its own terms.
When you look back historically, your question started with
the Constitution.
Mr. Raskin. Yes.
Dr. Bridgeman. There weren't really three categories. There
were two categories. There were those immediate and sudden
attacks on the United States that the President had to repel
and potentially also this ability to rescue U.S. nationals
abroad who are in peril.
I think those are considered core. I think those should be
uncontroversial. I think the President needs the authority to
respond in those two instances. And I think, if you look at the
vast majority of instances--and over half of the war powers
reports indicating hostilities that have been filed since its
enactment--have been those kinds of things, have been the
embassy evacuation, the hostage rescue, the response to a
threat.
I think the category that you are talking about, it is
actually two different kinds of things. It is the humanitarian
operations, the stabilization missions, the advise and assist
missions. Those are the things that the Constitution absolutely
envisioned Congress would authorize if we were to engage in
them, if we were to come to the defense of an ally, for
example, when the United States itself was not under threat.
But also the kinds of things that I think you are getting
at are these one-off or low-intensity strikes where we are not
in full-blown war, where Congress hasn't authorized it, and
where the President is using Article II authority, or sometimes
stretching an existing AUMF to claim the authority to act. And
I think that is where we have to change our overall mind set
about whether force is always the appropriate response.
When a group is not directly threatening the United States,
when they don't have the ability to launch an attack that would
harm the United States or our nationals, I think we need to
take a much harder look and say, is the answer to that low-
level threat a low-level use of force, or is the answer to that
low-level threat that we employ the other tools in our toolbox?
[Inaudible] or when necessary in our self-defense, or when
Congress decides that, yes, this is in our vital national
security interests or, yes, this is something that we need to
do with coalition partners because it is imperative to our
foreign policy, it is imperative for humanitarian reasons, et
cetera.
So I think, in a new AUMF, if there is a new AUMF, I think
it should explicitly preclude the use of that authority against
groups or countries that are not named in that AUMF, but I
think it should go one step further as well. I think it should
drop groups that are no longer a threat.
And I think you can do this by requiring, say, every 6
months, that the ODNI along with the Secretaries of Defense and
State certify whether a group still poses a threat to the
United States, to our nationals, to our vital interests. If it
does not, then the group is dropped from the AUMF if that
certification can't be made, for example.
So, even if we do want to cover some of these smaller, you
know, groups where we may not need to be at war for, you know,
a period of time, but we think the President needs the
authority to be able to use force in this kind of lower
intensity or shorter time period, then those could be covered
as long as there is some subsequent mechanism to drop them if
they don't actually threaten us.
So I think what we need to do is keep our eye on, is it a
threat that is actually, you know, vital to our interests? Is
it a threat to the United States? Is it a threat to U.S.
persons? If it is not, I think we need to use some of these
other tools rather than just letting the President use force in
a blank check.
Mr. Raskin. Okay.
And, finally, do you think that acts of cyber war should be
treated in the same way as acts of war or is that a different
level?
Dr. Bridgeman. Absolutely should be treated in the same
way, yes.
I think the key question isn't what means are used in war.
The question is, has there been an attack, or is there an
imminent threat of attack on the United States or our
nationals? It doesn't matter if that threat is by cyber means
or by conventional weapons.
Likewise, in our responses we could be attacked with a
cruise missile and choose to respond with a cyber weapon. There
need be no symmetry in the means that are used, so long as they
are lawful within the law of armed conflict.
So I think we should think about cyber as just another type
of weapon. It is a type of weapon that can be used remotely. It
is a type of weapon that sometimes its use can be concealed.
But those are things that the military deals with. This
actually isn't a new phenomenon. We have had developments in
weapon systems over thousands of years.
So we need to think about it in terms of ensuring that the
executive branch is taking it into account in the definition of
hostilities, as I referenced before.
But I don't think the rules that then apply should be any
different. If anything, I think we have seen states come
together and say we need to treat cyber weapons like weapons
and apply the law of armed conflict when they are used.
Mr. Raskin. Thank you very much.
Mr. Chairman, I yield back.
The Chairman. Thank you very much.
Before I yield to Mr. Reschenthaler, I just want to ask
unanimous consent to add a letter from our colleague,
Representative Barbara Lee, to the record.
[The information follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
The Chairman. The letter says, in part: ``Congress is past
due for a reexamination of our security needs and authorities
to determine whether we are directing our efforts and resources
in ways that truly make Americans more secure. We have a
responsibility to not only reexamine current legal authorities,
but also the efficacy of the military-first approach of our
foreign policy of the last two decades.''
Congresswoman Lee continues by calling for passage of H.R.
256, which would repeal the 2002 AUMF and provides a framework
for Congress to work with President Biden to address the 2001
AUMF.
And as my colleagues know, for decades, for the last two
decades, Congresswoman Lee has been the moral center of issues
of war and peace. And for too long she has been there alone.
And I am proud to stand with her today. And I thank her for her
unyielding commitment to peace.
And I now yield to Mr. Reschenthaler.
Mr. Reschenthaler. Thank you, Mr. Chairman. I appreciate
it. And I appreciate you and Ranking Member Cole holding this
hearing and all the witnesses for their testimony. And, as
always, I would associate my remarks with Ranking Member
Cole's.
With that said, I am coming to this discussion from a
unique vantage point with some of my colleagues. I actually
deployed to Baghdad in 2009 and prosecuted terrorists in the
Central Criminal Court of Iraq. So it was interesting. I was
prosecuting terrorists with an interpreter in the Iraqi court
system.
And one of my big takeaways was that we are naive if we
think that terrorists cannot extend influence to the United
States and our allies in Europe and elsewhere, particularly
Israel.
So with that said, Mr. Bellinger, I just wanted to look at
what you said about the 2001 AUMF. So to paraphrase you--and I
am going to yield to you in just a second--you said really we
have three options.
You said, one, we can just muddle through it and just use
what we have and try to just get by the best we could. Two, we
could just revise it, and then we could fall back to Article II
powers and see where that falls. I think then option three was
we could repeal and replace it.
If we did take that third option, what could we put in the
replacement that would make sure that we can rapidly act to
address terrorist threats, whether it be al-Qaida, ISIS, or
another iteration of an Islamic extremist outfit?
And with that, I will yield to you, Mr. Bellinger.
Mr. Bellinger. Well, fantastic question, and those are the
devil is in the details. And I have now testified, I think,
three times before Senator Tim Kaine in the Senate side and he
has been working very hard to come up with a bipartisan
authorization that is neither too broad nor too narrow. And I
know there has been work in the House as well, but I simply
mention Senator Kaine because he has worked so hard at it.
And the difficulty, to touch on a couple of things that we
have already covered, is if you just try to name particular
groups, then--I see you nodding your head before I have even
said it--they will just change their names, or they morph and
become a new group.
We have looked at that. And I think at one point there were
bills that said, okay, authorization can now be used against
al-Qaida, period, or let's come up with seven different groups.
But things change, groups move, new groups come along that
want to use force against the United States. So it is very
difficult.
In theory, we want to give the President the authority to
use force against the terrorist groups that are actually
planning attacks against the United States. And so how do you--
you could try to name them geographically. You could try to
name them by saying, ``or a group associated, affiliated, or
that is sharing the resources with.'' We really worked hard to
try to come up with those definitions.
And my belief is that it really, if we want to have
Congress on record as authorizing the use of force against the
groups that are threatening us every day, that there needs to
be a new authorization or, otherwise, we are just leaving it up
to the President under his Article II powers.
And I think, as Chairman McGovern said, then if we like
what he did we will support it, and if we don't like what he
did, then we will criticize it later.
But we need to try to come up--and it really is very
difficult to come up with those details, because if it is too
narrow and it is just these three groups, then they will just
change. If you do these two countries, they will move to other
countries.
But I get it. If you try to describe the threat too
broadly, I think this is what Mr. Raskin was getting at, to try
to authorize the use of force against all terrorists who
threaten the United States anywhere, that is obviously too
broad.
Mr. Reschenthaler. Right. I mean, it is absolutely
maddening.
Mr. Bellinger, just to shift gears, we are also, as a
military, we are involved in stabilization, peacekeeping
efforts. I think for a period of the time when I was in Navy,
we said: The U.S. Navy, a force for good. Right? So it is just
beyond killing people and breaking things, as bluntly as some
people describe the military.
So with our peacekeeping stabilization missions around the
world, what can we do to frame future AUMFs? Or do you even
think we need future AUMFs for these kind of missions? Do you
have any thoughts on this particular facet of the military?
Mr. Bellinger. So let me first, one, thank you for your
service. I learned so much from my time in the White House, the
State Department, from all the military services that I worked
with.
I actually come from an Army family, but the Navy bore a
lot of the brunt on the difficult legal issues. I certainly
learned a lot about the laws of war from the Army, Navy, and
Air Force JAG.
So thank you for your personal service and the service of
all of those who I worked with.
