[Senate Hearing 117-256]
[From the U.S. Government Publishing Office]
S. Hrg. 117-256
AUTHORIZATIONS OF USE OF FORCE: ADMINISTRATION
PERSPECTIVES
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
__________
AUGUST 3, 2021
__________
Printed for the use of the Committee on Foreign Relations
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via http://www.govinfo.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
47-552 PDF WASHINGTON : 2022
COMMITTEE ON FOREIGN RELATIONS
ROBERT MENENDEZ, New Jersey, Chairman
BENJAMIN L. CARDIN, Maryland JAMES E. RISCH, Idaho
JEANNE SHAHEEN, New Hampshire MARCO RUBIO, Florida
CHRISTOPHER A. COONS, Delaware RON JOHNSON, Wisconsin
CHRISTOPHER MURPHY, Connecticut MITT ROMNEY, Utah
TIM KAINE, Virginia ROB PORTMAN, Ohio
EDWARD J. MARKEY, Massachusetts RAND PAUL, Kentucky
JEFF MERKLEY, Oregon TODD YOUNG, Indiana
CORY A. BOOKER, New Jersey JOHN BARRASSO, Wyoming
BRIAN SCHATZ, Hawaii TED CRUZ, Texas
CHRIS VAN HOLLEN, Maryland MIKE ROUNDS, South Dakota
BILL HAGERTY, Tennessee
Jessica Lewis, Staff Director
Christopher M. Socha, Republican Staff Director
John Dutton, Chief Clerk
(ii)
C O N T E N T S
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Page
Menendez, Hon. Robert, U.S. Senator From New Jersey.............. 1
Risch, Hon. James E., U.S. Senator From Idaho.................... 3
Sherman, Hon. Wendy, Deputy Secretary of State, U.S. Department
of State, Washington, DC....................................... 5
Prepared Statement........................................... 7
Visek, Richard, Acting Legal Adviser, U.S. Department of State,
Washington, DC................................................. 8
Prepared Statement........................................... 9
Krass, Hon. Caroline, General Counsel, Department of Defense,
Washington, DC................................................. 11
Additional Material Submitted for the Record
Responses of Richard Visek to Questions Submitted by Senator
Chris Van Hollen............................................... 46
Responses of Caroline Krass to Questions Submitted by Senator
Chris Van Hollen............................................... 46
Responses of Wendy Sherman to Questions Submitted by Senator Mitt
Romney......................................................... 47
(iii)
AUTHORIZATIONS OF USE OF FORCE:
ADMINISTRATION PERSPECTIVES
----------
TUESDAY, AUGUST 3, 2021
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The committee met, pursuant to notice, at 10:12 a.m. in
room SD-106, Hon. Robert Menendez, chairman of the committee,
presiding.
Present: Senators Menendez [presiding], Cardin, Shaheen,
Coons, Murphy, Kaine, Markey, Merkley, Booker, Schatz, Van
Hollen, Risch, Romney, Paul, Young, Cruz, Rounds, and Hagerty.
OPENING STATEMENT OF HON. ROBERT MENENDEZ,
U.S. SENATOR FROM NEW JERSEY
The Chairman. This hearing of the Senate Foreign Relations
Committee will come to order.
Let me start by thanking our esteemed witnesses for
appearing before us today to help the committee consider the
perennial challenge of ensuring an appropriate balance between
Congress and the executive branch concerning the use of
military force.
I am holding this hearing at the specific requests of
Senator Romney and other Republican Senate Foreign Relations
Committee members who requested it prior to a vote on the 2002
AUMF repeal, as well as to jumpstart the broader discussion on
the 2001 AUMF and other issues surrounding the use of force.
I believe that this subject, which is ultimately on whether
to send our sons and daughters into conflict, is one of the
most solemn votes that any member can take.
So with that in mind, let me start with the repeal of both
the 1991 and 2002 authorizations. Let us be very clear about
what we are talking about.
The 1991 authorization resolution authorizes the United
States Armed Forces to take action to ensure Iraq's compliance
with U.N. Security Council resolutions related to Saddam
Hussein's invasion of Kuwait.
The 2002 AUMF authorizes the Armed Forces to take action
against the continuing threat posed by Iraq, which at the time
was still under the rule of Saddam Hussein, and the then
administration claim was developing weapons of mass
destruction.
We know now that that was simply not true. Regardless,
these authorizations simply do not reflect reality, which is
that any U.S. troops currently in Iraq are there at the
invitation of the Iraqi Government.
Indeed, the President just welcomed Prime Minister al-
Kadhimi to the White House for a strategic dialogue. It simply
makes no sense to keep an authorization against Iraq.
The Biden administration has made clear through a formal
statement of administration policy that it is not relying on
the 2002 AUMF for ongoing operations or detention authority,
logically, as the terms of the AUMF applied only to threats
emanating from Saddam Hussein's Iraq.
In my view, it is irresponsible to keep this outdated
authority on the books to address future hypothetical threats
for which it was never intended.
Now, some have made the argument that repealing this
authorization would somehow show weakness or lack of resolve,
particularly against Iran as it continues to attack our forces
in Iraq.
However, I see little logic in this argument. Iranian-
backed militias derive much of their support from the false
narrative that the United States is still an occupying power of
Iraq. Repealing the 2002 AUMF would clearly show that we are
there in support of the sovereign Iraqi Government.
Let us be very clear. Repealed or not, the 2002 AUMF does
not authorize any military activity against Iran.
Now, that is not to say that the United States will not
show resolve against Iran as it continues to threaten our
people or our national security interests, but the 2002 AUMF
provides no authority to do that. Beyond the 2002 AUMF, I would
like to use this hearing to start a serious discussion on
repealing and replacing the 2001 AUMF, another 20-year-old
authorization.
I absolutely believe we must provide this and any executive
with the appropriate authority for conducting counterterrorism
operations, but such an authorization must adequately reflect
the true nature of today's threats and challenges.
As one who did vote in support of the 2000 AUMF 20 years
ago, I can safely say we never could have imagined it being
used as a justification for airstrikes in Somalia or against
groups that did not even exist at the time.
Now, I appreciate that the Biden administration and
National Security Adviser Sullivan have been engaging with the
chair and with interested members on the question of what a
2001 AUMF repeal and replacement would be, and we look forward
to having those continuing discussions on the path to being
able to achieve that.
Of course, the President has authority under Article II of
the Constitution to repel attacks against the United States and
against our personnel, but we must have an honest conversation
about the scope of this authority and the power of Congress
under Article I of the Constitution to declare war.
The Office of Legal Counsel at the Department of Justice
has advanced a theory that congressional approval is required
only for actions that rise to the level of war based on the
conflict's, ``anticipated scope, nature, and duration,'' and if
the action serves, ``important national interests.''
This interpretation is a self-serving, one-way ratchet.
Over time, it has enabled the executive branch to justify
large-scale uses of military force without any congressional
involvement, stretching the Constitution in ways that would be
unrecognizable to the framers. A rebalancing is in order.
Finally, over the past decade, the U.S. Government has
advanced a more aggressive strategy in cyberspace. We are all
aware of recent cyber-attacks and significant cyber campaigns
launched by state and non-state entities in Russia, China,
North Korea, and Iran.
President Biden has made it clear that the United States
will use offensive cyber capabilities when warranted and will
accelerate U.S. operations to disrupt and to ``defend forward''
against foreign cyber operations.
The increasing use of cyber operations implicate a host of
AUMF and war power issues. I firmly believe that the committee,
and I will be able--I will be pursuing this, needs to be more
assertive in our role as it relates to the use of force in the
cyber domain, and that the executive branch needs to be more
responsive to our requests in this area.
So there is a lot to address, but I do believe that our
goal in repealing these two authorizations that were for a time
and place and against a country with a leader that no longer
exists and for which there is no authority to deal with any
challenges with Iran, and which actually serves as fuel to
militias to say that we are an occupying power, needs to be
repealed, and I intend to move forward at a business committee
meeting to do exactly that.
With that, let me recognize the distinguished ranking
member, Senator Risch.
STATEMENT OF HON. JAMES E. RISCH,
U.S. SENATOR FROM IDAHO
Senator Risch. Well, thank you very much, Mr. Chairman, and
thank you for holding the hearing. Thank you for our witnesses
for being here.
It is interesting to note, I think, that probably the
objective of everybody on this committee is the same when it
comes to AUMFs.
I have sat through scores of hours, on this committee and
on the Intelligence Committee, both open and closed, to deal
with what is probably one of the most vexing problems that we
face.
Having said that, we all have the same objective. It is
good that we sit down and talk together in a rational basis to
reach a conclusion as to where we go with these things, and I
agree with the chairman that messaging is extremely important.
I think as much as anything, messaging is one of the things
that the AUMF telegraphs to both our friends and our enemies. I
guess I come down on a different side of that.
Having said that, I think when you are talking about
messaging what you have to do is look at not as much your
message as the people who are receiving the message, and I
suspect that the arguments on both sides probably prevail with
some people.
That is, some will read the message one way and some will
read the message the other, and so it is important that we
discuss it. It is important that we resolve that and it is
important that we do not only message, but interpret that
message for the people that are listening to it.
President Biden has directed airstrikes on Iranian-backed
militias in Iraq and Syria twice since February. Both actions
have failed to deter further Iranian aggression.
Within a few days of the U.S. airstrikes in February,
Iranian militias attacked us forces at al-Assad Air Base in
Iraq, attacked Israeli-owned ships in the Gulf of Oman, and
increased drone attacks against Saudi Arabia from both Iraq and
Yemen.
The day following the most recent U.S. strike, Iranian
militias launched multiple rockets at our forces in southeast
Syria and several days of attacks against our troops and
diplomats in Iraq, resulting in American injuries.
Beyond Iran's terrorism in the region, we recently saw a
plot to kidnap an American citizen on United States soil, an
appalling demonstration of Iran's disregard of what we are
doing.
While the Administration cited Article II authorities as
the legal basis for recent strikes, I am concerned with the
practical impacts of repealing the 2002 AUMF. The fact of the
matter is that the 2002 AUMF provides the only statutory
authority to strike Iran-backed militias in Iraq.
After all, the 2002 AUMF served as part of the legal basis
for the strike against General Soleimani. The Biden
administration's policy of less than robust responses to
attacks against U.S. interests have, clearly, failed to restore
deterrence.
Having said that, it is all the more important that we
underscore the message that we are trying to send. Coupled with
troop reductions across the Middle East, I am concerned that
the repeal of the 2002 AUMF only adds to the wrong message the
Administration and, I think, all of us are already sending to
Iran, our allies in the region.
A repeal of this authority amplifies Iranian messages that
they are ejecting the U.S. from the region, rewards Iranian
proxies for attacks against Americans, and decreases U.S.
leverage in the nuclear talks in Vienna, indeed, if we have any
leverage.
It is vitally important that we understand the conditions
under which we have previously relied on this authority for
both strikes at attention and that we are certain that a repeal
would not have the negative unintended consequences.
Finally, I am concerned that the repeal of the 2002 AUMF
could increase calls for repeal of the 2001 AUMF, an authority
that is critical to our global counterterrorism operations.
I have already heard some of my colleagues calling for a
repeal of the 2001 AUMF and I believe such an action without a
suitable replacement, which is the real problem, would make
Americans less safe.
Again, I think we have a lot to agree on. I think the
messaging is incredibly important, and again, it is important
that we hold this hearing.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Risch.
We will turn to our witnesses now. We have a great panel
here: the Honorable Wendy Sherman, who is the Deputy Secretary
of the Department of State, we appreciate your insights today;
Mr. Richard Visek, acting legal adviser at the U.S. Department
of State; and the Honorable Caroline Krass, general counsel,
the U.S. Department of Defense.
I would ask that you summarize your statements as much as
possible within 5 minutes. Your full statements will be
included in the record without objection.
With that, Secretary Sherman, you are recognized.
STATEMENT OF THE HONORABLE WENDY SHERMAN, DEPUTY SECRETARY OF
STATE, U.S. DEPARTMENT OF STATE, WASHINGTON, DC
Ms. Sherman. Thank you very much, Mr. Chairman, and thank
you, Ranking Member Risch, distinguished members of the
committee. Thank you for inviting me and my colleagues to
testify here today.
Ensuring the safety of American personnel overseas is the
highest priority of the State Department and, of course, of the
U.S. Government, the United States Congress, and the United
States Senate.
As diplomats, it is our honor to represent America's values
and interests at home and abroad. That requires our personnel
to travel and live all over the world, including in very
challenging environments.
We are here to discuss authorizations for the use of
military force, but I believe the hearing is also about our
democracy and the values we model around the world. Our foreign
policy works best when we work together.
President Biden is committed to engaging with Congress on
questions of war and peace, and to being transparent about
when, where, why, and how the United States uses military
force.
I want to state clear that the Biden/Harris administration
believes the 2002 authorization for the use of military force
against Iraq has outlived its usefulness and should be
repealed.
For the State Department, repealing the 2002 AUMF would not
affect our diplomatic initiatives, and the Administration has
made clear that we have no ongoing military activities that
rely solely on the 2002 AUMF.
The fact is, the 2002 AUMF is no longer necessary to
protect the American people from terrorism, to respond to
attacks on our personnel or facilities, or to ensure the safety
and security of our people.
The President has other tools available to achieve these
objectives. In fact, for the last 6 years, the executive branch
has relied on other authorities to underpin counterterrorism
actions and has only cited the 2002 AUMF as an additional
authority.
This was true for both the Trump and now the Biden
administration. The 2002 AUMF is also woefully outdated in
terms of our diplomatic relationship with Iraq.
The preamble of the 2002 AUMF states that Iraq ``poses a
continuing threat to the national security of the United States
and international peace and security.'' As the chairman has
said, this is not the case today.
We work closely with the Government of Iraq on a range of
issues, from economic development to combating terrorism. Far
from a threat, Iraq is an enduring strategic partner of the
United States.
There should be no doubt that President Biden will take
necessary proportionate action to respond to attacks against
U.S. personnel or facilities, including in Iraq.
Indeed, he has already demonstrated his resolve. Just over
a month ago on June 27, the President relied on his Article II
authority for our direct strikes in Syria and Iraq, at sites
used by Iran-backed militia groups who have been involved in
attacks against U.S. personnel and facilities in Iraq.
President Biden did not need the 2002 AUMF to protect
American interests in June, and our current assessment is that
we will not need the 2002 AUMF to protect American interests in
the foreseeable future.
If we do need additional authorities to defend our people,
we will not hesitate to come back to Congress to seek those
authorities.
I want to thank members of the Senate, including members of
this committee, who have worked tirelessly on this issue. I
particularly want to acknowledge Senator Kaine, Senator Young,
and Senator Murphy for your leadership and to thank former
Senator Udall for his efforts.