So this actually does get to something that I would like to
discuss. As I think Mr. Cole said earlier, agreeing with me,
and I will go back to agreeing with him, I do think the
President does have and needs broader authority under Article
II than just to act to either respond to an imminent threat,
repel an imminent threat, or rescue people.
Presidents have historically, just as you said, really
without that much disagreement, engaged in humanitarian
missions, engaged in rescue missions for other nationals, of
other countries. So President Bush 41 authorized the use of
force in a humanitarian crisis in Somalia; President Clinton in
Haiti.
I think the President as Chief Executive and Commander in
Chief has authority to deploy the Armed Forces in that way, in
the national interest. Congress has historically not wanted to
vote on each one of those missions. I don't think they should.
I mean, just to give one example, a hypothetical, let's
assume a group of British tourists are caught up on a Caribbean
island or somewhere in Africa and are threatened by terrorists.
That doesn't fall within the narrow category of things that my
colleagues have said are only inherent in the President's
power. I don't think Congress, though, is going to want to get
together to have to pass an authorization to use force to
authorize the President to engage in that mission.
So, bottom line, I certainly get that Congress has a very
definite role in authorizing the upper end of war powers,
significant war powers. But I also see that the President of
either party has a pretty broad authority to use force in the
national interest, as long as it is not getting us into a
significant war.
Mr. Reschenthaler. Along the same lines, do you feel the
same way about covert actions? For example, some of these
covert actions could clearly lead to larger engagements, but we
have to take them, and there have been numerous examples of
that.
Do you want to just briefly touch upon your thoughts on
covert actions?
Mr. Bellinger. Well, of course, intelligence covert actions
are governed by separate statutory authorities that are
reported to the Intelligence Committees. And I think you are
probably referring to sort of military special activities
actions.
And, in general, I believe those are going to be reported
under the War Powers Resolution in a classified briefing, if it
is, in fact, troops that are deployed with the significant
likelihood that they are going to get into hostilities.
And you, therefore, put your finger on, frankly, one of the
problems in the War Powers Resolution is the 48-hour reporting
requirement for troops into hostilities.
Now, we are seeing more recently Presidents relying more
and more on classified reports.
Mr. Reschenthaler. Thanks.
And, Chairman McGovern, if you would let me go way
philosophical just for one second, I promise I will wrap it at
this. This question will be for all witnesses.
There was some talk and there was some information from the
Cato Institute about when you are dealing with terrorists to
basically go back to the days where the Brits would almost go
after people that were engaging in crimes on the high seas. For
example, you would issue a letter of marque.
And I know Dr. Ron Paul very early on in the war was saying
that we should just issue letters of marque against individual
terrorists or terrorist cells. I am not saying I agree with
that. I am just saying it for thought.
Have you given any thought of going back to, I hate to say
a letter of marque style, because it is so dated, but something
like that where you actually do an incredibly narrow resolution
at a particular group or even a set of individuals?
Again, super hypothetical, but since we are just dealing
with this and seeing how narrow we can get this, I wanted to
see if the witnesses had any thoughts.
Mr. Bellinger, I will start with you.
And if the other witnesses want to jump in, I will yield to
you.
But, Mr. Bellinger, I will yield.
Mr. Bellinger. I guess I will be very brief and let my
colleagues speak, to just say certainly intelligence agencies
have certain specific authorities that are reported to the
different Intelligence Committees.
The 9/11 Commission, for example, looked at--and this
became declassified at the time--the specific authorities that
had been given to the intelligence agencies in the Clinton
administration to use force against specific al-Qaida members,
including bin Laden, by name. That was prior to 2001. I don't
know what they might be doing now. But there can be specific
intelligence authorities.
Militarily, I think that would be difficult. I mean,
certainly, as you probably know better than I, because you have
served more recently than I, I am sure that there are specific
military orders that allow the use of force against specific
terror suspects. Those are just specific standing orders.
I don't think we would want to ask Congress, though, to get
into the business of authorizing use of force against specific
individuals.
Mr. Reschenthaler. And just to be clear, I am not
advocating for this necessarily. I am just putting it out there
for the discussion.
Dr. Bridgeman, did you want to--I will yield to you.
Dr. Bridgeman. Yeah, I can just pick up on that. And I also
want to start by thanking you for your service. I know that is
a difficult job that you were doing.
So I think the final point that Mr. Bellinger made I would
absolutely agree with.
But if you want to kind of stay philosophical for a minute,
I do think the more specific you can be about individual
groups, the better. And that is something that we have been
talking about, is trying to say terrorism writ large is the
enemy, of course, is untenable. It gets us into the situation
that we are in today when interpretations of statutory
authority get that broad.
But also just to kind of pick up on something you were
mentioning before about stabilization operations and other
kinds of things the Navy does. The Navy is everywhere. We need
the Navy to be in a lot of places.
But I think we need to keep two different categories in
mind. There are the things that the Navy does that are not uses
of force and where we don't expect them to use force. There are
freedom of navigation operations. Or operations where we need
to send a ship off the coast of West Africa to deal with the
Ebola crisis.
There are all kinds of things that Congress doesn't need to
authorize through an authorization of use of force that don't
implicate the war powers but, nevertheless, we rely on our
military to do, and in particular the Navy.
And that is something that I think we can hive off from
this discussion in a certain sense because there will remain
that authority, even if we tighten up what we are doing on the
war powers side.
So when we kind of cross into the war powers side of what
we are doing that implicates using force, there is where I
think the real question is--and the harder question is--about
when we think Congress needs to authorize it versus when the
President should have the authority to go it alone.
And I do think that the vision articulated that the
President can use force when U.S. nationals and U.S. territory
aren't under threat, I do personally think that is too broad.
I think there is a reasonable discussion to be had here,
though. And I think the question for those who think it needs
to be broader than just protecting the United States,
protecting U.S. nationals is, how would you articulate the
limiting principle then? Because I think that is what we have
lost.
Right now we are saying, we see these lawyers, to go back
to the beginning of this hearing, we all see lawyers saying it
has just got to be in the national interest. And other than
that, it has got to just not be a full-out ground invasion
where we have substantial risk of casualties on our side as
well.
That is the only limit right now, and it is not a limit
really when you think about it, right?
So if we are going to go any broader than threats to our
national security, to our territory, to our nationals, we have
to think about what those limiting principles are going to be
in advance.
So I don't think it is enough to just say we need more
authority. I think we need to think about what that actually
means in practice, what it looks like, and what the limits
would be.
Mr. Reschenthaler. Thank you, Dr. Bridgeman.
And, Dr. Ingber, yes, I will yield to you. Thanks.
Prof. Ingber. Yes, thank you so much. I want to reiterate
Dr. Bridgeman's thanks for your service. I also would love to
talk to you about it sometime, because it sounds like you were
doing really fascinating work.
I just wanted to respond to some of the things that you
pointed out, because I think that--and in Mr. Bellinger's
response--sometimes we talk about these decisions as if they
are happening overnight in the executive branch, that there
really is no time for Congress to engage.
And yet what we have seen, for those of us who have been
working on these issues inside the executive branch, who have
historically done so, we see that these issues, these questions
about designating, for example, a new group as falling within a
current authorization to use military force, happen gradually
over time, that is they are the result of endless meetings,
frankly, and endless memoranda and endless running into a SCIF
to look at the latest white paper.
I think in the American public's imagination these are
things that happen instantaneously. But when we are truly
dealing with that kind of an instantaneous threat, the
President does have--I think we all agree that the President
does have some Article II authority to repel such a sudden,
instantaneous threat.
What we are talking about when we talk about designating
new groups under the AUMF is something that is the result of a
slow, deliberative process that is happening inside the
executive branch. And we are just suggesting here that it
happen instead between the branches, in consultation with
Congress.
Mr. Reschenthaler. Thank you, Dr. Ingber. I appreciate it.
And I sincerely just want to thank all the witnesses for
answering the questions in this discussion. As a former Navy
JAG, of course, I could sit here and geek out with you all day.
But for the sake of time, Mr. Chairman, I will yield back.
And, Mr. Chairman, I referenced an article and letters of
marque and also a Cato Institute letter. So I will get those to
you. And if you are okay with it, I would ask for unanimous
consent to enter both of those articles into the record.
The Chairman. Without objection.
[The information follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
The Chairman. And I have another thing to ask unanimous
consent to add into the record, a letter from our colleague,
Representative Peter DeFazio.
[The information follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
The Chairman. As my colleagues may know, Representative
DeFazio first introduced a bill to reform the War Powers
Resolution in his first term in Congress back in 1988. And
since then, our colleague has shown relentless commitment to
making our government live up to its constitutional duties.
On Congress' role, he says this: ``Unfortunately, the blame
for gradual erosion of Congress' war powers does not lie at the
feet of the executive. For decades, Congress itself has shirked
its own constitutional responsibility to declare war and
prevent executive overreach, determining that it is easier to
take credit for unauthorized involvement in popular conflicts
or blame the President for unpopular ones.''