I know members of this committee and others in Congress are
also actively considering options to repeal and replace the
2001 AUMF. As these efforts continue, the Biden/Harris
administration stands ready to provide our guidance and
expertise and other materials to assist Congress in its
deliberations.
As the chairman noted, those conversations are already
ongoing. Repealing outdated, broad, or unnecessary
authorizations for the use of military force and replacing them
as needed with narrow, clear, and specific frameworks will
allow us to continue protecting our people and our interests
around the world.
Finally, I want to take a moment, Mr. Chairman and Ranking
Member Mr. Risch, to thank you for your help in trying to
confirm pending State Department nominees.
I thank the Chairman, Ranking Member Risch, for moving many
nominees forward with broad bipartisan support, and I hope they
will be swiftly confirmed by the Senate.
We are currently hamstrung in our ability to advance
America's interests around the world without confirmed
ambassadors and senior leaders.
I recently returned from a trip to China where it would
have been very helpful to have had the expertise of Ambassador
Dan Kritenbrink, our nominee to serve as Assistant Secretary
for East Asian and Pacific Affairs, who has been passed through
this committee and waiting floor approval.
Given the critical need to do everything we can to
strengthen our economy and improve the lives of working people
in our country, I hope, as the committee has done, that Jose
Fernandez will soon be confirmed as our Under Secretary for
Economic Growth, Energy, and Environment as soon as possible.
I thank this committee and the Senate for confirming Bonnie
Jenkins as our Under Secretary for Arms Control and
International Security before this strategic stability dialogue
we held with Russia last week.
I know there are other nominees who have already been
reported out of committee--10, I believe--by voice vote with
strong bipartisan support, and this committee has noticed an
additional hearing this week, which we greatly appreciate.
We appreciate this committee's continuing work to move our
nominees forward so they can get to work on behalf of the
American people.
Thank you again for inviting me to testify today. I look
forward to taking your questions.
Thank you, Mr. Chairman. Thank you, Ranking Member Risch.
[Prepared statement of Ms. Sherman follows:]
Prepared Statement of Ms. Wendy Sherman
Chairman Menendez, Ranking Member Risch, distinguished members of
the committee, thank you for inviting me to testify today.
Ensuring the safety and wellbeing of American personnel overseas is
of the highest priority to the State Department. As diplomats, it is
our responsibility and our honor to represent America's values and
interests at home and abroad. That work requires our personnel to
travel--and live--all over the world, including in many challenging
environments.
We are here today to discuss authorizations for the use of military
force. But I believe this hearing is also about our democracy, and the
democratic values we model around the world. President Biden is
committed to engaging with Congress on questions of war and peace, and
to being open and transparent about when, where, why, and how the
United States chooses to use military force.
At the outset, I want to note that the Biden-Harris administration
believes the 2002 Authorization for the Use of Military Force against
Iraq has outlived its usefulness and should be repealed.
For the State Department, repealing the 2002 AUMF would not affect
our ongoing or planned diplomatic initiatives. The Administration has
made clear, and my legal colleagues can elaborate further, that we have
no ongoing military activities that rely solely on the 2002 AUMF for
their legal justification, and that repeal would have minimal impacts
on military operations.
The fact is, the 2002 AUMF is no longer necessary to protect the
American people from terrorist threats, respond to attacks on our
personnel or facilities overseas, to ensure the safety and security of
our people, or to maintain our strong relationships with Iraq and other
regional partners. The President has other tools available to achieve
all of these objectives. In fact, for at least the last 6 years, the
executive branch has primarily relied on other authorities to underpin
counterterrorism actions overseas, and has only relied on the 2002 AUMF
as an additional authority.
There should be no doubt that, even if the 2002 AUMF is repealed,
the President will not hesitate to take necessary, proportionate action
to respond to attacks against U.S. personnel or facilities, including
in Iraq. On June 27, the President relied on his authority under
Article II of the Constitution to direct targeted strikes at locations
in Syria and Iraq used by Iran-backed militia groups who had been
involved in attacks against U.S. personnel and facilities in Iraq. He
did not need the 2002 AUMF to protect American interests in June, and
our current assessment is that we will not need the 2002 AUMF to
protect American interests in the foreseeable future. If we do need
additional authority at any point, we would not hesitate to come to
Congress and seek that authority.
I want to thank members of the Senate, including members of this
committee, who have worked tirelessly on AUMF reform for many years. I
particularly want to acknowledge Senator Kaine, Senator Young, and
Senator Murphy for your leadership on this committee and in the Senate,
and to thank former Senator Udall for his efforts as well.
I know members of this committee and others in Congress are
actively considering options to repeal and replace the 2001 AUMF as
well. As these efforts continue, the Biden-Harris administration stands
ready to provide expert guidance and other materials to ensure Congress
understands the likely effects of such a measure, as well as the
threats facing American forces, personnel, and interests around the
world.
Repealing outdated, broad, or unnecessary authorizations for the
use of military force, like the 2002 AUMF, and replacing them as needed
with clear, narrow, and specific frameworks will allow us to continue
protecting our people and our interests.
Thank you again for inviting me to testify today. I look forward to
taking your questions.
The Chairman. Thank you, Madam Secretary. We share your
concerns about having a State Department that is fully staffed
at some of the highest levels to promote U.S. foreign policy
and pursue U.S. national security and national interests.
It is my hope that we will have a process on the floor that
would allow these nominees that have, for the most part,
overwhelmingly passed through the committee in a bipartisan way
to be achieved.
I know that in the case of Mr. Fernandez, the objections of
one of our colleagues has been lifted, but it seems that the
Republican leader is still not putting his name forward.
We are waiting eagerly to get the final Under Secretary in
place. So we will continue to work at this. It is incredibly
important for any administration to have their nominees to be
able to conduct foreign policy on behalf of the United States.
Mr. Visek.
STATEMENT OF RICHARD VISEK, ACTING LEGAL ADVISER, U.S.
DEPARTMENT OF STATE, WASHINGTON, DC
Mr. Visek. Thank you, Mr. Chairman, Ranking Member Risch,
and members of the committee for inviting us to address the
Administration's support for repeal of the 2002 authorization
for use of military force against Iraq.
The preamble to the 2002 AUMF speaks to the threat the
United States was facing from Iraq in 2002. At that time,
Saddam Hussein's regime was threatening the lives of Americans,
flouting its obligations under U.N. Security Council
resolutions, brutally oppressing its own people, threatening
its regional neighbors, and posing a danger to international
peace and stability.
Today, the circumstances in Iraq have changed dramatically.
The Iraqi Government seeks friendship, partnership, and
cooperation with the United States and with the international
community.
The threats posed by ISIS and destabilizing Iranian
activities, including by Iran-backed militia groups in Iraq,
are serious and real, but those threats are not what the 2002
AUMF was designed to address nearly 20 years ago. As a result
and as Deputy Secretary Sherman just explained, the
Administration supports repeal of the 2002 AUMF.
Repeal is aligned with the President's commitments to
continuing a strong relationship with our Iraqi partners and to
working with Congress to ensure that outdated authorizations
for the use of military force are replaced with a narrow and
specific framework that ensures we can continue to protect
Americans from terrorist threats.
The President has stated that in any effort to reform
existing AUMFs it will be critical to maintain authority to
address threats to the United States with appropriately
decisive and effective military action. To be clear, we do not
believe that the repeal of the 2002 AUMF will impede our
ability to do so.
U.S. forces remain in Iraq at the invitation of the Iraqi
Government in a training, advising, assisting, and
intelligence-sharing role in support of our Iraqi partners in
their fight against ISIS.
This mission remains essential, but the 2002 AUMF is not
necessary to execute that mission or to protect and defend our
forces while doing so.
The 2001 AUMF authorizes the U.S. counterterrorism mission
against ISIS and al-Qaeda in Iraq and Syria. In addition,
Article II of the Constitution empowers the President to direct
certain military action when necessary to protect and defend
our personnel and facilities.
Some members of this committee have pointed out that Iran's
destabilizing activities in Iraq undermine U.S. objectives and
pose a threat to U.S. forces in Iraq. We agree. Iran-backed
militia groups have engaged in UAV and rocket attacks against
U.S. forces and facilities in Iraq.
Although we seek to deescalate and avoid conflict with Iran
and Iranian-backed militia groups, as Deputy Secretary Sherman
just noted, the President has made it clear that we will take
necessary and proportionate action in self-defense to respond
to attacks against U.S. personnel and facilities and Iraq.
To that end, the President directed strikes in both
February and June of this year in order to defend and protect
U.S. personnel from ongoing series of attacks to deter further
attacks. The President did not rely on the 2002 AUMF in
directing any of these recent actions.
In sum, we believe we have sufficient authority to continue
the vital counter-ISIS mission in Iraq and Syria, and to
address any threats to U.S. personnel or the United States that
might arise in Iraq without relying on the 2002 AUMF.
If circumstances change and it becomes clear that other
legal authorities are insufficient to address such threats, the
Administration would work with the Congress to develop an
appropriate new domestic authority that is tailored to
addressing that scenario.
Thank you, Mr. Chairman.
[Prepared statement of Mr. Visek follows:]
Prepared Statement of Mr. Richard Visek
Thank you very much, Mr. Chairman and Members of the Committee, for
inviting me to address the Administration's support for a proposal to
repeal the 2002 AUMF. I'm pleased to have the opportunity to be here.
The preamble to the 2002 AUMF speaks to the threats that the United
States was facing from Iraq in 2002 and that the authorization was
drafted to address. At that time, Saddam Hussein's regime had
demonstrated a continuing threat to the national security of the United
States and international peace and security. It was threatening the
lives of Americans; flouting its obligations under UN Security Council
resolutions; brutally oppressing its own people; threatening its
regional neighbors; and posing a danger to international peace and
stability. Just months after the 2002 AUMF was enacted, the UN Security
Council recognized a military occupation of Iraq by the United States
and the United Kingdom to promote the welfare of the Iraqi people,
restore security, and support the formation of a new representative
government for the Iraqi people. The 2002 AUMF authorized the United
States to use necessary force to defend the United States national
security from the continuing threat posed by Iraq, and to enforce all
relevant United Nations Security Council resolutions regarding Iraq.
Today, the circumstances in Iraq have changed dramatically. The
Iraqi Government seeks friendship, partnership, and cooperation with
the United States and the international community. The threats posed by
ISIS and destabilizing Iranian activities, including Iran-backed
militia groups in Iraq, are serious and real, but they are not the
threats that the 2002 AUMF was designed to address nearly 20 years ago.
As a result, the Biden-Harris administration supports the repeal of
the 2002 AUMF. Repeal of the 2002 AUMF is aligned with the President's
commitments to continuing a strong relationship with our Iraqi
partners, and to working with Congress to ensure that outdated
authorizations for the use of military force are replaced with a narrow
and specific framework that will ensure that we can continue to protect
Americans from terrorist threats. As part of efforts to work with
Congress on repealing and replacing outdated authorizations of military
force, we want to ensure that Congress has a clear and thorough
understanding of the effect of any such action. I am here today as part
of that effort.
The President has also stated that, in any effort to reform
existing AUMFs, it will be critical to maintain authority to address
threats to the United States with appropriately decisive and effective
military action. To be clear, we do not believe that repeal of the 2002
AUMF will impede our ability to do so. The United States has no ongoing
military activities that rely solely on the 2002 AUMF as a domestic
legal basis, and repeal of the 2002 AUMF would likely have minimal
impact on current counterterrorism operations. At least for the last 6
years, the U.S. Government has at most referred to the 2002 AUMF as an
``additional authority,'' alongside the 2001 AUMF and, at times, the
President's Article II authority, underpinning ongoing counterterrorism
operations against ISIS in Iraq and Syria. It is not the sole--or even
primary--authority for any of those ongoing operations.
U.S. forces remain in Iraq at the invitation of the Iraqi
Government in a training, advising, assisting, and intelligence sharing
role in support of our Iraqi Security Forces partners in their fight
against the continuing threat that ISIS poses in Iraq and Syria. We
continue to seek a stable, prosperous, and democratic Iraq. Although
this mission remains essential, we do not believe that the 2002 AUMF is
necessary in order to execute that mission or to protect and defend our
forces while doing so.
A separate statute, the 2001 AUMF, authorizes the counterterrorism
mission being carried out by U.S. forces in Iraq and Syria against ISIS
and al-Qa'ida to address the threat those groups continue to pose to
the United States. As we have previously briefed this committee, the
2001 AUMF also authorizes U.S. forces to use necessary and appropriate
force to defend U.S. or partner forces against threats and attacks as
they pursue missions authorized under the AUMF.
In addition, Article II of the Constitution empowers the President
to direct certain military action when it serves important national
interests, including protecting and defending U.S. personnel and
facilities, and when such action would not result in a ``war'' in the
Constitutional sense. The legal and historical foundation of this
Constitutional authority to protect the national security interests of
the United States is extensive and has been recognized over more than
two centuries, across presidential administrations.
Some members of this Committee have pointed out that Iran's
destabilizing activities in Iraq undermine U.S. objectives in Iraq and
continue to pose a threat to the national security interests of the
United States. We agree. Iran-backed militia groups have engaged in UAV
and rocket attacks against U.S. forces and facilities in Iraq that have
escalated in recent months. Although we seek to de-escalate and avoid
conflict with Iran or Iranian-backed militia groups, the President has
made clear that we will take necessary and proportionate action in
self-defense to protect U.S. personnel and facilities in Iraq from
attacks.
This is evidenced by the military action that U.S. forces have
taken to protect and defend our personnel and our partners against
attacks from these actors, and to deter future attacks. The President
did not rely on the 2002 AUMF in directing any of these recent actions.
In particular, on June 27, the President directed targeted strikes
against facilities at two locations in Syria and one location in Iraq
near the Iraq-Syria border. These facilities were used by Iran-backed
militia groups that have been involved in a series of UAV and rocket
attacks against U.S. personnel and facilities in Iraq. The strikes were
a necessary and proportionate action to defend our personnel against
these attacks and the threat of further attacks, and the operation was
consistent with both domestic and international law.
In sum, at the present time, we believe we have sufficient
authority to continue the vital counter-ISIS mission in Iraq and Syria
and to address any threats to U.S. personnel or the United States that
might arise in Iraq, without relying on the 2002 AUMF. We recognize
that there is always a risk that tensions with Iran and Iranian-
supported militia groups could further escalate and require a more
sustained military response than the discrete, episodic individual
strikes to date. If we are faced with that scenario, and if it becomes
clear that other legal authorities are insufficient to address such an
escalation, the Biden administration believes that it would be
important for the Congress and the Administration to work together to
develop an appropriate new domestic authority that is tailored to
addressing such a scenario. Thank you.
The Chairman. Thank you.
Ms. Krass.
STATEMENT OF THE HONORABLE CAROLINE KRASS, GENERAL COUNSEL,
DEPARTMENT OF DEFENSE, WASHINGTON, DC
Ms. Krass. Thank you, Mr. Chairman, Ranking Member Risch,
and distinguished members of this committee. I am honored to be
here today to help address your questions about the 2002
authorization for the use of military force against Iraq and
any legal implications of its repeal.
My colleagues from the State Department have already
provided a thorough summary of the key issues at the heart of
any discussion about repealing the 2002 AUMF. As a result, I
will keep my remarks very brief.
I want to be clear that the Department of Defense agrees
with this Administration's view as expressed in the statement
of administration policy that repealing that law would have
minimal impact on current DoD activities and operations.
We can say that confidently, because no ongoing military
activities rely solely on the 2002 AUMF as a domestic legal
basis.
Repealing the 2002 AUMF would not impede U.S. forces'
ability to protect and defend themselves. The Department of
Defense would have raised concerns and opposed repeal if we
thought it would put any of our men and women in uniform at
greater risk.
Repealing the 2002 AUMF also would not affect the legal
authority to continue the important work of ensuring the
lasting defeat of ISIS.
United States, along with members of the global coalition
to defeat ISIS and our local partners, including, in
particular, the Iraq Security Forces, have made tremendous
gains in that fight over the years.
For at least the past 6 years, the 2002 AUMF has been cited
only as an additional authority underlying the defeat ISIS
campaign. It was not a necessary authority at the outset of the
campaign and it is not necessary now.
The President will have sufficient legal authority to
continue addressing the threat from ISIS and other terrorist
groups, even if the 2002 AUMF is repealed.
Finally, repealing the 2002 AUMF would not significantly
constrain the United States' ability to respond to other
threats that are currently foreseeable in Iraq.
In particular, the department is clear eyed about the risks
to U.S. forces and to our partners and allies that are posed by
Iran-backed militia groups. We take those risks extremely
seriously.
The Department has considered the full scope of how any
repeal might affect our ability to continue addressing threats
in the region quickly and effectively.
In the end, we believe that sufficient domestic legal
authority would be available to do so even in the absence of
the 2002 AUMF.
As my Department of State colleagues have noted, if in the
future we are faced with a currently unanticipated need to use
military force, the Department, together with our interagency
colleagues, would work with Congress to develop any appropriate
new authorization tailored to addressing those threats.
Thank you again for the opportunity to speak with you
today, and I look forward to your questions.
[Editor's note.--Ms. Krass chose not to submit a prepared
statement for the record.]
The Chairman. Thank you very much to all our witnesses. Let
me start a round a questions for 5 minutes.
The Administration has issued a statement of administration
policy supporting a repeal of the 2002 AUMF.
Madam Secretary, I assume the State Department was part of
that process and as, I think, your testimony suggests the State
supports repeal?
Ms. Sherman. Yes, we do.
The Chairman. Ms. Krass, was the Defense Department part of
the process for the statement of administration policy and does
the Defense Department support repeal?
Ms. Krass. Yes, we were part of that process.
The Chairman. Does the Department support repeal?
Ms. Krass. Yes, we have no objections to repeal.
The Chairman. Now, it is my understanding that there are no
ongoing military operations for which the 1991 or 2002 AUMFs
are necessary as a domestic legal authority.
Is that the case, Mr. Visek?
Mr. Visek. Yes, it is, Mr. Chair.
The Chairman. I understand that the 1991 and 2002 AUMFs are
not necessary as the domestic legal basis for any detention
activities at Guantanamo Bay. Is that accurate?
Mr. Visek. That is correct.
The Chairman. Similarly, neither the 1991 nor the 2002 AUMF
is necessary for the detention of ISIS members abroad. Is that
correct?
Mr. Visek. That is correct.
The Chairman. Now, the Administration has not cited the
2002 AUMF in relation to the U.S. defensive actions against
Iranian-backed militias in February and July.
Is it accurate that the Administration believes it has
sufficient authority under Article II to defend U.S. interests
in personnel against Iranian-backed militias and does not need
the 2002 AUMF to do so?
Mr. Visek. That is correct.
The Chairman. If there was a need for the Administration to
take sustained action against Iranian-backed militias or Iran,
for that matter, in a manner that goes beyond Article II
authority, would the Administration come back to Congress,
Madam Secretary, for a new AUMF?
Ms. Sherman. As we all have said, yes, we would.
The Chairman. All right.
Based on those responses, I do not think Congress would be
doing its job or living up to its constitutional
responsibilities if we do not move forward with repealing the
1991 and 2002 AUMFs.
It was an authorization to use force against Saddam Hussein
and Saddam Hussein's Iraq. The need for that authorization
ended over a decade ago, and as our witnesses just testified,
neither AUMFs is needed for any ongoing operation or detention
activities, period.
Moving forward with this repeal of this authorization is
not just what is important for us to do to uphold our
congressional oversight responsibilities. It also directly
responds to the overwhelming will of the American people to
curtail endless wars in the Middle East.
Now, I suspect there will be a lot of hypotheticals, what-
ifs, thrown at our witnesses today, but I believe our duties as
senators is not to dream up scenarios in an effort to keep a
dead letter law on the books, especially when it comes to
something so serious as sending our troops into harm's way.
The 2002 AUMF is not the answer to any threat that we are
facing today, and if other existing authorities are
insufficient to address those threats, I would expect the
Administration to come to Congress to seek a new AUMF.
Now, Madam Secretary, I have heard the arguments against
repeal, that it would weaken our position vis-a-vis Iraq, Iran,
and in the Middle East, more generally.
In fact, Senator Risch and I recently had a productive
meeting with Iraqi Prime Minister Kadhimi on numerous facets of
the U.S.-Iraq bilateral relationship and the challenges it
faces with Iranian-aligned militias.
Our discussion underscored that we are in a radically
different paradigm in our partnership with Baghdad than we were
in 2002. So some have argued that repeal of the Iraq AUMFs will
cause the United States to appear weak.
I do not personally agree to that, but I would like to hear
from you, from the Administration's point of view. What is the
Administration's position on that point, and what steps is the
Administration taking and will the Administration take if a
repeal passes to ensure the United States maintains its overall
leverage in the region?
Ms. Sherman. Thank you very much, Mr. Chairman.
Indeed, we believe that repealing the 2002 AUMF is a signal
of the bipartisan work over the last more than two decades to
establish an Iraq that is very different than the one that
existed at the time that the 1991 and 2002 AUMFs were decided.
We now have a strategic partnership with Iraq. It is, in
fact, a sign of strength that together, both Republicans and
Democrats, have created a relationship with Iraq that is built
on strength, on a strategic partnership, that indeed, as you
pointed out, we are currently in a place as was decided by the
Iraqis themselves where our troops are focusing on training,
enabling, and advising our Iraqi partners that, indeed, the
U.S.-Iraq strategic dialogue in July resulted in a communique
that was less focused on military cooperation as the defining
feature than having the Iraqi Government itself commit to
defend any American personnel or troops in Iraq.
I think it really speaks to how strong we are in the region
that, in fact, we have developed this strategic relationship
with Iraq.
Iraqi forces, including the Peshmerga, have shown increased
capability to lead counterterrorism efforts and defend Iraq
sovereignty, and I think it speaks to the strength and the
success of the bipartisan efforts in building the strategic
partnership.
I think as well, as you have heard from me and from my
colleagues, that the President will not hesitate to take action
if we believe that any backed militia, Iranian or otherwise,
are a threat to the United States, that he has sufficient
authority under his Article II abilities and relying on a
revised 2001 in other appropriate circumstances to take
targeted strikes, as he did in both February and on June 27.
So I think, quite frankly, Senator, rather than speak to
weakness, this speaks to strength that the United States has
established this strategic partnership, that Iraq is quite a
different country than at the time of Saddam Hussein, and that
the United States is poised to have a different relationship
with Iraq and in the Middle East.
The Chairman. Thank you very much.
Senator Risch.
Senator Risch. Thank you. I want to pick up where the
chairman left off.
The meeting he and I had with the head of the Iraqi
Government was interesting, to say the least, and I think one
thing that went through my head was just what you have referred
to, Ms. Sherman, and that is how different things are today in
Iraq than they were in 2002 when the AUMF was passed.
Again, I want to underline here that I think we are all
wanting to reach the same objective here and that is to message
that we are going to continue to act out of strength and not
out of weakness, and I think that is probably where we part
ways as far as whether the 2002 should stay on the books or
whether it should be repealed.
I am concerned that if it is repealed that those who
receive the message will say, aha, no matter what they say,
they still repealed the 2002 AUMF, which is a sign of weakness.
The thing that I have not been persuaded on is what is to
be gained by the 2002 AUMF being left on the books.
I mean, we have all kinds of laws and resolutions and
executive orders and everything else that are put into place.
When they are over, they are put on the shelf and nobody
repeals them or anything else.
I see a gain in not repealing it so that those that are our
enemies cannot use it to say, look, we are backing down and we
are weak. I just do not see the advantage to leaving it on the
shelf.
Convince me why I am wrong, Ms. Sherman.
Ms. Sherman. Well, Senator, I understand your concern, and
messaging is very important.
In my own view, as I just said, I think that, in fact,
repeal says we have succeeded. Repeal says that the time of
Saddam Hussein is over. The time of an Iraq that was not a
partner of the United States is behind us.
So in my view and in the view of the Administration,
repealing the 2002 AUMF is a sign of strength, of success, of
moving forward in history.
I agree it should be put on the shelf and I think the only
difference we have is the word repeal, because I think
everyone, as you have noted, is saying that we are at a very
different time, as you experienced in your own discussion with
the Iraqi Government.
So I think repeal is really a message to the international
community that the relationship between--and our democracy is
one where we acknowledge the progress we have made, we
establish the strength of Iraqi sovereignty, that we have a
partnership with them, going forward, that this is a different
Iraq and a different time, and that in a bipartisan fashion
that the United States Government has moved forward to a more
peaceful, sovereign, and, hopefully, moving towards a more
democratic Iraq.
Senator Risch. Well, thanks. I like the message. Again, I
am troubled by the fact that the message might just be a little
too sophisticated for some of the people that are receiving the
message and passing it on.
Be that as it may, I think the best messaging we have done
in recent years is taken out General Soleimani, and, of course,
2002 AUMF was used as part of the reason for that. I do not
know whether it was or whether it was not. I think they would
have done that with or without the 2002 AUMF.
That is the best messaging that we have sent in a long,
long time. In any event, again, we are all headed for the same
objective here. I like your message.
I hope it is heard loud and clear throughout the Middle
East, and I am all in, but I do not think we need to repeal the
2002 AUMF to get there. Again, I think there is a whole lot
more agreement than there is disagreement on this.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Risch.
Senator Cardin.
Senator Cardin. Well, Mr. Chairman, first, I want to thank
you for holding this hearing. I think this is what we should be
doing, oversight on the AUMF, and I want to thank all three of
our witnesses for their service to their country.
Senator Risch, I think I will answer your question. It is
just possible that if we leave an authorization on the books,
an administration will misuse that authorization, and I give
you as example the 2001 authorization, which has clearly been
interpreted well beyond any of our interpretations when we
voted for it.
I speak personally because, like the chairman, I was a
member of the Congress in 2001. So was Senator Markey and
others that voted for that.
We never ever in our wildest dreams thought it would be
used in seven countries the way it's been used by now, I guess,
four administrations.
So one of the lessons that has been learned through this
process is that we need, in considering AUMFs, to have some
process in that AUMF for administrations to be able to update
that authority with congressional approval or allow that
authorization to expire.
I think that is going to be critically important that we
include in any further authorizations for use of military force
and our lessons that we learned from that is the 2001
authorization. The 2002 repeal should not be controversial, and
I understand Senator Risch's point and I respect it greatly,
but the 2001 should also be repealed and replaced.
I just would like to talk about the urgency here and then
ask the question. We are now in August of this Congress. Time
is evaporating. This is not an easy subject to replace
authorizations for the use of force.
In all due respect, I think it is absolutely essential for
the Administration to come forward as to the authorization that
they need because, you see, we all have different views about
the threats that are out there, the geographical scope of any
authorization, the requirements to come back to Congress if
circumstances changes and what type of an approval process is
necessary, the length of time for the authorization.
All those are questions that each of us have different
views, but the starting point should be those that have the
responsibility to exercise the power to keep us safe--the
executive branch, the president--to come to us and tell us what
you need and then let us debate it with you and, hopefully,
come up with a replacement.
Secretary Sherman, I very much respect your view on this. I
thought your last statement about repealing outdated, broad,
and unnecessary authorization for the use of military force
like 2002 AUMF and replacing them as needed with clear, narrow,
and specific frameworks will allow us to continue protecting
our people and our interests. I agree with that paragraph, but
I would add 2001 rather than 2002. We have got to replace that.
So I am seriously considering whether there will be an
opportunity for us, Mr. Chairman, to put a sunset on the 2001,
giving ample time for replacement to be voted on by Congress,
because otherwise, I am not sure we will ever do it.
It is just too easy for administrations to misinterpret the
authority of 2001 and, quite frankly, we are not at risk
because, as our witnesses have testified, there is adequate
authority under Article II to protect us.
So Article II is there to protect us against any imminent
threat. We are not going to be bare as far as protecting our
country. The President will protect us as the Commander-in-
Chief, but Congress should give the Administration the
authority they need and not just this broad use of an outdated
authority.
So, Madam Secretary, what is wrong with us setting a date
that we need to replace this by, recognizing that you always
have Article II authority?
I would hope the legacy of the Biden administration will be
that future administrations will not be relying on the 2001
authorization in order to protect us from a threat that did not
exist in 2001.
Ms. Sherman. Thank you very much, Senator.
As you know, the President of the United States served in
this body for 36 years and he has great regard for both the
Article I responsibilities of the Congress and the Senate, and
the Article II authorities of the President of the United
States.
He has committed and we have all committed to work with
Congress to ensure that outdated authorizations for the use of
military force are replaced with narrow and specific frameworks
that will ensure we can continue to protect Americans from
terrorist threats.
There are a lot of complex questions involved in doing this
scope duration more, but we welcome enhanced congressional
involvement and inter-branch dialogue over the use of military
force including in protecting the United States and U.S.
interests from the evolving terrorist threats we face.
We know that these are changing. The chairman mentioned
some, including in cyber that have changed the nature of
thinking about terrorist threats.