He also says: ``While repeal of these AUMFs is an important
step, it is essential that Congress go further to put in place
necessary checks on the executive authority,'' saying that
there is nothing stopping Congress from passing future open-
ended AUMFs.
And he concludes by saying: ``It is beyond time for
Congress to tackle the heart of the matter and reform the War
Powers Resolution of 1973.''
And I ask unanimous consent to put that in the record.
And I now yield to Ms. Scanlon.
Ms. Scanlon. Thank you, Mr. Chairman. Thank you for holding
this hearing. And thank you for our witnesses.
So I represent southeastern Pennsylvania, which is where
Pennsylvania began, and it was founded by an Irish Quaker named
William Penn. And the region that I represent is still very
heavily influenced by Quakers.
So I have regular delegations of constituents wanting to
know what I am going to do about the AUMF of 2002 and generally
having very strong views on the War Powers Act. So this is
something that I expect my constituents will be very interested
in seeing and talking about in the days ahead.
I think we just circled back to something I wanted to talk
about that the chairman touched on at the start of the hearing,
and that was about the fact that Congress has not just ceded
the war powers generally, but particularly the role that the
executive has taken with respect to determining when those war
powers should be exercised and the fact that we seem to have
defaulted to this 1992 Office of Legal Counsel memo which sets
out whether the President could reasonably determine that a
proposed action serves important national interests. And
administrations of both parties have been criticized for their
reliance on this very broad standard.
So if we could just talk a little bit. We seem to have some
agreement that the standard probably needs to be clarified. But
could each of you address maybe what kind of terms should be in
this standard, maybe starting with Dr. Bridgeman?
Dr. Bridgeman. Sure. Yeah, I think that is, in fact, one of
the key questions, and I am glad you brought us back to it.
I do think there is some daylight between us on this panel
in terms of how broad that authority should be, how to define
it, and what the limitations should be.
But I do think we all agree, as you said, the ``national
interest'' test is no test at all. It is simply a collection of
past executive branch practices. It is sort of, if we have done
it before, we can do it again. And then we, in fact, add new
national interests each time.
And, likewise, I think the idea that the only limiting
principle on the other end is a so-called war in the
constitutional sense, which in the executive branch's view has
required thousands of troops on the ground for a prolonged
period of time, when there are exchanges of fire and a high
risk of casualties on the U.S. side, I don't think that is
anywhere near what the Constitution intended.
And as I have said a few times today, I think that matters,
because it means there is not democratic accountability for
operations short of that threshold.
So I think, and what I have proposed in my written
testimony today, is that Congress should retake the authority
here, because I don't think the executive branch is going to
start issuing opinions limiting itself. I think they are going
to keep building on their past practice. As Professor Ingber
said, they are going to do that in good faith for reasons they
think are important. But I think that is why we need Congress
to assert itself.
And I would say that there is a pretty simple way to phrase
it. I think Congress should make clear that the President may
use force when it is absolutely necessary.
And here is how I would frame the two circumstances. One is
to repel an imminent or sudden attack on the United States. And
that is clearly what the Framers had in mind, the ``sudden
attack'' language you can find in the Constitutional
Convention.
But I would add a second category, which I think many
believe was actually also envisioned by the Founders but which
we have seen as sort of a gloss on that sudden attack category
over the years, which is to protect, evacuate, or rescue U.S.
nationals in situations where there is a direct and immediate
threat to their lives.
I would note that the current War Powers Resolution has
something a little bit similar to this in its current text, but
it is in that ``purpose and policy'' section, up in section 2,
and both the executive branch and courts will look at that as
essentially surplusage, unfortunately.
So, in looking at reforming the War Powers Resolution, I
think that needs to be in an operative paragraph, and I think
it needs to be spelled out clearly.
But I think, regardless of what is there, unfortunately,
the political reality is that the executive branch is going to
try to push the boundaries, unless Congress gives itself teeth
to enforce those boundaries.
And that is where I think you need that funding cutoff and
the shortening of the currently 60-day clock to ensure that
when the President does exceed those boundaries it doesn't drag
us into a full-blown war.
And I think there is always going to be some give and take
between the branches there about where exactly that boundary
is. What does it mean to protect a citizen facing imminent
peril? That is a healthy debate to have.
But right now we are not having that debate at all. Right
now we are not asking, is the United States under threat? We
are not asking, are our nationals under threat? We are asking,
is there a national interest, and is it this kind of huge
ground war? Those are simply the wrong questions.
So I would bring it back into the frame that I have just
been describing. I would give yourself the tools to police that
framing.
And I would say, finally, that the idea that there is a
need to engage in these other types of operations, these
humanitarian operations, these stabilization operations, I
would say Congress used to authorize those kinds of things and
could do so again. But the question is really, does the United
States need to be using force? And I would say sometimes the
answer is going to be yes; other times the answer is going to
be no.
But we can't simply assume that it should be up to the
President to decide every time when our nationals and our
territory are not, in fact, at risk. That is where I am saying
we do need to draw a line in the sand and require Congress to
do its duty.
So that is how I would set out the framework.
Ms. Scanlon. Mr. Bellinger, it looks like you are prepared
to comment. Do you want to add to this discussion?
Mr. Bellinger. I will, although I realize that you are a
distinguished lawyer with a distinguished legal background. So
debating OLC opinions may be a dangerous thing.
But I think this is where there is going to be a
disagreement between me and my two colleagues and friends, is I
do think that the President has a broader authority as Chief
Executive and Commander in Chief and under the Constitution,
Presidents of either party, to deploy forces.
A mere national interest test is obviously too broad. And I
really would be very surprised if Congress were to say that
either if President Biden or if President Obama or if President
Bush were to not have authority to use force on a humanitarian
mission, to help another country, a close ally in distress, or
if its nationals were in distress, whether it be British or
Australian or Canadian or Israelis.
I think the idea that other than having just being able to
defend against an attack, repel an attack, or rescue Americans
is much too narrow a vision of the President's authorities.
And I wouldn't encourage Congress to try to say that. I
mean, if Congress tried to pass something that said those are
the President's only authorities, a President of either party
would veto that.
So that is why I go back to saying let's try to come up
with something that is realistic, that recognizes the
President's authorities up to a certain point, but also puts
Congress in the game.
And once again, I do urge you to go back to look at the
balance that was struck by the National War Powers Commission,
because I thought that was both appropriate legally but also
struck the appropriate political balance.
Ms. Scanlon. Thank you.
Professor Ingber, do you have any suggestions on how we
might narrow the national defense standard as it is being used?
Prof. Ingber. Yes, I do. And I really appreciate the
concerns that John is raising here.
But I also want to caution against the risk here of
slapping a Band-Aid on this issue right now and calling it a
day and then going another 50 years without having another
opportunity to do really substantial war powers reform, and
also the risk of just giving the President constitutional
delegation of authority to do everything that the President is
currently interpreting falls within his Article II authority
and his expansive read of the 2001 and 2020 AUMFs.
So I agree with Dr. Bridgeman's language. I think that
already is a fairly substantial authority for the President.
And I also want to just say that I think something that you
are getting at is that you are not going to be able to prevent
the executive branch from determining where they believe the
line to be. They are going to continue to assert their
constitutional prerogative.
But it is then for Congress to stand up as part of that
interactive dance and say where Congress believes that line
should be, not prophylactically backing up because the
President keeps moving forward but rather pushing back itself.
The result will be in some kind of mix. Recognizing that
the President has some authority to repel sudden attacks means
that there is going to inherently be some discretion for the
President in making those determinations.
But even those determinations that are initially secret,
those events are always going to later emerge. And when they
do, the President is going to have to justify his or her
actions. And it will be better that the President have to
justify what she did on a self-defense basis than to simply be
able to say, well, it was within 60 days.
And so I think that cabining this authority narrowly is
critical at the outset so that you can participate as an equal
player in that dance with the President.
Ms. Scanlon. Thank you.
That kind of gets back to the area I wanted to explore
briefly. I mean, we have talked a lot about having teeth in the
War Powers Resolution or whatever Congress has in order to
force the President to do something or cut off the
administration from doing something.
But as someone who has served during a time when it has
been extremely difficult to get Congress to act, I am
interested in what I think Mr. Bellinger was talking about from
the War Powers Commission, which is some kind of trigger to
force Congress to Act, to force Congress to take charge of
moral courage or whatever and put itself on the record.
So, Mr. Bellinger, do you want to speak to that? How could
we put ourselves in a better situation where at least Congress,
but, at best, both Congress and the administration, have to
engage in this dance to make sure that we are actually acting
as a check and balance?
Mr. Bellinger. Sure. So the war powers, the National War
Powers Commission's recommended legislation--which, by the way,
was introduced in the Senate by both John McCain and Tim Kaine,
ultimately did not go anywhere, but I would urge it to be
picked up again--essentially sort of flipped some of these
presumptions.
So instead of trying to cut off the President's authority
after 60 days, which was just simply not working and,
therefore, made the War Powers Resolution look ineffective,
what it set up was a required consultation process.
And then--and I think this is the key point and you-all
will have to tell me whether this works as a matter of
congressional procedure--within 30 days of any significant use
of force, i.e., not just a narrow rescue mission but something
that has gone on for more than 30 days, each house would be
required to put forward a concurrent resolution that would move
immediately to the floor of each house under your respective
procedures and then would have to be voted on promptly.
So that if the President was using force beyond 30 days,
Congress would have to vote on it. And you would, if you voted
it up, then it would be authorized. If you voted it down, the
President didn't have to stop but he would be--or the Congress
would have been on record as having voted down what he was
doing.
Congress could then go further and then put forward a
concurrent resolution to force him to stop. And if you
successfully voted to force him to stop, then he would have to
veto that. If he vetoed it, he vetoed it. And if Congress felt
so strongly that he ought to stop, then you would override that
veto.
So I thought those procedures actually, if Congress could
engage in that self-discipline to require those votes within 30
days, that is really putting Congress in the game.
Ms. Scanlon. Well, I don't have any doubt that the Rules
Committee of the House would be able to move in such an
expeditious fashion and perform its duty. I may have some
doubts about the Senate.
Dr. Bridgeman, do you have any comments on this proposal?
Dr. Bridgeman. Yeah. Thanks for coming back to me.
I think that there are a couple of things we need to keep
in mind.
One is we ended with a situation, again, where you require
a supermajority in both Chambers to stop the President from
using force, even when it is unauthorized and it exceeds his
Article II authority in the view of the Congress.
And I just think that is fundamentally both unworkable--I
don't think you are going get those supermajorities--but it is
also, again, turning the constitutional design on its head in a
way that matters. It is shielding the President and his uses of
force abroad from democratic accountability.
So I think instead of just saying it wasn't working, let's
look at why it wasn't working and fix those problems.
One of the reasons why the 60-day cutoff wasn't working was
because the executive branch was defining hostilities so
narrowly that it said that clock never even applied, let alone
did it run its course in various important cases.
The other reason it wasn't working is Chadha, as Prof.
Ingber explained to us at the beginning of this hearing, is the
key enforcement mechanism, in which a simple majority of both
houses could terminate a war once begun, was gutted. And that
wasn't working anymore either.
So I think if we want to look at how to fix the actual
problems, we need to look at what those problems actually were.
So we need to define hostilities, which there are plenty of
sound proposals out there to do it. I have offered one. There
are others.
And we need to fix the Chadha problem by providing for that
funds cutoff. And I think the incentives are all to the better
if we shorten that clock. I just heard 30 days recommended. I
think that could be workable, 20, 30, something in that time
range.
But I think the last thing, and you picked up on this in
the beginning with your question for John but it is important,
is how do we make sure Congress votes? So I think those
priority procedures are absolutely imperative to retain.
And there is a version of what John was describing that I
think works well, which is that within that period of the
pendency of the clock--within those 20, 30 days, whatever
number you decide--if the President submits a request for the
authorization to continue using force beyond that time period,
it must come to a vote.
And that is something that can also, you know, the
procedures can be crafted such that it can be amended. So it is
not just an up or down on the President's specific language,
but it could be like was done in the 2001 context where the
President came to the Congress and said, ``This is the
authority I think I need,'' and the Congress said, ``Oh, I need
to tweak it because that is a little too broad. But here you
go. We are going to vote on that.''
So you can require that that vote be taken. You can require
that it be taken within that period of time. And that gives the
President the opportunity to come to you to say this use of
force needs to extend beyond that period.
And Congress gets to decide, are we going to escalate this
into an armed conflict, are we going to provide that authority,
or have we determined that the purpose has been met? Have we
determined that, no, that, in fact, we are at a point where the
situation no longer requires the use of armed force? Or do we
think, as has been the case in some of the engagements
described by members today, do we think it is actually an
unwise use of force?
And shortening that clock is really important to making
sure that we are not already so embroiled that it would be
irresponsible to pull ourselves back. So I think we need to
keep it in mind for that reason as well.
The final thing that I will say about this is the idea of
automaticity of a funding cutoff I think is bothering some
people. You can see that that is difficult. And it has been
suggested that no President would accept it.
I would note that President Nixon did not accept it.
Congress passed it anyway. There is an automatic cutoff from
the War Powers Resolution as enacted. Within 60 days, uses of
force that were not authorized had to be terminated. And it was
a simple majority of both houses that was sufficient to enforce
that.
But even without that vote, if a use of force was not
authorized, it was to be terminated without Congress acting at
all.
I am simply proposing that that needs to be the case again,
but that now, given the state of the law, given Supreme Court
precedent, given the way that we have seen the current war
powers framework failing, we just need to update that
mechanism.
And it may be that you will face political headwinds in
doing so. But this isn't a Republican/Democrat issue. This is
an Article I/Article II issue.
So I would say it may be tricky, but it is something that
Congress has done before. And this is that once in a generation
opportunity to do it again and to make sure that that framework
is shored up in a way that is actually meaningful.
Ms. Scanlon. Thank you.
Professor Ingber, if you have anything to add here kind of
within a focus on how do we make sure that Congress is doing
its job.
Prof. Ingber. Yes. Honestly, I can't really say that better
than Dr. Bridgeman just did.
But I agree that this is a really important question. And
the issue here is about flipping the status quo: making it so
that if Congress cannot act, the President cannot act, rather
than when Congress is unable to act for political reasons the
President just has the space to do whatever the President wants
to do.
The one thing that I want to add to all this is that the
Chadha decision affected inter-branch relationships. The Chadha
decision established that Congress can't make law effectively
without the President, unless they can supersede a Presidential
veto.
But the Chadha decision and the Supreme Court did not
undermine how Congress addresses its own internal procedures.
That is within your control. So it is within your control to
change those procedures in order to establish that these things
can come to a vote.
And I think these are really important questions. These are
important discussions to have with the House and Senate
parliamentarians. As Dr. Bridgeman said, these are not partisan
issues. These are questions about Congress' institutional
prerogatives as a whole and reestablishing a sense of
responsibility for Congress to act.
It may well be that because this is not truly a partisan
issue, this might be one area where Members of Congress can
work together.
Ms. Scanlon. Well, thank you.
And I appreciate all of your insight. It has been really,
really helpful.
As I said, I am interested in how we can get Congress back
in the game because, as Professor Raskin always tells us, there
is a reason why Congress is Article I.
But with that, I would yield back. Thank you.
The Chairman. Thank you.
Mrs. Fischbach.
Mrs. Fischbach. I appreciate the conversation about the
procedures, because I did have some questions about that. And
so if there is anything that any of the witnesses would want to
add about maybe suggestions regarding the procedures and how it
happens.
But I did want to throw this out and to any of the
panelists. Should there be distinctions in the types of
actions?
I know we talked about the length, but potentially it is
certain actions tied to certain lengths of engagement, such as
a single mission or ongoing engagement. I guess maybe to add
that into the discussion about procedures.
And whoever would like to start, I would love to hear some
ideas on that or just thoughts on that.
Mr. Bellinger, you looked like you wanted to--there you go.
Mr. Bellinger. I was going to defer to my academic
colleagues. But I will go ahead and serve something up.
Let me actually just briefly go backwards one step in terms
of saying I think you heard from my opening statement that I am
also very much in favor of war powers reform, both the 2001
AUMF, the 2002 AUMF, and the War Powers Resolution. But I also
go back to something that the chairman said in his first
sentence, is we have an administration and a President who says
he is prepared to support war powers reform, but if Congress
goes too far he is going to veto it.
And so I urge Congress to seize this opportunity to come up
with something that the President is going to support and not
veto.
The War Powers Resolution in 1973 was passed over President
Nixon's veto, but this was in the middle of the impeachment of
Richard Nixon. Congress was not pleased with President Nixon at
the time.
Now is the time, whether you are Republicans or Democrats,
that one can, I think, work with President Biden on realistic
war powers reform. But if you try to clip the President's
powers too much, you are going to get a veto, it is not going
to be overridden, and then the whole exercise will have been
academic.
So I urge you to come up with realistic war powers reform.
I think you are exactly right that certain kinds of force
should be recognized that the President has within his
authorities, but other kinds of force that are certainly going
to get us into a significant war or going to last more than a
certain period of time--and, again, that is what the National
War Powers Commission tried to do, was to recognize and give
the President a fair amount of flexibility, while saying, if it
goes beyond a particular time or beyond a certain amount of
force, that that is when Congress would be required to take a
vote.
So it didn't actually, to your procedural question, it
didn't require Congress to take a vote every time the President
used force beyond a rescue mission. I think they said a use of
force that continued to last beyond 30 days with troops on the
ground somewhere.