So the Administration is open and has begun already
discussions with Congress to replace or revise the 2001 AUMF
that might consider some of the following things: establishing
a mechanism to add groups beyond those that may have been
identified by name in the text of the AUMF because, as you
point out, it has been relied upon in circumstances, perhaps,
that you did not imagine; through appropriate input from an
engagement between the President and Congress or the executive
branch and Congress to establish a mechanism to add countries
in which the use of force is authorized against particular
groups; and to have a periodic review of groups and countries.
So I think that there is a lot of work to be done. It may
be that those kinds of ideas are not the right ones, but those
are things that we are willing to discuss as well as other
things that the Senate might put on the table.
We are in support, Senator, very much of continuing those
discussions in a timely manner to reach a revised 2001 AUMF at
the same time that we continue to support the repeal of the
1991 and the 2002 AUMFs, which we believe are not useful
anymore and are not relied upon in any circumstance.
Senator Cardin. Thank you, Mr. Chairman.
The Chairman. Thank you.
Senator Romney.
Senator Romney. Thank you, Mr. Chairman, and I very much
appreciate the opportunity that you have given our committee to
hear from these witnesses and to discuss this very important
matter.
I am going to continue with some of the comments and
questions that were raised by Senator Cardin.
Secretary Sherman, will the Biden administration misuse
this AUMF?
Ms. Sherman. No, sir.
Senator Romney. Good. Senator Cardin indicated that this
should be repealed and replaced, and I am focused on the word
replaced. There have been efforts to try and narrow and replace
these AUMF in the past.
Senator Corker, when he was chairman of this committee back
in 2018, brought forward such a revision. Did not make it out
of committee.
Going back to 2013, President Obama sought an AUMF with
regards to Syria. That, of course, was not successful on the
floor.
I am concerned that the prospect of this body ever
approving an AUMF to deal with the ongoing threat represented
by ISIS, the Taliban, al-Qaeda, and other like groups would
never pass this body and that, in addition to the comments and
the concerns that were raised by the ranking member, with which
I concur, that the idea that somehow we are going to come up
with some new AUMFs is just not realistic.
I think about a scenario. Perhaps, yes, certainly, the
President has Article II power to defend our troops and to
defend against imminent attack of the United States.
Let us say he continues to withdraw or a president
continues to withdraw troops from Afghanistan and Iraq and we
have no troops in Afghanistan and Iraq, and ISIS goes on a
rampage and starts expanding territory and wiping out
individuals there, or, for that matter, in Afghanistan, that
the Taliban routs the democratically-elected government and
starts killing women and children.
Would we, under Article II, have legal authority to go in
if we had no troops there or were not threatened in the
homeland?
Ms. Sherman. I would defer to my legal colleagues to answer
the legal point there. Your broader point, Senator, about
whether we need a new AUMF, we do believe revising the 2001
AUMF is appropriate and we hope that, working together with the
United States Senate, that, indeed, a 2001 AUMF revision can
take place.
So we fully support your view. That would be a good thing
to do.
Senator Romney. Quoting a great American, ``Hope is not a
strategy.'' Are there other AUMFs out there that have not been
repealed?
Ms. Sherman. No. We have the 2001, the 1991, the 2002. As
you point out, the Article II authority of the president which,
in fact, is most often been used not only by this president,
but by the previous president as the basis for taking action.
Senator Romney. Given the fact that you are convinced that
the Biden administration will not misuse this AUMF and the fact
that we face ongoing threats from various terror organizations,
and at least my conviction that it would be very difficult for
this body to ever agree to another AUMF absent a threat to the
homeland, why do you believe it is necessary for us to remove
this AUMF, which has been used by President Obama, President
Trump to defend our interests?
I think there is a sense that if the homeland is going to
be threatened that we have every right to step in. We all agree
with that, but our interests in the world go beyond protecting
the homeland. They also keep bad things from happening and
becoming so severe that they draw us in and, ultimately, do
represent a threat to the homeland.
So why take the chance that, as the ranking member
indicated, that this is misinterpreted in the Middle East? I
cannot imagine anybody in any leadership position thinks that
we are at war with Iraq.
It is very clear we are there at Iraq's request, that we
are collaborating and helping the government protect themselves
from ISIS and protect against the incursion of Iran.
That is the message loud and clear. No one thinks Saddam
Hussein is still in charge of Iraq and that we are fighting
Saddam Hussein.
So this has extraordinary potential to be misinterpreted.
Why do it now? They are about to have elections in Iraq.
Potentially, this could be misconstrued as somehow America
is pulling away. It just seems like the risk is much greater
than the benefit of the nature that you are describing.
Ms. Sherman. I think, Senator, I am going to defer to my
legal colleague on the use of the 2002, though I do not believe
that even President Trump used 2002 as the basis for any action
he took. The killing of Soleimani was done primarily under
Article II.
To your broader point, the Iraqi Government now sees itself
as a sovereign country in partnership with United States and
does not wish to have an appearance of the Iraq that is cited
in either 1991 or 2002.
Let me, if I may, let our acting legal advisor add from
legal perspective the value here.
Mr. Visek. Thank you, Senator.
I think there is a little bit of confusion that is creeping
in and I think that is because we are talking about two AUMFs.
Senator Romney. Yes, and that was raised by the chairman
and Senator Cardin. I think, in reality, we are talking about
two. I know it is not literally on the agenda, but that is the
case.
I know I have gone over my time, Mr. Chairman. So I will--
--
Mr. Visek. If I may, Senator, the 2001 AUMF, obviously,
authorizes our activities against ISIS and the Taliban.
That is a cornerstone of that effort, and I think it is
important to recognize what we are talking about in the context
of the 2001 is replacing that with a narrower specific
framework that can ensure that we are still able to carry out
that duty.
The 2002 AUMF, on the other hand, the AUMF against Iraq, we
can continue to conduct our operations and we can address the
ISIS and the Taliban threat----
Senator Romney. Even with no troops there?
Mr. Visek. Without--well----
Senator Romney. If we had no troops there?
Mr. Visek. Well, sir, whether or not we have troops there
is another question, but without the 2002 AUMF. The 2002 AUMF
would not put troops there. It would not take away troops, but
it does not add any authority and we do not rely on it for
those operations.
Senator Romney. Thank you, Mr. Chairman.
The Chairman. Thank you. Just two remarks for the senator's
consideration. I was the author of the 2013 AUMF, then at the
request of President Biden, because Assad was using chemical
weapons against his people.
That AUMF passed this committee with the late John McCain
and Barbara Boxer, two extremes of the ideological divide, in a
robust bipartisan vote.
The reason it did not go to the floor--it is not that it
failed on the floor. It did not go to the floor because
President Obama took that authorization of the committee and
made it very clear at the G-20 meeting in Russia that he would
seek to finalize that authorization and use it against Assad if
he did not give up his chemical weapons.
It is not that it failed on the Senate floor. It just never
got there because it was not necessary.
I know that I opened up the conversation, and I intend for
it to be that way, about the 1991, 2002, but also the 2001, but
what the committee will be voting on in the first instance will
be the 1991 and 2002 AUMF repeals.
All I will say on that regard is it would be a perversion
of what Congress voted for to read in those authorizations
anything, anything, that goes beyond the Saddam Hussein era of
Iraq, and that is we have a legitimate conversation going on in
the 2001 and what it means.
On the others, I think it is a little less certain, but I
appreciate the senator's views and interest.
Senator Shaheen.
Senator Shaheen. Thank you, Mr. Chairman, and thank you to
each of our witnesses for your service and for your testimony
today.
Ms. Krass, I am going to actually begin with you and I am
going to try and restate what I think was Senator Romney's
question to Mr. Visek, and I am directing it at you because you
are in the Department of Defense.
Would the repeal of the 2002 AUMF impact U.S. forces that
remain in Iraq now in any way?
Ms. Krass. No, Senator.
Senator Shaheen. Can you provide a scenario in which the
President might need to rely on that AUMF to use force in Iraq?
Ms. Krass. No, I cannot think of one.
Senator Shaheen. Thank you. I am not sure who to direct
this at, but some of the U.S. litigation around AUMF
authorities has dealt with the issue of detaining enemy
combatants.
So maybe, Ambassador Sherman, you would take the first
crack at this. What, if any, effect do you anticipate the
repeal of the 2002 AUMF would have on the detainee issue?
Ms. Sherman. None whatsoever, Senator, and certainly defer
to Mr. Visek and to Ms. Krass if they have anything to add from
a legal perspective, but my impression is none.
Senator Shaheen. Mr. Visek.
Mr. Visek. Senator, the 2002 AUMF is not a source of
authority for any current detainee operations, including those
at Guantanamo.
Senator Shaheen. Thank you.
Just to go back, I think, Secretary Sherman, you answered
this in your opening statement, but I do believe that the
previous administration sited the 2002 AUMF and strikes against
Iran and its proxies.
As you pointed out, this administration does not believe
that the AUMF provides authority for force against Iran-backed
militias or against Iran. Did I understand that correctly?
Ms. Sherman. So it does not provide any authority to attack
Iran. Indeed, as I mentioned a moment ago, is my understanding
and recollection that when the previous administration took the
attack against Qasem Soleimani, it primarily relied on Article
II.
Article II--the AUMF 2002 was used as an additional
authority, but was not a necessary one.
Senator Shaheen. So can you describe what authorities the
Administration is relying on in the operations that have been
taken so far this year against Iran-backed proxies in Syria and
Iraq?
Ms. Sherman. If I may, let me let the legal advisor answer
the legal authorities for those strikes, though I believe they
were Article II authorities.
Senator Shaheen. Mr. Visek.
Mr. Visek. That would be correct, Senator. Under the
domestic law basis, the President acted under his authority
under Article II to defend and protect U.S. personnel from
attacks.
From an international law basis, we were relying on our
inherent right of self-defense under Article 51 of the U.N.
Charter.
We reported the Article II to the Congress, consistent with
the War Powers Resolution, and also we reported our basis to
the U.N. Security Council in accord with Article 51.
Senator Shaheen. Just to be clear, so if U.S. personnel are
affected again, we do not need the--in the Middle East, we do
not need the 2002 AUMF in order to defend them?
Mr. Visek. That is correct.
Senator Shaheen. Thank you. Thank you, Mr. Chairman.
The Chairman. Thank you.
Senator Paul.
Senator Paul. I wholeheartedly support the public and
official ending of the Iraq war. Many of us thought the war was
a mistake to begin with. Large percentages of the public now in
retrospect think the war was a mistake.
Even if you poll our veterans who fought in the war, the
vast majority of our veterans actually think it was a mistake.
So publicly ending the Iraq War, which has been over for a
decade, is a great idea and should not be controversial.
People who want to keep it in place have to realize that
this vote will be similar to the vote in 2002. The vote in 2002
allowed 100,000 troops or more to be in Iraq, it allowed 2,000
of our soldiers to die, it allowed 20,000 people to be wounded,
and over a thousand young men and women to lose their arms and
legs.
That is what you are voting for now. If you leave this in
place, any president could do the same thing they did in 2002.
That is what you are voting for.
Would not you want to vote again? People say we might not
vote for it. That would be good if we did not vote for another
Iraq war, but if there is another need for a war, come and
vote. When we have been attacked, we have voted overwhelmingly.
When we were attacked on 9/11, we overwhelmingly voted.
Iraq was a different story, and still people have debates
over whether it was a good idea to this day, but if you vote to
leave it on the books, you are voting to allow a president to
send as much as hundreds of thousands of troops in.
Now, there is just debate over what you can do under
Article II authority. I, personally, think it would be much
narrower than any reason a president has interpreted it to be.
Every president has interpreted it to be wide open, and the
only way we stop them, the only way we can possibly stop them
is by defunding something they do and we are unlikely to do
that.
I do not think any president believes they can take 100,000
troops into Iraq or into any country without an authorization
of force.
So getting rid of this gets rid of the possibility of a big
war by any president, I think. I do not think any president
would attempt to do that without this in place. So we get rid
of the possibility of a big war. That is what we are voting
against.
All the little things--not always little, but all of the
military actions that presidents take they will continue to
take without any authorization.
With regard to 2001, there is a danger, and this is where I
disagree with many who want to replace it. Absolutely, we
should repeal it. People say, oh, we want to make it narrower.
It is extremely narrow.
It authorized us to go after those who planned, authorized,
committed, and aided the terrorist attacks on one day,
September 11. It has been interpreted to be associated forces,
ISIS, al-Qaeda. There is no one left alive that has anything to
do with 9/11.
So it is very narrow. It does not apply to anything we are
doing around the world as we speak, but it has been overly
broad and overly broadly interpreted. So we should repeal it
also.
We should not have a thousand troops in Mali. We should not
have a thousand troops in Somalia. We should not be in 14
different countries.
If we replace it, all of the replacements of 2001
authorization have been still broad enough to be interpreted to
include all the places we are involved with. Dozens of wars
could be fought with most of the replacement bills.
So I would say repeal them all. War is supposed to be
something that is difficult to get involved with. Come before
us. We just give up our power by having any AUMF on the books.
They all should be repealed, and if people want to go to
war, which is a terrible thing, come and vote. When we have
been attacked, we will vote to go to war, but we are reluctant
to, and good. That should be a good thing that we should not.
Is it likely we would vote to go to war in Mali or Somalia
tomorrow? We would probably vote against it and that would be a
good thing. That is also why we should not be there now.
I caution those who want to replace it that replacing 2001
most of the efforts, while well intended, I think were as broad
or broader in the actual language. The language is actually
very narrow in 2001, but has been overly interpreted.
So I think it is important that the American people know
this is a vote about a war that has long been over, but a vote
to keep this is really a vote to allow something as big as the
Iraq War was at its maximum. That is what this is about.
If you want that kind of power on the books and you do not
want to vote again--you know, if a brand new threat comes up,
you do not want to have the power to determine for your
constituents whether we go to war or not, that is giving up a
huge amount of power that our Founding Fathers thought should
always be vested in Congress.
That is all I have. Thank you.
The Chairman. I thank the senator.
I have asked Senator Coons, who is next to question, also
to preside for a few minutes.
Senator Coons.
Senator Coons [presiding]. I would like to thank our
witnesses who have appeared before us today and just take a
moment to make sure that I have clarity and that those who may
be watching have clarity and the members of this committee have
clarity about what we are discussing and what we are not
discussing.
If you could each just repeat briefly. It has been your
testimony today that repealing the 1991 and the 2002 AUMFs will
have no impact on our security, on our operations.
In fact, they will have positive impacts on our relations
with Iraq on a demonstration that the constitutional roles in
the democratic process can actually function, and I will speak
for myself now describing this Administration.
One might view that action as the beginning step in
rebalancing the operational roles between the executive and
legislative, in particular, the constitutional role of the
Senate, and the declaration of war.
So could you just please, each of you, am I understanding
you correctly, the repeal of 1991 and 2002 will have no impact
on our security or deterrence and would, in fact, be a positive
for our nation.
Ms. Sherman. I agree, with you, Senator.
Senator Coons. Mr. Visek.
Mr. Visek. That is correct, Senator.
Senator Coons. Ms. Krass.
Ms. Krass. Yes, Senator. There are no ongoing military
operations that rely solely on the 2002 AUMF.
Senator Coons. So it is my hope that we will proceed to
take this important first step and repeal these two outdated
and no longer relevant or necessary AUMFs.
There has been a lot of conflating those two AUMFs and the
2001 AUMF, and I think that is, largely, because of a dynamic
where the 2001 AUMF has been stretched beyond all recognition
in terms of its scope and reach from what was contemplated when
it was initially adopted.
The chairman referenced the process many of us went through
in 2013 where we debated and, ultimately, passed in a robust
and bipartisan way an AUMF related to Syria.
Let me ask just a few questions, if I could. The United
States recently carried out strikes on al-Shabaab targets in
Somalia, and I think that raises exactly the sorts of questions
about scope, about narrowness, about adding new combatants.
That is really at the heart of our debate and our concerns.
Ms. Sherman, if you might, given the 2001 AUMF does not
mention al-Shabaab or Somalia, how did we come to be at war
with al-Shabaab and has al-Shabaab ever specifically targeted
Americans or our homeland prior to the Obama administration
determining it was an associated force?
Ms. Sherman. Right. As you noted, Senator, the Obama
administration determined and notified Congress in 2016 that
al-Shabaab is covered by the 2001 AUMF as an associated force
of al-Qaeda.
The determination was made with respect to al-Shabaab
because, among other things, al-Shabaab has pledged loyalty to
al-Qaeda in its public statements, made clear that it considers
the United States one of its enemies, and been responsible for
numerous attacks, threats, and plots against U.S. persons and
interests in East Africa.
In short, al-Shabaab has entered the fight alongside al-
Qaeda and is a co-belligerent with al-Qaeda in hostilities
against the United States, making it an associated force and,
therefore, within the scope of the 2001 AUMF.
As I understand it, and my legal colleagues--I should say
to this committee I am not a lawyer--my understanding is that
it was in fact the 2001 AUMF that allowed for the domestic law
basis for this, and as a matter of international law the legal
basis for use of force by the United States in the territory of
Somalia is consent of the Somali Government itself.
So that is my understanding. I do not know if my colleagues
have anything they want to add.
Senator Coons. Ms. Krass, anything you would like to add to
that? I am going to ask you a follow-on briefly on top of that.
Did the Biden administration review the Obama or Trump
administration's determination that al-Shabaab was an
associated force, and if so, on what basis if it differs in any
way from what the deputy secretary just articulated?
Mr. Visek. Senator, first, I should say that Deputy
Secretary Sherman answered perfectly and she has proved that
she does not need lawyers.
With respect to the review, there is an ongoing review
being conducted by the Administration across an entire spectrum
of counterterrorism issues, including direct action, and we
hope to--when that review is done, we hope to be as transparent
as possible, but it is taking a deep dive look at the entire CT
program and it is underway. At this point, I do not have
anything final to report on that score.
Senator Coons. Ms. Krass.
Ms. Krass. I have nothing to add, Senator.
Senator Coons. Let me just ask whether--in the interest of
transparency something I welcome and will celebrate about the
Biden/Harris administration.
Could you provide a list to this committee of all countries
where force has been used pursuant to the 2001 AUMF since it
was enacted 20 years ago and a list of groups against whom you
believe force may currently be authorized pursuant to the 2001
AUMF? Is that a list you could imagine providing to this
committee?
Mr. Visek. Senator, I know that we report as a matter of
course on our activities under the regular war power reporting
and also pursuant to various provisions of the NDAA on military
operations, including their location as well as groups that are
targeted.
Whether we have the ability to go back 20 years, I do not
want to necessarily commit to that. I think if we have that, I
do not see why we would not be able to provide that.
Senator Coons. Madam Deputy Secretary, I wondered if you
could make any commitment to us that we would have an open
debate about the current groups and nations in which
authorization is believed to rest on the 2001 AUMF.
Ms. Sherman. As I said earlier, Senator, we absolutely are
open to open conversation with you about how the 2001 AUMF
might be revised, including the groups that should be covered
and how we might have an ongoing process to ensure a strong
partnership between the Congress and the executive branch in
this matter.
Senator Coons. Well, thank you. Before I turn to Senator
Young, I am just going to say how much I appreciate your
articulated commitment to finding a way to craft an AUMF that
is narrower, more specific, that has a clear process for adding
territories or groups and that would include an end date.
That is a direct challenge to this committee and to the
Senate to engage in a respectful, appropriate, and
constitutionally necessary dialogue with this administration
about our role and your role in both securing the people of the
United States and in demonstrating our ability to exercise our
constitutional responsibilities.
Senator Young.
Senator Young. Thank you, Chairman.
I understand that the 2001 AUMF is of great interest to
many of my colleagues because there is much to be debated there
in the future as it pertains to the scope of the authorities,
how it might be amended, how it might be replaced.
I am going to focus on, really, the thrust of today's
hearing, which is the legislation that is before this committee
and will soon, I suspect, be before the United States Senate--
the repeal of the 1991 and 2002 AUMFs.
Now, each of those AUMFs was focused on the threat posed by
Saddam Hussein and his regime in Iraq. Let us take the 2002
AUMF as our focal point.
After lengthy findings on the threats posed by the regime
of Saddam Hussein, Congress authorized the President in 2002
to, ``Use the Armed Forces of the United States as he
determines to be necessary and appropriate to, number one,
defend the national security of the United States against the
continuing threat posed by Iraq''--that is Saddam Hussein's
Iraq--``and, two, enforce all relevant United Nations Security
Council resolutions regarding Iraq.'' That is Saddam Hussein's
Iraq.
Secretary Sherman, is the United States still at war with
the Government of Iraq as it states in the 2002 AUMF?
Ms. Sherman. No, we are not, Senator.
Senator Young. Okay. Are our forces deployed to Iraq today
at the invitation of a new Iraqi Government?
Ms. Sherman. Yes. Iraq is a sovereign government and we
have a strategic partnership with them.
Senator Young. Let us put a pin on that. That is what we
are talking about here. It has nothing to do with 2001. We are
just focused on 1991 which, incidentally, I was right out of
high school. I had just enlisted in the United States Navy.
In 2002--as you know, the regime of Saddam Hussein was
removed in 2003 pursuant to the terms of the very AUMF, the
2002 AUMF that I have just referenced, and Saddam Hussein was
brought to justice by brave American servicemen and women and
by some of the Iraqi people.
The Government of Iraq is now a partner. They are not an
enemy of the United States, and U.S. troops are there at the
Government's invitation, as Deputy Secretary Sherman just
indicated.
With that, if our forces in Iraq were to be attacked by
Iranian-backed militias, the Islamic State, or other terrorist
groups, is there anything whatsoever that would stop the
President of the United States from allowing U.S. forces to
defend themselves against such an attack?
Deputy Secretary Sherman.
Ms. Sherman. No. There is nothing that would keep the
President from taking action as he has done on more than one
occasion since he has become president.
Senator Young. Mr. Visek, do you agree with that
assessment?
Mr. Visek. I agree.
Senator Young. Ms. Krass, do you agree with that
assessment?
Ms. Krass. Yes, I agree, sir.
Senator Young. Would repeal of the 1991 or 2002 AUMF, the
only thing we are focused on here today, negatively impact or
endanger our service members and diplomats serving in Iraq?
Deputy Secretary Sherman.
Ms. Sherman. No, it would not, sir.
Senator Young. Do you agree with that assessment, Mr.
Visek?
Mr. Visek. Yes, I do.
Senator Young. Ms. Krass.
Ms. Krass. Yes, I agree.
Senator Young. Okay. If this repeal of the 1991 and the
2002 AUMF and no other AUMFs moves forward, as I expect it
will, would any of you on the panel have any concerns about the
safety and security of U.S. personnel stationed in Iraq on
account of said repeal?
Yes or no, please. Deputy Secretary Sherman.
Ms. Sherman. No, not as a result of the repeal.
Senator Young. Mr. Visek.
Mr. Visek. Not as a result of the repeal, no.
Senator Young. Ms. Krass.
Ms. Krass. I agree, not as a result of the repeal.
Senator Young. I have no further questions. Thank you so
much.
Senator Coons. Thank you, Senator.
Senator Murphy.
Senator Murphy. Thank you very much, Mr. Chairman.
Mr. Chairman, I have had only a few of what I call
supermarket moments in my time in public service.
These are moments when the people I represent are so
exercised by a conversation we are having here in Washington
that they do not sort of wait to walk across the supermarkets
to register their opinion with you. They yell it at you, and
there has been a handful of them.
The health care debate in 2009 was one of them, but another
was Labor Day weekend 2013 when President Obama had requested
the authorization to use military force in Syria and we were
about to have that debate.
My constituents back home had grave concerns about a
commitment of U.S. forces into Syria and so did all of yours,
because while this committee did do good work in moving that
resolution forward--I did not support it--but it did receive a
bipartisan vote before this committee, it was not likely going
to pass the United States Senate or the House of
Representatives.
It likely did not have enough support to move through the
entire body. Why? Because the American public often is much
more skeptical about the commitment of U.S. forces abroad than
this body is or that the foreign policy consensus is in
Washington, DC. Why? Because they have seen time and time again
mistakes being made.
So I think Senator Romney is right that passing future
AUMFs will be difficult, but for good reason. Because the
American public are very, very hesitant to commit U.S. forces
abroad.
Sometimes, despite the fact that think tanks in Washington
think it is a good idea for us to make war overseas, the
American public do not. As our Founding Fathers believed, we
have an obligation to listen to them.
So I just think it is important to lay that down for the
record that the difficulty of passing authorizations of
military force is not an excuse to grant wholesale new powers
to the Administration. There is a reason for the difficulty.
My set of questions is in pursuit of trying to find
limiting principles around the powers that have been granted to
the executive branch, particularly in the post-2001 era.
I agree with Senator Young. Repealing 2002, 1991 likely has
no impact on our ability to protect forces in the region. I
think we should go forward quickly in this matter.
I also think it makes us stronger in the region when we
more accurately define our enemies. When we train our
objectives with a finer point in the Middle East, a very
complicated place we are stronger. So I do not buy the argument
that this makes us weaker.
So let me ask you about a couple of limiting principles.
Secretary Sherman, does the Administration recognize the
concept of imminent threat as a limiting principle? In other
words, if a strike is simply retaliatory against an enemy who
has struck the United States or is designed to prevent future
attacks, is that allowed without an AUMF?
Or does the Administration always have to prove that they
are trying to prevent an imminent future attack against the
United States?
Ms. Sherman. Senator, on that question, I am going to defer
to my legal advisor.
Mr. Visek. Senator, I will start and I suspect it would be
helpful if I turned over to my colleague, Ms. Krass, who
understands the DoD operational guidance better than I, but
when we are attacked, we have a right to defend ourselves, and
I think the idea of imminence is really more in the--what we
would sort of call the use--from just a legal standpoint as
opposed to a policy standpoint, the jus ad bellum idea that you
can certainly defend yourself against an imminent attack, and
there are various----
Senator Murphy. You do not perceive it necessary to prove
that there is an imminent attack?
Mr. Visek. Taking the two strikes that we did this year,
the February and the June strikes, I do not think there was a
requirement that there be a concern about----
Senator Murphy. The proof of an imminent attack.
Let me ask you this, just because the time is running out,
do we have the ability to take military action to protect
partner forces?
Let us say there is no attack that is imminent against the
United States. Can we take action to protect partner forces?
Mr. Visek. On this one, I will certainly defer to my
colleague, Ms. Krass.
Ms. Krass. Senator, our U.S. Armed Forces are operating
under existing domestic legal authority, and there is threat of
imminent attack against our partner forces who are working
alongside us, for example, to defeat a counter a terrorist
group, we may use force.
Senator Murphy. Even if there is no threat of force being
used against United States, if there is a threat of force
against a partner force in a country subject to a battle
against an associated force of al-Qaeda under the 2001 AUMF we
have the ability to use military force against them without
prior authorization from the United States Congress?
Ms. Krass. Yes, because the whole conflict would have
already been authorized by Congress.
Senator Murphy. Lastly, I think you can see how it is a
little difficult for the American public to figure out where
these authorizations end when it is construed so broadly.
Lastly, I will address this to whoever wants to take it.
How do you take a look at the question of when the frequency of
Article II strikes requires you to come to Congress for a new
authorization?
We have seen an increased frequency of attacks against
Iranian-aligned militias. How do you enter into this question
of when the frequency of Article II attacks requires you then
to come to Congress for new permission?
You can see a circumstance in which if you are striking
twice a year maybe you can consider that Article II authority,
but if you are striking once a week, that does not sound like
Article II authority. What is the limiting principle there?
Mr. Visek. Well, Senator, as the voice in my head is always
going you are--I am now having to engage in hypotheticals, and
I guess that is my one point where facts and circumstances are
always important. So we would, obviously, have to assess it in
light of that.
To try to attach it to concrete sort of--a situation that
we are dealing with now, the attacks from the Iran-backed
militias, for example, we do not see those to be--we do not see
any sort of continuing ongoing attacks by a particular entity.
They tend to be more in the discrete individual--episodic,
if you will. So there we think the Article II power is more
than adequate.
Now, at the beginning of this hearing, Senator Menendez
referenced the OLC opinions, and I realize that there are
differing views on those, but as executive branch lawyers, we
do take guidance from the Office of Legal Counsel in that
regard and there are limiting principles in terms of at what
point do we think the--and I believe Senator Menendez referred
to this--the scope, duration, and nature--the reasonably
anticipated scope, duration, and nature would rise to,
basically, a level of war that would require us to come to the
Congress and that would be focusing on not only our operation,
but the likely responses that would follow from that.
Then in terms of limiting principles, because I am here on
behalf of the Department of State I would also say there is,
plainly, limiting principles in international law, which we
respect and that a strike would need to be necessary and it
would need to be proportionate.
Then, obviously, once we are engaged in strikes, we,
obviously, follow the rules of international humanitarian law,
which focus on the principles of distinction, necessity,
humanity, proportionality so as to minimize, say, harm to
civilians and to make sure we are acting proportionately.
Senator Murphy. I am well over my time. This is a
fascinating conversation, but I appreciate the indulgence, Mr.
Chairman.
Senator Coons. Happy birthday.
Senator Rounds.
Senator Rounds. Thank you, Mr. Chairman.