So I think you are right that that is an area where one
could try to come up with refinement about what the Congress
considers acceptable and what they want to be able to have a
vote on.
Mrs. Fischbach. Thank you very much.
Professor Ingber.
Prof. Ingber. I think it is going to be very much fact-
dependent. I don't think you necessarily need to include in the
War Powers Resolution itself, should you reform it, language
about whether or not your future AUMFs will carve out
particular activities.
But I do think that each time the President comes to you
and you have this engagement--that may seem unimaginable now,
but would become a natural reality should you pass this reform,
you will be having those conversations. You will be hearing the
President present evidence about what the President's advisers
believe is necessary to prosecute the war.
And then you will be making a determination about whether
or not you think you need to cabin that or whether or not you
trust the President's vision and what you think, if you don't
include a sunset, that is going to look like in 20 years.
So while I think up front it is important to talk about
things like including sunsets for these exact reasons, I think
once you create a scenario where the status quo is the
President coming to Congress in order to have exchanges of
information before entering into these conflicts, you are going
to start to have views about the President's use of those
authorities. And so you may well want to include those kinds of
determinations inside your future AUMFs.
Mrs. Fischbach. Thank you.
And, Dr. Bridgeman, do you have anything to add?
Dr. Bridgeman. Just briefly, I'll add that I am glad you
are focused on the priority procedures, because I think they
matter quite a lot. We have seen this in the Yemen and Iran
votes. Those priority procedures are why those votes took
place.
But I think it is also right to focus, as some of us have
been talking about, on what are the priority procedures that
are going to be in place if the President comes to you asking
for an authorization. How do you make sure that that gets the
vote that it deserves when the President says, no, we need to
be using force for a longer period of time or we need to be
escalating our use of force into a broader conflict?
So I think both of those situations need to be addressed,
both how Congress Members, in the absence of the President
coming to you, can use those priority procedures to cut off a
use of force, but also how you vote to make sure that you can
authorize something that needs to be authorized.
The last thing I will say is in relation to I think your
question picked up on this question of short uses of force or
uses of force over kind of individual, discrete time periods.
So I think you may be referring in part to what within the
executive branch is colloquially called the intermittence
theory of war powers, where I take a strike on Monday and I
call it closed and I report it on Wednesday, and then I take a
strike on Thursday and I call that matter closed and I report
it on Saturday, and then I take a strike on Sunday.
And so is the clock running or not? Are we getting into a
conflict or not? This is something where I think there can be
some reasonable disagreement as to whether each of these
strikes was, in fact, discrete, whether you saw the other ones
coming in advance.
But I think the more kind of faithful way to go about
looking at this question is to consider a series of strikes
against the same enemy in the same theater, or to consider an
escalation that we see developing over time, to consider that
part of one escalation into hostilities or one escalation into
a situation where at least we know with some certainty that
hostilities might be imminent in that kind of escalating
series.
Now, it is Republicans and Democrats who have done this.
President Reagan did this in the tanker wars, and President
Obama did this in the summer of 2014 with what became the
counter-ISIL campaign.
So, again, I think this is an inter-branch issue, not a
political issue. But it is one that I think Congress can
address by saying low-intensity uses of force or intermittent
uses of force are still things that are going to count as
hostilities, or imminent hostilities, for the purposes of us
looking at whether they need to be authorized before they
escalate into a full-blown war.
So I would take those into account, and I think you are
right to be focused on that as well.
Mrs. Fischbach. Well, thank you very much.
And I will say there is a lot to think about with just the
procedures, not all of the others. And so I appreciate that,
that there is going to have to be a lot of discussion regarding
those procedures.
And I appreciate all of your answers.
And I yield back, Mr. Chairman. Thank you.
The Chairman. Thank you.
And I just want to ask unanimous consent to add a letter
from our colleague, Representative Brad Sherman, to the record.
[The information follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
The Chairman. He has worked for more than a decade to use
the power of the purse to strengthen the War Powers Resolution
and to rein in the executive branch's overreach. And in the
letter that he sent to us, he discusses his efforts to make
these restrictions on use of appropriations without prior
authorization for military actions stronger and clearly stated
in the law.
So I would put that into the record.
And I now want to yield to Mr. Morelle.
Mr. Morelle. Thank you, Mr. Chairman, to you and to the
ranking member.
This is one of those--we don't have many instances where we
do original jurisdiction hearings, but I always find them
incredibly important, thoughtful. I appreciate the comments of
all my colleagues. So I just want to thank you, Mr. Chairman
and the ranking member, for putting this together.
And I want to thank the witnesses. This has really been a
very illuminating conversation obviously about a very, very
important topic.
One of the, I guess, I don't know if this is an advantage
or a disadvantage of being near the end, is that a lot of
things that you were going to ask have been asked. But what it
leaves you with is a lot of different things that have been
touched on. So this is going to seem like the lightning round
in a game show. It will be all over the place, and they won't
necessarily come together.
But I do fundamentally agree with the chair, with Mr. Cole,
and my colleagues relative to the balance here between Article
I and Article II, and the need to ensure that the Framers'
intent, as I understand it, to vest this power in the people,
because we were directly elected and we would be the closest to
the people, so we would best represent the views of the public
around the serious question of war.
So I want to just go back to sort of the Framers and just
for historical context, because it is clear that war in the
21st century or conflict in the 21st century is dramatically
different than it would have been in the 18th century.
And so in the colonial era, was it--I don't know how to say
this without sounding like an idiot--but was it necessarily a
declaration of war? Did governments have conflicts with each
other only around declarations? Or was it as it is today, just
minor battles here and there without a formal declaration?
And I don't know who is best to answer that, whoever the
historian in the group is. But just sort of curious as to just
the roots of use of the phrase ``declaration of war'' in the
Constitution which is clearly given to the Congress in Article
I.
Prof. Ingber. Yes. I am happy to start.
I don't think any of us are historians, but we have all
been thinking about these issues for so long we probably all
have some sense of it.
There was a lot of discussion about what ``declare war''
would mean between the Framers when they were crafting the
language for the Constitution. And it was understood to include
attacks. It was essentially the power to bring the country to
war. But there was a lot of discussion about what it would also
not include.
Mr. Morelle. I am sorry, may I interrupt for one second?
Somewhere I read, and I don't know if this is accurate, that
the original draft had the phrase ``make war,'' which was then
changed to ``declare,'' as though it was a more formal thing.
And I am sorry to interrupt you, but that occurred to me. I
should probably have asked it as part of the question.
Prof. Ingber. No, you are absolutely correct. There was a
whole discussion about this. Should it be ``make war,'' should
it be ``declare war,'' and what does this mean?
And this is where we get the understanding, from this
direct conversation that was happening as they were crafting
the language, about the repel sudden attacks authority.
We keep talking about this repel sudden attacks authority,
but that is actually not written into the Constitution.
The Constitution quite explicitly gives Congress a whole
range of powers. And the only thing the Constitution says about
the President's power is that the President is the Commander in
Chief.
So there was some discussion about this, and there was, if
I recall correctly, there was one representative who wanted to
put this in the President's hands. And everyone was up in arms,
like, ``I can't believe someone would suggest this.''
Mr. Morelle. Right. Right.
Prof. Ingber. That ``we have just left the king,'' right?
And so this is where that conversation about the repel
sudden attacks happened. It was understood that by giving this
declare war power to Congress that there would be this limited,
implicit, because it was not explicit, an implicit carve-out
for the President only to be able to act to repel sudden
attacks.
And that was, again, upheld 100 years later by the Supreme
Court in the Prize Cases when the President finds himself at
war in a very different context, in a civil war.
And the Supreme Court said, when there is actually de facto
war on the ground, when the war comes to the President rather
than the President initiating the war, of course the President
is able to respond. And the Supreme Court pointed out: when
there is no time to convene Congress.
Mr. Morelle. Yeah. But even in the colonial era there were
battles without declared wars. Was that part of the
conversation? Like, if the United States engages in conflict
without a declaration? Or just simply silent on it and sort of,
I would imagine, not wanting to get too much into the details,
because you can never have a fact pattern that is always going
to be the case in a future conflict?
Dr. Bridgeman. I can add to that, if helpful.
You can look back very early on at some examples of this.
We start falling out with the French and the French Navy starts
seizing our merchant vessels. And what does the President do?
He comes to Congress and he says, ``I need an authorization.''
And, lo and behold, Congress does not declare war against
France, because that would have imported all of the war
authority--that would have been essentially saying ``you do
whatever you need to do within the law of armed conflict.''
No, the Congress said, well, we are going to authorize this
because we see a need here, but we are going to make it
limited.
And Congress could even say you can seize ships going in
one direction but not the other because that is where the
threat is originating from and we don't need to police it in
the other direction and that would just escalate conflict. We
want to deescalate. We want to give you the authority you need,
but we want to deescalate.