First, let me just begin by saying thank you to all of you
for being here and participating in this. I think Senator
Murphy has really started the conversation that many of us
wanted to have here today with regard to, number one, the role
and responsibility of the United States Congress, the role and
responsibility of the executive branch, and how the AUMFs that
are currently in effect impact that relationship.
I think there is pretty broad agreement that the 1991 is
outdated. It appears that the 2002, the challenges here I think
a number of the members here believe that it is outdated.
Yet, at the same time, it would appear that it has been
relied on most recently by two different administrations in
conjunction with Article II capabilities.
Just looking back, it would appear that the attack on
General Soleimani by the Trump administration and it appear
that both the Obama administration and the Trump administration
had used the 2002 AUMF to justify military action against
Iranian-backed militias and proxies, the Iranian Government and
the Islamic State.
Now, unless I am mistaken, I believe they referred to both
the Article II and the 2002 AUMF in their justifications, and I
am just simply going to ask our two attorneys here am I correct
in that assumption?
Ms. Krass.
Ms. Krass. Yes. My understanding is, particularly vis-a-vis
the Trump administration, is that it was cited as an additional
authority, but the primary authority for the Soleimani strike
was Article II.
Senator Rounds. Thank you. Would you agree, sir?
Mr. Visek. I would agree, and I would just note, Senator,
that my predecessor and my former colleague when he came up to
testify, he, with respect to the Soleimani strike, he said, ``I
would emphasize that independent of the 2002 AUMF the
President's constitutional authority under Article II provided
a sufficient basis in domestic law for the strike.''
In other words, the 2002 was not necessary. The Article II
would have been sufficient. The 2002 has been over the last 6
years referred to as, I think, an additional or a reinforcing
authority.
Senator Rounds. Thank you. I think the question for many of
us here is the AUMF, in a way, was an acknowledgement of
Congress' role in the declaration of war or the actions that
would be considered warlike.
If we walk away from or we decide that one of these AUMFs
is no longer necessary, then we are also recognizing that the
sole authority that the executive branch uses under Article II
is, in some cases, not restricted by that same AUMF.
So I look at the AUMF as, perhaps, a restriction or a
direction by Congress, and I guess what I am looking for is, is
in this particular case, Congress had deemed that it was
necessary to lay out where those actions were to be authorized.
I would suspect that the executive branch of government
would not have recognized that as a limitation, but as a
further authorization.
I do not want to acknowledge or to suggest that the
authorizations or the use of force by the United States
Government is solely reliant on Article II responsibilities and
what I would ask just, very briefly, is would it be fair to say
that if we eliminated the 2001 and the 2002, would there be--
and I think you have all indicated somewhat this--but is there
a need to look at the 2001 and perhaps make modifications and
update that as part of the overall review of these AUMFs?
Ms. Sherman. So we have stated quite clearly that we
believe that it makes sense to revise the 2001 AUMF and look
forward to those ongoing conversations with Congress because
the President does respect and appreciate the Article I role of
the United States Congress, along with his Article II
authority, which has been the basis.
What I would say, Senator, because I understand the point
you are making, that you want to make sure that if the 2002 and
1991 AUMFs are repealed that it does not give a green light to
the President, any president, to do whatever he wants whenever
he wants without regard to the Article I authority of the
United States Congress.
I think that is why, indeed, to follow up on Senator
Murphy's questions, working on a revised 2001 AUMF would,
indeed, assert further Congress' role in defining the uses of
military force.
I think every Congress has wanted to make sure that any
president of the United States is able to act in the defense of
our country.
Senator Rounds. Thank you. My time is expired.
Thank you, Mr. Chairman.
Senator Coons. Thank you.
Senator Kaine. If Senator Kaine would take over the
presiding duties, please.
Senator Kaine [presiding]. Be glad to. Thank you, Senator
Coons, and thanks to the witnesses for a great hearing. I am
going to confine my comments to the 1991 and 2002 AUMFs.
I think the 2001 AUMF revision is a more complex decision,
and so let me just confine my comments to 1991 and 2002.
I believe the repeal of 1991 and 2002 is very
straightforward because the war is over. The 1991 authorization
was to push Iraq out of Kuwait. We succeeded.
The 2002 authorization was to topple a hostile government,
the government of Saddam Hussein. We succeeded, and in the
years since he was executed following a trial in 2006, there is
a new government that has been constituted. So the war is over.
After World War II, we did not keep a military
authorization live against Japan, just in case. We did not keep
an authorization live against Germany, just in case, and we
could have because we had had two wars against Germany in the
previous 30 years.
No, we ended the war and we made allies out of Japan and
Germany. After the Vietnam War, we did not keep a military
authorization for war against Vietnam around just in case.
We have worked to build an increasingly cooperative
partnership with Vietnam. There are still challenges in that
relationship, but we do not keep military authorizations around
when the war is over, just in case.
We try to make allies and partners out of those with whom
we have been at war. What a unique thing about our country,
that we can be at war with Japan and then Japan becomes an
amazing ally of the United States, that we can be at war with
Germany and Germany becomes an amazing ally of the United
States, that we can have a relationship with Vietnam, where the
USS John McCain does port visits in Danang Harbor.
It speaks to the magnanimity of the United States and these
other nations that we turn enemies into allies, that we beat
swords into plowshares.
So when a war is over, we should not continue to label a
nation an enemy. We should try to make them an ally, and I
believe, Secretary Sherman, what you said. We have done this
with Iraq to a significant degree.
We have made them a partner, and to continue to label them
as at least an enemy enough to warrant a war authorization
against them strikes me as something that we have not done in
the past and we should not do now.
Let me dig into this. You are a diplomat and you have done
a lot of work in the Middle East. What does Iran fear more?
Would they rather have an Iraq that was hostile to the
United States or would they rather have an Iraq that was a
close economic, diplomatic, military, strategic, humanitarian,
and security partner with the United States? What is more
trouble for Iran?
Ms. Sherman. I think you have painted it quite clearly,
Senator. Iran is quite anxious about the fact that we are
partners now with Iraq.
Senator Kaine. So Iran would much rather have us be kind of
on a war footing with Iraq because that would give them the
ability to go to Iraq and say, the United States will never be
your partner.
They may, you know, say some nice words now and then, but
they are not really your partner. They have got a war
authorization against you. They are unwilling to repeal it.
What kind of a partner maintains an ongoing war authorization
against you 10 years after a war is over.
Your diplomatic work that you have done, work with Iran,
Iran, clearly, sees the U.S. relationship with Iraq is very
problematic for itself, does not it?
Ms. Sherman. Yes.
Senator Kaine. Your judgment about Prime Minister Kadhimi
in the recent meetings with President Biden and others, Iraq
really wants a strong relationship with the United States right
now because--for many reasons, including the threat they
perceive from Iran. Is that not correct?
Ms. Sherman. Yes, it is.
So I think it is very important--given that maybe the two
primary worries we have in the Middle East are Iran and non-
state terrorist groups, I think it is really important that we
send a message to Iran that the U.S. is here in Iraq and we are
partners and we are going to work together. That is the message
that we would send by repealing this, in my estimation.
Now, the other worry is non-state terrorist organizations,
including these militias that attacked the United States, but
when they attack U.S. troops, and I just want to make this
clear--when they attack U.S. troops in Iraq or Syria, we almost
have a belt and suspenders ability to go back at them.
We have the Article II power to defend U.S. troops from
attack, but also the U.S. troops that are there are there
pursuant to the 2001 authorization, the anti-ISIS mission.
Is it not the case to our lawyers if our troops are
deployed in the anti-ISIS mission and somebody attacks those
troops, the 2001 authorization also gives us the ability to
repel attacks against those U.S. forces that are deployed with
respect to the anti-ISIS mission?
Is that not the case?
Mr. Visek. That is correct, Senator.
Senator Kaine. Ms. Krass.
Ms. Krass. Yes, I agree.
Senator Kaine. So repelling non-state terrorist attacks,
including militia attacks in Iraq and Syria, the President has
Article II power and those troops deployed in the anti-ISIS
mission are also covered by the 2001 AUMF. So we have a belt
and suspenders.
We do not--I do not even know what you would have in
addition to belt and suspenders. I do not know, long johns or
something.
We have a belt and suspenders military ability to protect
the United States already with Article II in 2001. The war is
long over in Iraq. We should recognize that reality as we have
with past wars.
Thank you, Mr.--wait, I am the chair for a few minutes.
I recognize next Senator Hagerty.
The Chairman [presiding]. Enjoy it while you can.
[Laughter.]
Senator Kaine. Oh, I am not? Oh. My brief moment of fame.
Senator Hagerty. Our chairman has returned, Senator Kaine,
and I want to say a particular thanks to our chairman and
ranking member for having this important public meeting and the
classified meeting that we had, too. This is a very important
topic and I appreciate our ability to have this.
Right now, the Biden administration is continuing to
negotiate with the Iranian regime over how to revive the Iran
nuclear deal.
This is a deal that I believe is fundamentally flawed, but
more broadly, the United States and our allies in the Middle
East are also in a longer struggle with the Iranian regime over
the--whether this whole region will be dominated by the forces
of moderation and modernity or by the forces of tyranny and
terrorism.
On that score, Iran is leveraging. It is escalating its
posture against us. It is using terrorists. It is using
militants. It is using rockets and drones to attack American
personnel in Syria, in Iraq, and it has done so numerous times
since January of 2021.
It is in this context, at a time of Iranian escalation,
that the Biden administration is supporting the repeal of
Saddam-era U.S. military authorizations in Iraq, but they are
not asking for a replacement congressional authorization.
As a lifelong businessman, as a former diplomat, I am loath
to ever unilaterally take leverage off the table unless we are
getting something for it or unless we simultaneously put
another card back on the table.
I think Chairman Menendez made this point in a very salient
manner during the questioning we had in our classified
briefing.
Deputy Secretary Sherman, I was very glad to see you say in
your prepared testimony today that the Administration supports
not only repealing the Iraq authorizations, but also
``replacing them as needed with clear, narrow, and specific
frameworks'' and that is in order to ``continue protecting our
people and our interests.''
Right now, I believe updated congressional authorities are
needed precisely because terrorists and state sponsors of
terrorism are continuing to escalate attacks on Americans in
the Middle East.
The executive branch will only be in a stronger position if
Congress authorizes it to defend Americans in harm's way, and
that is why I have authored legislative language that would do
three things.
First, it would repeal the 1991 and 2002 authorizations for
use of military force in Iraq.
Second, it would authorize the President to defend our
national security interests against continuing threats that are
posed by terrorists and state sponsors of terrorism operating
in Iraq.
Third, it would authorize the President to prevent and
respond to attacks against Americans by terrorists and state
sponsors of terrorism who are operating in Iraq.
Deputy Secretary Sherman, I appreciate your acknowledgement
of the respect that the Biden administration holds for
Congress' Article I authority, and given the escalation of
events in Iran, I think it is absolutely critical that Congress
exercise its authority.
So I have a very simple question.
Deputy Secretary Sherman, will you commit to ensuring that
the Administration will provide written feedback on the
language that I proposed in advance of this committee's
business meeting on the AUMF repeal that will occur tomorrow on
Wednesday?
Ms. Sherman. Senator, we will certainly do the best that we
can to do that in a timely manner. In advance of tomorrow's
vote, though, I will say that we may not be able to do the
thorough review you would want of your legislation because we
have an interagency process when we do these reviews. We will,
certainly, do the best we can to be responsive.
Senator Hagerty. Back to our negotiating posture, again, I
am loath to remove an authority and not be prepared to put
another in its place. It is not good negotiating strategy.
That is the way I would encourage us to look at this, and
my colleagues and I would implore your team to put the time and
the effort in to provide us with feedback because I think it
would be absolutely critical.
I think it is important to put something on the table to
signal to our allies in the Middle East and to our adversaries
where we stand and that we have the resolve to defend not only
our nation's interest and our partners' interest, but also the
American people.
Ms. Sherman. Senator, I will add that we do still have the
2001 AUMF, which is focused on those counterterrorism threats,
and so we very much look forward to reviewing the legislation
you have put forth.
I do not want to leave you or anyone listening to this and
your colleagues to think that we are without tools. We have the
Article II authority that we have been discussing this morning
and we have the 2001 AUMF, which we have used both in terms of
al-Qaeda and associated forces and ISIS. So we do have those.
Senator Hagerty. Back to Ranking Member Risch's earlier
comments about communication and messaging, I think we are
talking about removing a tool right now, and again, I am loath
to remove any tool that gives us leverage at a time that the
Iranian regime is escalating its posture against us without at
least replacing it with something more focused, more current,
and more responsible.
Thank you very much.
The Chairman. Thank you.
Senator Markey.
Senator Markey. Thank you, Mr. Chairman.
I was in Congress in 1991, and we had a robust debate
around the need to give President Bush the authority to remove
Saddam Hussein from Kuwait. He received that authority.
We removed Saddam from Kuwait. That was 30 years ago. It is
ancient political history. So that 1991 authorization just has
to go.
I was in Congress in 2002 when we debated the authorization
for use of military force in Iraq. Of course, we know that the
war, ultimately, was fought on a lie that President Bush and
Dick Cheney, his entire administration, made, which was that
there were nuclear weapons in Iraq. They knew there were not.
That there were weapons of mass destruction in Iraq.
We know that they lied, and the whole premise of the war
was a big lie, that we were going in to remove nuclear weapons
and other weapons of mass destruction from that country.
So it is time for that authorization to go. What Senator
Kaine has said and others, we are now in a completely different
posture with the Iraq Government.
We are no longer at war with them. Again, that war was
based upon a complete and total fabrication, a complete and
total lie that was told to the American public with incredibly
negative consequences for so many tens of thousands of families
across our country and families in the country of Iraq as well.
So we have to move on, I think, to the conversation about
where we are today, and one of the questions I would like to
ask is that I welcome the Biden administration's announced
decision in February to end its support for offensive
operations by the Saudi-led military coalition in Yemen and for
its commitment to a political solution that ends a 6-year civil
war that has the tragic distinction of being the largest
humanitarian emergency on the planet.
However, the United States Government is continuing to
support the Saudi forces responsible for immense human
suffering in Yemen.
Ms. Krass, the United States maintains contracts with the
Saudi Royal Air Force to maintain its fighter aircraft. How
does the Administration make the distinction between supporting
offensive and defensive operations when we know that the Saudi
Air Force is carrying out strikes in Yemen using U.S.-
maintained fighter aircraft?
Ms. Krass. Senator, our armed forces are providing advice
and limited information for defensive and training purposes
only in connection with that conflict, and we are always very
mindful of legislative mandates and restrictions to make sure
that as we provide assistance to our partners that we make sure
that the law of armed conflict, you know, is appropriately
complied with.
Senator Markey. Let me ask you this question.
In Oman, I know that the Biden administration is attempting
to get the Houthis and the Government of Yemen to return to the
negotiating table.
What leverage does the United States and its partners have
to urge the Houthis to end its military offensive and return to
diplomatic talks?
Ms. Sherman. Senator, as you note, the President took a
step to end the support to Saudi-led coalition forces'
offensive actions, to basically say it is time to bring this
war to an end, given the devastating humanitarian impact that
you noted.
We do continue to believe a political solution is the only
way to resolve this and lessen the humanitarian crisis. We have
urged countries like Oman that has relations with the Houthis
to put pressure on them to, in fact, come to the table.
I was just in Oman on my latest around-the-world travels
and encouraged them to do just that. We have an envoy, Tim
Lenderking, who is just nonstop in his going to those countries
who can affect all the parties here to try to reach a political
resolution, which is the only way out of this nightmare.
Senator Markey. What success are we having in getting Saudi
Arabia and the United Arab Emirates to pay their fair share to
take care of this humanitarian crisis in Yemen?
Ms. Sherman. There is an ongoing effort to do that with
some success, but, quite frankly, Senator, the real answer to
this is the one that you were implying and that is to have a
political resolution and bring any conflict to an end.
Senator Markey. Okay. Thank you.
The Chairman. Senator Cruz.
Senator Cruz. Thank you, Mr. Chairman. Thank you to the
witnesses who are here today.
Ambassador Sherman, as you and I have discussed at length,
I have very deep concerns with the Biden administration's
approach to Iran.
I believe the Biden administration has consistently
demonstrated weakness and appeasement towards Iran, and I
believe that weakness and appeasement only invites further
conflict and further risk of loss of human life.
In the last 6 months, the Ayatollah has declared open
season on the United States and our interests. The Iranians
have attacked American forces repeatedly and killed a U.S.
military contractor.
They have tried to conduct terrorism on U.S. soil, even
going so far as attempting kidnapping of an American journalist
on American soil, sending an Iranian kidnap team to our
country.
They have launched attack after attack after attack on our
Arab allies. They have launched multiple attacks on civilian
vessels including an attack on an Israeli ship, and killed
citizens from two close U.S. allies, Great Britain and Romania.
In just the last few hours, there are reports of yet more ships
being hit by Iranian mines.
Meanwhile, the Biden administration has again and again
declined to respond to these attacks, and worse, the Biden
administration has revoked terrorism sanctions against Iran's
terrorist proxies in Yemen.
Your administration has removed Iranian officials from
sanctions. You have dialed back enforcement of oil sanctions,
including violations by the Chinese Communist Party.
You have unlocked Iranian accounts worth billions of
dollars to allow Iran to pay down debts and, pointedly, you
have repeatedly declined to respond to Iranian attacks against
our troops and have not imposed a single new sanction.
Why is it that the Biden administration has not responded
and responded forcefully to these repeated Iranian attacks?
Ms. Sherman. Senator, you and I, as you note, have an
ongoing discussion about how best to ensure that Iran does not
obtain a nuclear weapon, that it stops its state sponsorship of
terrorism, that it stops its malign behavior in the region,
that it stops putting our allies and partners at risk.
We both have the same objective, and that is to ensure that
our people and those of our partners and allies are protected,
and to ensure that Iran does not obtain a nuclear weapon and
stops its malign behavior.
So we are in agreement on the objective. We have a
disagreement about the means. I do not agree with some of what
you have put on the table. I believe the Biden administration
has had maximum sanctions.
Senator Cruz. Name one sanction you have imposed on Iran.
Ms. Sherman. We have added additional entities on an
ongoing basis as we have the evidentiary information about
those entities, but more----
Senator Cruz. Is your strategy working? Are they stopping
the attacks or are they scaling them up?
Ms. Sherman. Senator, nothing has stopped the attacks by
Iran. The killing of Qasem Soleimani did not deter the Iranians
from attacks.
Senator Cruz. Now, is the reason that you have not
responded, do you lack the authorization to respond?
Ms. Sherman. We do not lack the authorization to respond,
and the President has taken strikes, both in February and in
June, against Iranian-backed militia.
So, Senator, I think we probably will not come to an
agreement on this on how best to approach Iran, but I do
appreciate that we have the same objective.
Senator Cruz. So the debate Congress is having over the
2002 AUMF, I very much support Congress reasserting its
authority over the war-making authority of our government. I
think that is an important constitutional authority, but I
worry that this debate is occurring in the context of the Biden
administration's embrace of Iran and the Ayatollah, and that
the repeal of the AUMF will be used as justification for
continuing to go soft on Iran.
The White House has stated in a June 14 statement of
administration policy that, ``The United States has no ongoing
military activities that rely solely on the 2002 AUMF as a
domestic legal basis, and a repeal of the 2002 AUMF would
likely have minimal impact on current military operations.''
That statement uses the word ``current'' very precisely. Is
it the position of the Biden administration that the 2002 AUMF
was necessary for any of the operations against Iran undertaken
in the past 10 years?
Ms. Sherman. I can have the lawyer speak to the last 10
years. What I can say is that the strikes that were taken in
February and June against Iran-backed militia were taken
Article II----
Senator Cruz. Let me ask you specifically about the one you
referenced a minute ago, which is the attack on General
Soleimani.
Do you believe that that was legally authorized, number
one, and number two, did it require the 2002 AUMF to have
authorization?
Ms. Sherman. I was not part of that administration, but my
understanding is that Article II was used as the primary
authority for taking that strike.
Senator Cruz. What is the Biden State Department's position
now? Was that--was that strike authorized by Article II or not?
Ms. Sherman. I will defer to my----
Senator Cruz. I am asking the Biden State Department.
Ms. Sherman. I defer to the State Department's lawyer.
Mr. Visek. Good morning, Senator.
The strike on Soleimani under the last administration, as
my former colleague, who was then the acting legal advisor,
said to this committee, I would emphasize that independent of
the 2002 AUMF the president's constitutional authority under
Article II provided a sufficient basis in domestic law for the
strike.
Senator Cruz. Thank you.
Mr. Visek. So, plainly, at the time, it was thought that
the Article II authority was sufficient. The 2002 AUMF was
cited as an additional authority, which is consistent with the
way it has been articulated at least for the last 6 years.
You will recall there was--prior to the 6 years there was a
period of time where there was not a lot of military operations
in the Iraq space.
With the return of ISIS that things ramped up again and,
obviously, with respect to ISIS, we have the 2001 AUMF that
provides us authority.
Senator Cruz. Thank you.
The Chairman. Thank you.
Senator Merkley.
I will advise members there is a vote going on. At some
point, I will determine whether we recess or we can power
through.
So Senator Merkley.
Senator Merkley. Thank you, Mr. Chairman and Deputy
Secretary Sherman.
Back in 1797, John Adams was in the situation of observing
that the French were seizing U.S. commercial ships. So he
requested to Congress authorization to respond, and Congress
did not respond.
So he requested it again in 1798, and in May of that year
Congress did give him authorization and then he deployed U.S.
ships to protect our Navy ships.
In 1801, Thomas Jefferson was President and the Bey--that
is B-E-Y--of Tripoli, the ruler of Tripoli, was seizing U.S.
commercial ships in the Mediterranean. So Thomas Jefferson
asked Congress for authorization to respond, and a few weeks
later Congress did, in 1802.
So he made the request in December of 1801 and in February
1802, Congress gave that authorization. In 1815, President
Madison had the situation where the Regency of Algeria was
seizing U.S. ships in the Mediterranean, and so he sent a
message to Congress and asked for a declaration of war. In
March, the following month, Congress rejected the request for
declaration of war, but passed in legislation authorizing
responding.
Why did these three presidents not simply assert Article II
powers and proceed to deploy U.S. ships, naval ships, to
protect our commercial ships?
Ms. Sherman. Senator, my guess is you know the answer to
that better than I do. I do not know the history here that you
are citing. So I am not sure why they did not assert Article
II.
Senator Merkley. Well, I am happy to help with this little
history lesson.
Ms. Sherman. Thank you.
Senator Merkley. Because the answer is that when our
Founders wrote our Constitution, they were very, very concerned
about the use of the power of war and so they delegated that
not to the President, but to Congress, and our early presidents
took that extremely seriously.
If we fast forward to the Vietnam era, we have the conduct
of hostilities under President Kennedy, President Johnson,
President Nixon, without an authorization, which led to the
1973 War Powers Act where Congress said, stop, this is a
complete violation and we need to reseize the vision of our
Constitution in which Congress has to provide authorization as
envisioned in our Constitution, as envisioned by and acted on
by our early presidents.
However, it has proved extremely difficult to maintain that
vision, and the argument our Founders made was that the impact
of, essentially, conducting war or actions of war is so
significant that it should be entrusted to no one person, but
Article II as now interpreted asserts the opposite, that one
person can make these decisions.
We would think that the Supreme Court would play a role
here in deciding where is that balance between the
constitutional vision and the current actions, but the court
has bailed on these questions, leaving us to wrestle with this
as we are at this hearing.
So here we are, debating this question of when will the
President ask for authorization or how will the President
reinterpret existing authorization, and how does that fit with
our constitutional division of powers.
I have been extremely struck that the 2001 authorization
for the use of military force did not contain the words ``and
associated forces.''
Yet, time after time after time, the justification for
using the 2001 authorization in various parts of the world has
been because various administrations assert, we are going to
add the words ``and associated forces,'' which means there is
no limit in time, no limit in geography, and no limit in terms
of the direct involvement that was written in the 2001
authorization where it said it was specifically about groups
that planned, authorized, committed, or aided the terrorist
attacks on a specific date of September 11, 2001.
So now we have a situation where new areas around the
world, new involvement of groups we do not like, we employ
forces against and we justify it under the 2001 AUMF in part or
under Article II, but the list of groups and individuals the
executive branch considers covered by the 2001 AUMF is secret.
So I ask you this. Did Congress intend for the 2001 AUMF to
authorize secret wars?
Ms. Sherman. Certainly, Senator, AUMFs, in my
understanding, is for us to have a transparent relationship
about the threats that we are trying to address, and the Biden/
Harris administration, as we have said today, is very open and
already in discussions with this committee and with the Senate
to revise the 2001 AUMF to be narrow specific framework that
would resolve some of the concerns that you are raising.
Senator Merkley. If we were to create that specific
framework in a legislative process, we would have to,
essentially, list the places in the world that were
authorizing. Those places are currently secret in terms of the
additional information or authorizations that have been
interpreted and added.
Is there a reason then not to make those locations, those
situations, public here in the United States of America?
Ms. Sherman. My understanding, and I will defer to my legal
counsel here, is that we are obligated to report to Congress
what we are doing and that there are no secrets.
Mr. Visek. Senator, we report regularly under the War
Powers Resolution and under the----
Senator Merkley. Yes, my question was about public
disclosure, not reporting to Congress.
Mr. Visek. I think you are probably referencing, I believe,
perhaps----
Senator Merkley. I am sorry. I cannot hear you. Can you
speak up a little bit?
Mr. Visek. I am sorry, Senator. My understanding is that
certain groups may have been classified for national security
reasons, but other information is publicly available. I do not
know if my colleague----
Senator Merkley. It is not may not; may have been. They
have been, and my point is if Congress is going to have a
discussion over tailoring such a new AUMF, it becomes a public
discussion.
I guess I am asking this. Will the Administration consider
making public all the locations where they now have granted
themselves authorization to conduct military strikes?
Ms. Sherman. We are open to having that discussion with
you, Senator, but to back up what my legal advisor colleague
has said, there are situations where it may be in the interest
of our national security for those reports to come to Congress
in a classified setting.
The Chairman. Thank you.
Senator Booker.
Senator Booker. Thank you very much, Mr. Chairman. I am
grateful for the conversation we are having today and I agree
with a lot of my colleagues on their concerns about the
authorizations for military force that have been out there for
too long and the need to reform them and revoke them.
I guess I would just like to, Secretary Sherman, dig a
little deeper into our current strategy with Iraq. Last week
President Biden announced that the United States would end its
combat mission in Iraq.
Can you describe what is the strategic objectives we now
have in Iraq now that we are ending our combat mission?
Ms. Sherman. Certainly, Senator.
At the request of the Iraqi Government, we have agreed that
U.S. military forces will remain in Iraq to focus on training,
enabling, and advising our Iraqi partners.
This is not the end of our military mission in Iraq, as our
consultations with the Iraqi Government have highlighted.
The progress of our Iraqi partners in the growth of their
capabilities will allow for the full transition later this year
of U.S. and coalition forces to a mission that is focused on
training, enabling, and advisory tasks. I would defer to my DoD
colleague for any additional details.
Ms. Krass. I agree very much with that summary. Thank you.
Senator Booker. Secretary Sherman, you would agree, though,
that there has been some backlash or resistance from the Iraqi
Government about having combat troops stationed there and,
obviously notwithstanding, the more limited role of training
and advising, but in our diplomatic engagements with Iraq, they
have expressed they do not want us to have a combat mission in
Iraq.
Is that correct?
Ms. Sherman. Indeed, this came out of discussions with the
Iraqi Government and one of the points we have been making here
today is that the Iraq Government is a sovereign government
that is fully formed, that our relationship has shifted over
these decades from adversary to partner.
Senator Booker. Is the 2002 AUMF really needed to ensure
any of these strategic objectives? Is it necessary for what we
are trying to achieve in Iraq?
Ms. Sherman. It is not at all, Senator.
Senator Booker. In some ways, as I think Senator Kaine was
making the point, it could actually be problematic in terms of
Iraqi perceptions of the United States and having us label them
in this manner with these past AUMFs. Am I correct in that
opinion?
Ms. Sherman. I would agree with you, Senator. Yes.
Senator Booker. Okay. I would also like to just dig in a
little bit to the idea that two different administrations now
have pointed to more than just the AUMFs as an authorization to
use military force.
The Trump administration used sort of an expanded
interpretation to claim that the 2002 Iraq AUMF authorized its
assassination of Soleimani, and Congress, though, and many
other scholars said that the 2002 AUMF was not that broad. The
Trump administration did later say that they had other
authorities.
I just want to go back to this 2002 AUMF, which I agree
does not serve a purpose to any of our strategic objectives. It
clearly states that it is concerned with Saddam Hussein
assembling weapons of mass destruction in defiance of the U.N.
Security Council.
I guess I would like to know from the panel, do you believe
that there is a viable argument that the 2002 AUMF authorizes,
at this point, any use of force at all in terms of where things
stand today?
Do we have the cover of an AUMF to carry out military
strikes within Iraq?
Ms. Sherman. The 2002 AUMF, in our view, is not necessary
at all for our operations in Iraq.
Senator Booker. What circumstances would enable or motivate
the Administration to use that 2002 AUMF for strikes in either
Iraq or Iran?