And Congress would make those very fine choices, and the
Supreme Court would uphold Congress' ability to do that.
So there is a long history of Congress really regulating
the extent of armed conflict as well.
Mr. Morelle. I think there were instances, too, of
Jefferson, where the United States Navy commandeered ships,
basically took supplies off and then released them because
there was no declaration of war at the time and he was much
more of a limited view on this.
Mr. Bellinger. Mr. Morelle, could I just have one second on
this? And I realize you asked a historical question.
But I do think the text here is important, which is that
the Framers could have said that Congress has the authority to
authorize the use of force, but they chose the words ``declare
war.'' And in Article II they said the President is the
Commander in Chief of the military.
So I really would argue that even textually--and this is, I
think, supported historically--that Congress clearly has the
authority for a major declaration of war or to authorize
getting into something that is going to be a war. But it is not
a lower level to say that Congress has the authority to tell
the President every time he is going to use force. That is an
Article II power for the President to be Commander in Chief.
So I think those words ``declare war'' are significant.
Mr. Morelle. I did want to get to this, because I think
that really brings me to some questions about present day.
But before I do that, is the declaration necessary for a
state of war to exist between any states?
Prof. Ingber. No.
Dr. Bridgeman. No.
Mr. Bellinger. No.
Mr. Morelle. So Pearl Harbor happened. The Japanese
attacked the United States. We are effectively in war even
without a declaration by Congress, aren't we?
Dr. Bridgeman. Correct.
Mr. Morelle. So tell me then--because I am sure there is
precedent in the Supreme Court and others around when a state
of war exists, it can clearly exist without a congressional
declaration--tell me a little bit about when that state occurs.
Is it then necessary for Congress to affirm that, to
declare it? And how long could that go on? How long could a war
go on without a congressional declaration?
Prof. Ingber. So this is addressing two different bodies of
law. The body of law that most directly deals with when a state
of conflict is occurring is actually international law. Under
international law, a state of armed conflict exists between two
states, whether or not the states recognize it, whenever there
is a use of force between those states.
And so certainly when the Framers were using the concept of
war at the time, they were using that word against a backdrop
understanding of what it meant under international law--These
are people who had copies of Vattel on their bookshelves--and
so that leaves the understanding for a state of armed conflict
between states.
It gets a little bit more complicated when you are talking
about a state of conflict between a state and nonstate actor
because surely not every use of force between a state and any
individual out there who is not themselves a state actor is not
going to a state of armed conflict, right? Normally those
issues are more properly addressed under a criminal justice
framework.
It is only certain kinds of hostilities, prolonged
hostilities with a group that has the capacity to act as a
military actor, has a military hierarchy, can direct orders--We
call those organized armed groups--and it is only really
prolonged hostilities between United States or any state and an
organized armed group that has those capacities that we think
of in war terms.
And so we stopped using declarations of war for a variety
of reasons, in part, just as that the international law of this
concept was shifting. Around the same time, the international
community prohibited war, prohibited the use of aggressive
force to solve, for example, policy disputes. And, therefore,
it became only lawful for states to use force when acting in
self-defense. And around that same time, Congress stopped
declaring wars and started issuing Authorizations to Use
Military Force.
But today, the executive branch interprets an Authorization
to Use Military Force as if it provides all the powers of a
declaration of war unless it is cabined in particular ways.
Mr. Morelle. And so the--I think our last declaration of
war was 1942. Is that right? That is the Congress-led----
Dr. Bridgeman. That was Romania, uh-huh.
Mr. Morelle [continuing]. Against the Axis Powers. So--and
obviously we have been in, you know, conflict, Cold War, Korea,
Vietnam, the Middle East, for much of the 80 years since that
declaration of war.
So the whole question of declaration of war seems--it
really is, then, about the use of force and when Congress shall
be consulted, but it is less about declaration because Article
I doesn't say anything short of declaration of war. It doesn't
give us the power to appropriate. So that is obviously one of
the powers preserved in Article I.
So how do you--like----
Dr. Bridgeman. Yeah.
Mr. Morelle [continuing]. Give me a sense of your
interpretation of that without--so Article I says declaration
of war by the Congress. It gives us powers to appropriate, but
it doesn't say anything about use of military force. To Mr.
Bellinger's point, maybe that is what the Framers ought to have
done. I don't know whether that was a part of the discussion.
But I am just sort of curious--and this may be a
fundamental sort of--too basic a point, but I am just sort of
curious your take on it.
Dr. Bridgeman. I think, if I can comment on this briefly, I
think they very much did understand themselves to have vested
that in Article I, in Congress. It wasn't just the power to
declare war. It was, as you say, the power to raise and support
armies and navies, you know, the power to grant letters of
marque and reprisal, to define and punish offenses against the
law of nations.
They were dealing with essentially the range of threats
that one could envision at the time, right? It was piracy. It
was, you know, your merchant vessels being seized by another
nation's navy that hadn't declared war on you. It was all of
this range of things and there are very much equivalents in the
modern day. They vested all of that in Congress.
The one thing they carved out for the President was the
ability to respond if you are attacked. And that is, I think,
still the place where we should think about drawing the line,
although I agree it needs to be a little bit broader than just
an armed attack on the United States. I do think there is that,
you know, rescuing U.S. nationals in peril.
But, if we go beyond self-defense, if we say the Commander
in Chief has authority beyond that, I do think it is
ahistorical. I don't think it is----
Mr. Morelle. Well, if I----
Ms. Bridgeman. Yeah.
Mr. Morelle. Yeah. And I don't want to put too fine a point
on that. I certainly don't mean to be argumentative, but since
the power still is--just the power to appropriate is still
clearly vested with the Congress, couldn't an argument be made
that if we are sort of imbalanced, the Congress could stop
funding activities overseas that they think violate or that are
not in the public interests around national security, and we
still have the power to do that?
So what--so might someone say, so what is the conflict?
Dr. Bridgeman. The conflict is that the Congress hasn't
been doing that, right? And----
Mr. Morelle. Well, we haven't been appropriating.
Dr. Bridgeman. Well, Congress hasn't been cutting off funds
effectively, and I think one of the reasons that the War Powers
Resolution contained that termination provision was to add some
automaticity to that, and that is why this idea of a funds
cutoff, which isn't new in today's hearing of course, is to put
that power right back in the heartland of the President's core
Article I authority.
So I think the other thing to keep in mind was Congress
didn't used to appropriate for a standing army at all. There
wasn't one.
Mr. Morelle. Right.
Ms. Bridgeman. The way defense budgets work are something
you all are more expert at than I am, but it is very easy for
the military to shift vast sums of money around. So, you know,
trying to authorize or cease authorization through
appropriation has actually become a lot trickier, and that is
why I think, too, a funds cutoff is something that is cleaner,
is less ambiguous, and is going to be more easy to accomplish.
Mr. Morelle. So--and I apologize, Mr. Chair, but I will
close with just sort of this sort of observation. Maybe people
could comment on this.
The one thing that I do worry about is sort of the nature
of war and the nature of conflict now. So interrupting the
supply chain with cyber attacks, it does seem to me that what
we do will be--maybe even in the course of conflict, will be
less around use of force in the traditional sense and more
about getting our power plants to stop operating, or attacking
our commercial and banking system.
And so I wonder, first of all, about whether--what our role
is or what the--how we divide those responsibilities and what
will be perhaps ongoing continued, not intermittent, unless you
decide to take that view, which is sort of an interesting
observation--an intermittent war, but this is instead--and just
depend on it, that the Chinese, the Russians, whoever it is, is
going to employ continuous, ongoing, continued threats to the
United States and without necessarily sending troops because
that is, you know, 20th century, 19th century warfare, but that
warfare we look at will be completely nontraditional. And how
do we sort of reconcile all of that?
And the last thing I would say and I would be happy to have
people comment on, sort of supply chain, use of influence, but
other cyber technology, AI and et cetera.
And then, finally, this--you know, I feel a little bit like
the way we talk about this now is like, you know, a telegram
from me to my mother in college, you know, ``spent too much,
gambled all my tuition money away, stop, send money, stop, love
Joe, stop,'' and then wait for her response, and then we
respond.
And it almost seems, in the modern world, where you have
these ongoing conflicts and ongoing hostilities, that maybe a
different mechanism rather than declare war, appropriate money,
consult 90 days, 60 days, that maybe there ought to be
something more like a cell phone conversation where the
executive and the Pentagon is meeting with a select group of
members--maybe it is the Intelligence Committee. Maybe it is
House Armed Services. But there is dialogue literally every day
about conflicts and hotspots, and then some judgment by that
assigned group to bring it to Congress when appropriate.
You know, again, I don't know how you would work this out.
It just seems the way that we talk about it isn't necessarily
reflective of the world in which we live.
And the final thing I will say is the observation that, if
something can be vetoed by the President requiring two-thirds
to get where the Congress is when we only need a majority to
declare war seems completely upside down, that, if you are
going to use these kinds of congressional stops, they would
have to be almost it won't happen unless there is affirmative
authorization by the Congress because any other way, it just--
it doesn't make any sense, so--and I am not sure if people want
to respond to--not about my spending the tuition money on, you
know, poker, but just the nature of the way we do this and
whether or not we need to have a different kind of conversation
about that balance between the executive and the legislative
branches to help, you know, continue the integrity of Article
I, Article II responsibilities.
Prof. Ingber. I will just briefly weigh in to say that--
that, first of all, I agree with the last point you made
entirely, that you need to reset that balance.
On the question of regular, constant consultations, I do
think that resetting the balance will incentivize those kinds
of regular conversations. So I don't think that the behind the
scenes, one-off calls with a few Members of Congress can
replace congressional Authorization for the Use of Military
Force, but----
Mr. Morelle. Right. Right.
Prof. Ingber [continuing]. I do think that, if Congress is
in the position of having to make those determinations, that is
going to require that there be much more constant, regular
communication at sort of a lower level, with not just Members
of Congress and Secretary of Defense, but also with staff--
between staffers.
And those kinds of conversations, again, we think of the
executive branch as acting with dispatch, but the reality is
the executive branch is also a ``they.'' It is also thousands
and thousands of people, and so they are having these
conversations. This is not something that turns on a dime
either.
And so it is not asking too much to have them expand that
conversation to also engage Congress. And that will happen in
the way you are describing if Congress is in control of the
appropriations in a more sort of specific targeted means of
doing so, of actually having to authorize force rather than
simply stand up and throw itself in front of an already well-
on-its-way war.
The Chairman. Thank you. Any other----
Mr. Bellinger. Just briefly, on the consultation point, I
will simply say--again, I know I have talked a lot about the
National War Powers Commission, but they did spend 2 years sort
of looking at these war powers issues and took a lot of
testimony, and they--as part of the replacement legislation for
the War Powers Resolution, in addition to these procedural
reforms that I talked about earlier, they would create a joint
congressional consultation committee, which would essentially
take the chairs of the key committees and then have essentially
just what you said, Mr. Morelle, constant consultation both
before and during a conflict.
So it wasn't just, you know, a 48-hour report lobbed up to
Congress and then nothing and then 60 days and a sudden cutoff.
I mean, real constant consultation between the executive and
the legislative.
Dr. Bridgeman. If I can comment on this too, briefly, I do
think consultation is vitally important, but I would note that
the--this commission model, it did allow, if I am recalling
correctly, the President to put off those kinds of exchanges
until 3 days after the conflict has commenced if secrecy so
demands. And I think that probably virtually guarantees that
all Presidents are going to say that secrecy demands it, and
you are going to fall back right where we are with after-the-
fact consultation.
So what I am trying to propose in this basket of what I
think are, you know, a low-hanging-fruit basket of reforms, is
that, if there is that backstop of that cutoff and if the 60-
day clock is shortened, that consultation will have to occur
beforehand. The President just sees it coming, and so it is a
given that that has to occur.
But I also think it is important to keep in mind what you
are mentioning about, you know, what does the world look like
today in situations short of the use of force as we know it? So
what we are talking about here in this basket of reforms, you
know, they apply to situations where it looks like there is
going to be a use of force that is imminent or where we are
already in some sort of hostilities. These are ways to bring
Congress into that discussion.
But, when we are talking about all these other situations,
I think you are absolutely right that Congress has to be
involved in understanding the day to day. Committees of
jurisdiction over some of these areas already are and there
have been some reporting requirements that have been required
to put the Congress on notice when you have these kinds of
activities. Some of them lie in the covert action realm, and
the President is indeed supposed to notify Congress before
engaging in covert action. There are some exceptions to that.
There are, you know, additional things that we can do to ensure
that those consultations are more meaningful, again, through
those committees of jurisdiction legislating it.
But, for the purposes of this discussion and for the
purposes of war powers reform, I think the kind of structural
reform that we have talked about incentivizes that consultation
much more than anything else you could write into a statute.
And then also strengthening that reporting once it has
happened. So a President going silent after a 48-hour report
for up to 6 months following it just makes no sense, right?
There needs to be regular reporting of meaningful information,
including access to threat information that has to be, you
know, a regular drumbeat, at least once a week, I would say.
And the executive branch has this information. The
executive branch is discussing this information. All we are
saying is bring Congress into that conversation.
So I think you are right to focus on that and that, if we
look at it in situations short of force, we can see what is
coming ahead, and that is part of your responsibility as well.
The Chairman. Thank you.
Mr. Morelle. I am not sure I see much in the way of low-
hanging fruit pass the Congress in the last couple years, but
who knows. You know, hope springs eternal.
But, Mr. Chairman, thank you so much. I yield back.
The Chairman. Ms. Ross.
Ms. Ross. Thank you, Mr. Chairman, and thank you, Ranking
Member Cole.
This is such an important time, and it is going to be, I
think, a unique moment in history to address an issue that
Congress has not addressed for way, way too long.
As Mr. Morelle said, most of the questions have been asked
and answered ably. My last question actually picks up on the
last point that Mr. Morelle raised about meaningful reporting
and transparency and, you know, setting up a way of doing that,
and then a way of correcting the record.
I mean, it comes to mind that, the last time there was an
authorization of force, it was based on having weapons of mass
destruction that we found out later we didn't--did not exist.
And had that information been correct in the first place, there
might have been a different decision from Congress.
And so I would like you to comment on, you know, Congress
needs to be much more robust in what it--how it exercises its
powers, but Congress can only do what it does with accurate
information, and how we can set up a situation to have more
accurate information and the correction of inaccurate
information as soon as possible? And any comments would be
appreciated.
Dr. Bridgeman. I could start with some data, if that would
be helpful, because I have just had the pleasure and the pain
of looking at every single unclassified 48-hour report ever
filed for the purposes of building this database at NYU's RCLS,
and it is searchable and filterable, and you can look at all
the Presidents since 1973, all the different types of missions
they have reported, and you can click through and look at the
individual reports.
And I will affirm exactly what you are saying, that there
is a boilerplate that is used for two out of the three of the
required categories. So the War Powers Resolution requires
three things: the circumstances necessitating introduction, the
legislative and constitutional authority, and the estimated
scope and duration of the activity.
And, for those latter two, for the legal authority and for
the estimated scope and duration, you can almost see cut and
pastes. There are a couple of versions of that language, and it
is partly because Congress hasn't pushed back and asked for
more, and it is partly because there is an understandable
executive branch practice of only saying so much as you
absolutely need to satisfy a reporting requirement, lest you
set a precedent that more information is revealed.
So I go through it in detail in my written testimony. I
won't bore you with it today. I think there is a whole series
of other kinds of information that Congress should be asking
for in those 48-hour reports that should not be considered too
onerous because the executive branch does have that information
before authorizing an operation.
But, to your point about changes, I think we all recognize
that then going silent after those 48-hour reports is an
unacceptable state of affairs, and I think one of the easiest
ways to get at that is, if you require more meaningful
information on the front end and then you require it to be
updated on a regular basis, to include any change in the
factual situation, any change in the threat reporting, any
change in the information prior--you know, reported to Congress
in prior notifications, then there is that duty on the
executive branch to notify you of any changes, whether they be
by error or mistake, whether they were by omission, but that
duty is then placed on the executive branch to do that updated
reporting.
And so--and that is something that I think you should also
consider adding in the costs because it is something your
constituents care about, I think, something we all care about
that adds up over time that currently is obscured. It is not in
the reporting at all.
So I think there is a couple of easy ways that you can get
more meaningful reporting on the front end and then require it
to be updated regularly once that initial 48-hour report has
come in.
Mr. Bellinger. Can I actually agree and disagree?
The--having signed off on every war powers report for 8
years in the Bush administration--and, Tess, you have been
there, so I am a little surprised you are making that
recommendation--it is a mad scramble to try to get a report
drafted and signed by the President within 48 hours. We are
down often to minutes chasing the President wherever he, she
happens to be to get that 48-hour report signed and approved by
the Defense Department, Justice Department, the State
Department, and up through the White House to the President.
So this is why they are short. So I would not support a
recommendation to try to require a longer 48-hour report, or it
is just never going to get to Congress within 48 hours. You
know, in general, I think we actually ought to do away with the
48-hour reporting, but I would not try to force the President
to put more in the 48-hour report.
That said, the part where I will agree is that Congress
should have the background on a use of force. And, frankly, if
more needs to be done in a classified setting, the better.
The--you know, we don't have to get a lot into the Soleimani
strike right now, but I think that was troublesome to, you
know, people on both sides of the aisle, Republican or
Democratic, when the administration obviously, you know,
shifted position by first saying that there was an imminent
threat, and then, well, maybe there wasn't an imminent threat,
and that, you know, that Soleimani was just a bad guy.
But I do think that it is important, to your point, that
the executive branch, you know, brief as quickly as possible,
and correct things since, you know, all of us who have been in
the executive branch, but also in Congress, you know, the first
reports of information can turn out to be inaccurate, and
executive branch officials may misstate things, and then
information comes in, and it needs to then be corrected.
But I agree with you. There needs to be a regular--and that
is something Congress should insist on. All these other things,
you know, changes in law, cutting off of funding, you know, the
one thing Congress really ought to do is demand that executive
branch officials come up, brief--brief in a closed setting, and
then come up again--you are right--if something needs to be
corrected.
Dr. Bridgeman. Can I just add one clarification to that,
which is that the reports did use to be longer. So, before your
time or mine, John--and I suffered through many of these--they
were--the action was taken on a Friday night, and we had to
report it by a Sunday, and it is never fun.
But, when you look back, it is--in particular, some of the
more controversial uses of force, in the Clinton era, for
example, Bosnia, Kosovo, the reports are much longer, and they
go into much more detail about the factual circumstances, the
threats at issue, what our allies were going to be doing,
whether or not we were going to be acting alone, what the U.N.
Security Council had or hadn't said in the weeks prior.
It is that kind of information that the government already
has at its fingertips that I think is fair to request. But I
hear you on the crunch.
Prof. Ingber. I will just add to all of that, that this
goes back to a discussion we had earlier, that if Congress
takes more responsibility to authorize these actions and
engages more regularly with the President on these issues,
Members of Congress but also congressional staff are going to
build expertise and not just expertise but also a sensibility
about what the evidence that the President is giving to them
means, where the holes are, what is the information they are
not actually getting. It is about knowing the questions to ask
and where to push back.
I think those of us who worked in the executive branch
gained a sort of spidey sense: okay, you are telling me this,
but what is the actual evidence that is underlying that
statement? This individual is a fighter. Okay, but where is the
evidence that you put together that that tells me that that
individual is a fighter, for example. And that is a
sensibility, an expertise that can be built up.
And so I think that some of the questions that should be
included once you have reset the balance so that the status quo
shifts and so that the President is making a case to you, not
just merely sending you off some boilerplate but making a case
to ask you to authorize force, that there is no reason not to
ask questions like, ``what is your plan not just for why you
need to go in, but how you are going to win this war, and what
is your plan for the end game?''
And those are questions that people will feel more
confident asking as your staff builds that expertise. And I
don't think there is any reason not to ask those questions. The
fact that the President may be the Commander in Chief does not
mean that, when you are making the decision at the outset to
authorize force, you shouldn't know how the President is
planning to exercise that Commander in Chief authority.
Ms. Ross. Thank you very much for all of those answers.
Hopefully the Foreign Affairs Committee will ask the same kinds
of question.
And, with that, Mr. Chairman, I yield back.
The Chairman. Well, thank you very much.
But I think we have the better hearing, so I want to state
that for the record. But, before I would yield to Mr. Cole for
any closing remarks he has, and then I will make some closing
remarks, but I do want to thank the staff on both sides, but on
the majority side, Kim Corbin, Caitlin Hodgkins, Allie Neill,
Lori Ismail, Liz Pardue, Cindy Buhl, and Don Sisson. I want to
thank them for all of their help in getting this together.
And, Mr. Cole, I don't know if you want to add closing
thoughts before I close?
Mr. Cole. Yeah. Just quickly, if I may, Mr. Chairman. First
of all, let me start by thanking you again. I think this was a
really important hearing, really productive hearing.
I want to thank all of our witnesses. I thought you were
all extraordinary and very, very helpful to us. And, frankly,
your real-life experience and academic backgrounds has shed a
great deal of insight.
I do think, Mr. Chairman, you made a key point in your
opening remarks when you said that maybe we have caught
lightning in a bottle. I think your eloquent phrasing is
probably right. We have a unique opportunity in front of us, I
know one that you have labored long and hard to create. And a
lot of us have been supportive at different stages along the
way, but I don't think anybody has worked harder than you in
the Congress of the United States to try and get us to this
point.
And I would be remiss not to give a shout-out to the
administration as well, as you did again in your remarks, for
opening this door and saying, hey, this is something we ought
to look at. And I think Mr. Bellinger made a wise and
cautionary warning: Let's not overplay our hand here.
And, Mr. Bellinger, for your benefit, I think it is very
unlikely a Democratic House and a Democratic Senate, or an
evenly divided Senate, however you want to look at it, is
likely to send a Democratic President something he is not
willing to sign. So I don't think that is a serious danger, but
I do take your bigger point, which is we need to work with the
executive branch in this.
But it is refreshing to see an executive branch--and I have
seen them in both parties--that actually wants to work to
restore the balance of power that has been lost here. And that
is to the President's credit, and may well be because, as I my
friend, the chairman, suggested, he has been on the other side
wrestling with these questions as a Member of the United States
Senate for many years.
But, for whatever reason, it is a unique and fleeting
opportunity, and I think we would really be remiss not to act
on it. And I think we can act on it in a bipartisan way.
You certainly, Mr. Chairman, ticked off a number of areas
where all our witnesses were in agreement at the beginning of
the testimony, such as repealing the 1991 and 2001 AUMFs and--
actually, yeah, two AUMFs, reforming the 2001, looking
seriously at the war power.
There is broad agreement here amongst the people that we
have who are people that, again, have experienced these
problems in real time and I think very broad agreement in the
Congress as well or at least the potential for that right now
and, strangely enough, again, an opportunity to work with as
opposed to against the executive branch to achieve this
outcome. So shame on us if we don't take advantage of this very
unique opportunity.
So, with that, I will just conclude and say I look forward
to working with you on that. This is a matter we have worked on
together in the past, but it is an area where I think you in
particular have shown a great deal of tenacity and distinction
and foresight over many, many years and, I would be remiss not
to say, administrations of both parties. You have been very
consistent in your viewpoint here, and I think that is going to
serve this committee and serve the Congress very well going
forward because I do think you have a unique credibility here
built on your previous actions.
And so, again, thank you to our witnesses.
Thank you to our members. I thought the questions were good
and showed a real effort to get to the heart of the matter and
see if we could find some core principles legislatively that we
could work together on and move something forward. I am sure
the discussion in the Foreign Affairs Committee, while clearly
not as robust and brilliant and as helpful as the one you led,
Mr. Chairman, will be motivated by the same kind of spirit.
So, again, very, very productive hearing, Mr. Chairman, and
thank you for making it.
So thank you to all the staff, again, as you pointed out.
Excellent work on all sides, and so I am hopeful that this can
actually generate some productive legislative activity going
forward.
With that, I yield back to my friend.
The Chairman. Well, I thank my colleague and my friend from
Oklahoma for his kind words, and also, you know, for his
involvement in this hearing. He, too, has cared deeply about
these issues.
And, you know, to the witnesses, I mean, the Rules
Committee, we have to deal with everything, and sometimes
things are contentious. Sometimes it is--you know, we can't
even agree on what to have for lunch.
But, you know, we have come together--we come together on
some really important issues. And, on this issue, I mean, there
is common ground. I mean, you don't have to agree on everything
to agree on something. And, if there is something we agree on,
we ought to move forward.
And so I appreciate Mr. Cole's comments.
I appreciate all the members of the committee for their
questions. You know, one of the blessings and the curses of the
Rules Committee--well, the curse is that we don't have any time
limits, right? I mean, we kind of, you know--but that is also a
blessing sometimes because you get to have substantive
conversations and be able--and are able to flesh out some ideas
that you might not always be able to do under a strict 5-minute
rule. But I really do appreciate all the members' questions
here. I think they were all very thoughtful.
You know, President Teddy Roosevelt once said nothing worth
having comes easy. You know, we have more work to do to find a
path forward to reform the way our government and the way
Congress handles questions of war and peace. I am not saying it
is going to be easy.
But, to my colleagues, I say this: Ensuring that the
American people have a say in the ways in which our Nation goes
into war and exits one, to reestablish communication and
consultation between the Congress and the President on issues
of life and death is certainly worth it.
And I just want to say one final thing. You know, we get
very caught up in policy and procedure and in constitutional
authorities, but these are decisions--I know the witnesses know
this, but these are decisions that have real-world
consequences. The stakes are really life and death, you know,
blood and treasure, not abstractions. They are about whether
and when and for what purpose we will send our uniformed men
and women into harm's way. We will be directing them to
sacrifice their lives. We will be telling their families that
this sacrifice is necessary.
So we need to be sure that how we make these decisions and
who makes these decisions and for how long these decisions will
persist--we need to make sure that that is balanced and clear
and done in a way that it respects, you know, the incredible
men and women who serve our country and also respects the
Constitution.
So I thank everybody for such a serious and informative
discussion, and we will certainly be in touch with you as we
move forward on this.
So, with that, the Rules Committee is adjourned.
[Whereupon, at 2:34 p.m., the committee was adjourned.]
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