Can it in any way be stretched or bent or made to apply to
any of our potential need for--a perceived need for conflicts
in either of those countries?
Ms. Sherman. I am going to let the lawyers answer that,
given the way you have asked the question, Senator, but I will
say that we do not have a desire for conflict with either the
Iraqi Government that is a partner, or Iran, which is certainly
not a partner.
Senator Booker. I think my time is up. Mr. Visek, I would
prefer if you do have a comment I would like to hear it and
then I will yield to Senator Schatz.
Mr. Visek. I would just say, Senator, that we do not need
the 2002 AUMF for our mission in Iraq. We have the 2001, and
for defense purposes we also would have Article II. Thank you.
Senator Booker. Thank you, Mr. Chairman.
Senator Van Hollen [presiding]. Thank you, Senator Booker.
Senator Schatz is recognized via WebEx.
Senator Schatz. Thank you, Mr. Chairman.
Secretary Sherman, war is a failure of diplomacy and the
ending of war usually requires diplomacy, and so I want to just
flag the fact that we have not passed the State Department
Reauthorization Act since 2003.
So there is no real way for us to dial up or down resources
or authorize new programs to meet our diplomatic objectives, to
work with the Defense Department on our strategic military
objectives.
So can you talk about what it would be like if Congress
passed an annual State Department Reauthorization Act as we do
for the National Defense Authorization Act, and how that
impacts this overall debate?
Ms. Sherman. Thank you very much, Senator, and thank you
for your support for diplomacy, which we always believe should
be the first resort and that any use of our military should be
the last resort in solving problems.
I actually have been in government at a time when there has
been a State authorization bill and it creates the contours and
deepens the authorities that we have to engage in diplomacy
around the world. So we would always welcome Congress' role in
that regard.
Senator Schatz. Well, you know, Senator Sullivan was a
leader in getting the Coast Guard reauthorization to sort of
hitch a ride on the defense authorization. I think that is
something we ought to consider for the next defense
authorization.
Secretary Sherman, I also want to follow up on the NDAA and
ask why we should not just sunset every AUMF in every defense
authorization. I understand military leaders being concerned
about geographic and time constraints so that our enemies can
work around them.
If it is a matter of course that Congress sunsets every
authorization of the use of military force and it is a matter
of course, therefore, that we reconsider it and reauthorize
every year, that would change the way we do our oversight and
reassert our constitutional authority.
So why not just sunset every AUMF on an annual basis and
then force Congress to do its job on an annual basis?
Ms. Sherman. I think I will leave that to the discretion of
the United States Senate, though Ms. Krass may have a comment
she wants to make on that in terms of what it would mean for
our military forces.
Senator Schatz. Feel free.
Ms. Krass. Senator, I think that there could be some
challenging operational impacts of establishing a rhythm like
that.
Senator Schatz. I have heard that, and I guess I want to
press back a little bit because the challenging operational
impacts with a rhythm like that is really the reason that we
have not even seriously considered amending or repealing either
of these AUMFs in the longest period of time in American
history.
So how can we address those legitimate concerns that you
are sort of obliquely referring to without just abandoning our
responsibility?
Ms. Krass. We support the conversations that Deputy
Secretary Sherman has been discussing in terms of executive
branch and congressional conversations about how to replace,
for example, the 2001 AUMF with something more now and
specific, and we look forward to continuing those conversations
with you and your colleagues.
Senator Schatz. Thank you.
Secretary Sherman, as you know, the nature of war is
changing with a keystroke. A foreign adversary can have a
greater negative impact, even a violent impact, on the United
States than had they mobilized tanks and troops and airplanes.
I am wondering how we address this new reality in the
context of a statute that did not really contemplate anything
other than traditional kinetic engagement.
So how do we define war under the War Powers Resolution or
how do we interpret the definition of war under the War Powers
Resolution in an era with cyber-attacks and in an era where we
know many of our adversaries are operating in the gray zone?
Ms. Sherman. Yes, some of your other colleagues have raised
cyberspace and its impact on both terrorist threats as well as
the nature of war, so to speak.
I think we are all contemplating these new issues and these
new domains and arenas. Indeed, we now have a new domain in the
Defense Department with Space Force.
So we are always thinking about how we have to update how
we proceed in the world, given these new threats.
In terms of what that means regarding law and war, I would
defer to my legal counsel here about how they would view that,
going forward.
Senator Schatz. Go ahead.
Mr. Visek. Well, Senator, as I think you probably realize,
this is an extraordinarily complex issue. Without a doubt, it
is a cyber and what has been loosely defined as cyber war and
how it relates to the law of armed conflict is a matter of
intense discussion and examination in the interagency.
Obviously, if a foreign state uses cyber in a way that
amounts to a use of force that would be an object of concern
and under international law, but it is such a vastly
complicated area that I, for one, would want to sit down and
talk with the interagency colleagues in a studied way to
address your concerns, which I think are a hearing unto
themselves, not that I am inviting----
Senator Schatz. Sure. Two final thoughts here. What
constitutes a use of force is, basically, the crux of the
question, and the second final thought is that this is really
Congress' role to define the use of force, given that there are
new ways to use force that were not contemplated under the old
statute.
Thank you.
Senator Van Hollen. Thank you, Senator Schatz, and let me
thank all of our witnesses for their testimony.
Madam Secretary, I am going to start with you, and if you
want to refer any of these questions to your legal counsel,
please feel free to do so.
I want to associate myself with the comments I heard
Senator Kaine make and you, Madam Secretary, in your response
that getting rid of the 2002 AUMF is important to send a
message to the Iraqi people and the Iraqi Government that we
are partners and not adversaries, as we were with the
government that was there under Saddam Hussein at the time that
authorization was passed.
Some questions just so I understand this administration's
thinking. Would you agree, Madam Secretary, that other than the
president's powers under Article II, the president does not
have authority to launch military strikes against Iran?
Ms. Sherman. I take that as a legal question. So I am going
to defer to Mr. Visek and to Ms. Krass.
Senator Van Hollen. Mr. Visek.
Mr. Visek. Thank you, Senator. Our position is the 2002
AUMF does not authorize strikes against Iran. Not to confuse
this, I would note, however, that I believe it may have been
Senator Kaine who talked about ancillary defenses where if we
were carrying out a 2001 operation and came under attack by
whatever force it might be that was not the subject of a 2001
mission, we would, obviously, be able to defend ourselves in
the context of operating----
Senator Van Hollen. Just so I understand, you are saying
that you are invoking an other than Article II power there----
Mr. Visek. It would be----
Senator Van Hollen. --under the 2001 AUMF? Is that what you
are suggesting?
Mr. Visek. It is the concept of ancillary self-defense that
when our military engages in authorized missions, this instance
would be a 2001 AUMF mission against, let us say, ISIS. If they
came under attack from whatever source collaterally they
would----
Senator Van Hollen. So I am not--look, it is a pretty
direct question. I understand that legal responses can be
technical. I am an attorney, but we have--the 2001 AUMF is, as
you well know, as has been stated here, relates to ISIS and its
successors, right. Iran is not ISIS or one of its successors,
is it?
Mr. Visek. No, it is not, and----
Senator Van Hollen. Okay. So other than Article II, does
the President have any authority to launch military strikes
against the state of Iran? Pretty simple question.
Mr. Visek. Senator, the 2001 does not authorize strikes
against Iran. I would agree with that. Nor does the 2002
authorize strikes against Iran.
Senator Van Hollen. Correct. So are there any authorities
left other than Article II?
Mr. Visek. Senator, with the caveat of what I--what I admit
is a sort of nuanced ancillary defense argument. I take your
point. Neither the 2001 nor the 2002 nor the 1991 AUMFs
authorize the use of force against Iran.
Senator Van Hollen. Got it. Okay. I did not think it would
take so much time to get to this point. So with your
indulgence, I am going to keep asking some additional
questions.
Now I am trying to explore what the President believes is
his scope of authority under Article II, and, of course,
presidents do you have the authority to take preemptive strikes
in the case of an imminent attack. Agreed?
Mr. Visek. Yes, Senator.
Senator Van Hollen. Okay. You are familiar with the
Caroline doctrine that was reaffirmed by the Nuremberg Trials
after World War II, correct?
Mr. Visek. I am familiar with the Caroline case that goes
back to 1837.
Senator Van Hollen. Does this Administration, the Biden
administration, subscribe to the standard regarding preemptive
attacks that is laid out in the Caroline doctrine?
Mr. Visek. Senator, I would want to consult with my
colleague here from DoD. I would have to talk to others. This
is not a question that I necessarily came equipped to answer
and I would desperately like to get it right.
Senator Van Hollen. All right. Counsel from Defense? Thank
you.
Ms. Krass. I, similarly, would like to get it right, and I
joined the Administration just this week and so I would want to
have those conversations as well.
Senator Van Hollen. All right. If you could get back to me
in writing, because, as you know, in past administrations we
have had the theory of preventative war, which does not contain
the important ingredients of imminence that is in the Caroline
doctrine.
So I am very interested in understanding what the Biden
administration's position is with respect to the Caroline
doctrine.
Mr. Visek. Well, Senator, we do have the authority to
respond to an imminent threat, but I take your point and that
you are interested in other----
Senator Van Hollen. I am not disputing that. I am stating
that. I am asking whether your definition of that standard is
the Caroline doctrine.
If I could just ask a couple questions regarding the attack
on the Mercer recently, which is, I understand it, is a
Japanese-owned ship under Israeli management and two innocent
people were killed, a British citizen and a Romanian citizen.
I saw the secretary, Secretary Blinken's response, saying
that we were going to hold Iran responsible and accountable. I
agree they should be held accountable.
My question, Madam Secretary, is not what you will do, not
what you may do, but what you believe you have the scope of
authority to do.
Does Article II give the President any authority to take
military action against Iran in response to the attack on the
Mercer?
Ms. Sherman. I would have to defer to Mr. Visek or Ms.
Krass as a legal matter.
What I want to say, though, is that in this instance, as
the secretary said, we are really relying on our British
colleagues to take the lead on this since it is, in fact, their
ship even though it was originally Japanese, and because a U.K.
and a Romanian citizen were killed.
So we are letting the British take the lead both at the
U.N. in terms of what the response would be as well as any
further response. I do think it was quite critical that we had
a coordinated attribution that this was, indeed, Iran.
Senator Van Hollen. Okay. Let me just refine that question
a little bit, if I could, Mr. Chairman.
With respect to the--here we have a partner. We have a NATO
partner, of course, the British, but it does not seem to fall
under an Article II response authority other than maybe
invoking some other multilateral agreement like NATO charter or
some U.N. Security Council resolution.
I am trying to get a sense of what the Administration
believes its authorities are in terms of military response in a
strike like this against a non-U.S. entity, but a close U.S.
friend.
Mr. Visek. Senator, subject to my colleague's views, this
would be a situation where we would assemble with the
interagency, we would talk about the facts, the circumstances,
such factors of attribution, any of a number of factors before
I would even want to venture an opinion as to whether or not
there was an Article II basis and, obviously, we would look to
the Department of Justice Office of Legal Counsel.
I am not aware of any. Nobody has asked me whether this is
covered by Article II as of yet, if that is helpful.
Senator Van Hollen. Got it. Thank you. That is.
Mr. Chairman, do you want to make any closing remarks?
Okay.
The Chairman [presiding]. Thank you. Thank you for
presiding.
There is, obviously, a robust interest as is evidenced by
the fact that an overwhelming majority of the members on both
sides of the aisle have actually attended this hearing at one
point or the other. So it speaks to the importance of the
issue.
We appreciate the insights of this panel, Madam Secretary,
and your distinguished colleagues, in trying to shed light on
the issues that we are in the midst of deciding on, and the
committee will hold a markup tomorrow on the 1991 and 2002 and
we will see how the votes are cast there.
Then we will continue to engage the Administration, which I
want to acknowledge, again, has been engaged to the national
security advisor and others into what such a replacement might
look like if the Congress were to go ahead with a repeal.
So this hearing's record will remain open to the close of
business today, and with the thanks of the committee, this
hearing is closed.
[Whereupon, at 12:39 p.m., the hearing was adjourned.]
----------
Additional Material Submitted for the Record
Responses of Richard Visek to Questions
Submitted by Senator Chris Van Hollen
Question. Does the Administration subscribe to the Caroline
doctrine's standard for the permissible use of force in anticipatory
self-defense against an imminent threat? If not, in the opinion of the
Administration, what criteria must be met to justify anticipatory self-
defense under the President's Article II authority?
Answer. As the executive branch articulated in its 2016 Report on
Legal and Policy Frameworks Governing Use of Force and Related National
Security Operations, under the jus ad bellum, a State may use force in
the exercise of its inherent right of self-defense not only in response
to armed attacks that have already occurred, but also in response to
imminent attacks before they occur. When considering whether an armed
attack is imminent under the jus ad bellum for purposes of the initial
use of force against another State or on its territory, the United
States analyzes a variety of factors. These factors include the nature
and immediacy of the threat; the probability of an attack; whether the
anticipated attack is part of a concerted pattern of continuing armed
activity; the likely scale of the attack and the injury, loss, or
damage likely to result therefrom in the absence of mitigating action;
and the likelihood that there will be other opportunities to undertake
effective action in self-defense that may be expected to cause less
serious collateral injury, loss, or damage.
______
Responses of Caroline Krass to Questions
Submitted by Senator Chris Van Hollen
Question. Does the Administration subscribe to the Caroline
doctrine's standard for the permissible use of force in anticipatory
self-defense against an imminent threat? If not, in the opinion of the
Administration, what criteria must be met to justify anticipatory self-
defense under the President's Article II authority?
Answer. As the Executive Branch articulated in its 2016 Report on
Legal and Policy Frameworks Governing Use of Force and Related National
Security Operations, under the jus ad bellum, a State may use force in
the exercise of its inherent right of self-defense not only in response
to armed attacks that have already occurred, but also in response to
imminent attacks before they occur. When considering whether an armed
attack is imminent under the jus ad bellum for purposes of the initial
use of force against another State or on its territory, the United
States analyzes a variety of factors. These factors include the nature
and immediacy of the threat; the probability of an attack; whether the
anticipated attack is part of a concerted pattern of continuing armed
activity; the likely scale of the attack and the injury, loss, or
damage likely to result therefrom in the absence of mitigating action;
and the likelihood that there will be other opportunities to undertake
effective action in self-defense that may be expected to cause less
serious collateral injury, loss, or damage.
______
Responses of Wendy Sherman to Questions
Submitted by Senator Mitt Romney
Question. Thank you for your candid discussion with me today during
the Senate Foreign Relations Committee hearing on ``Authorizations of
Use of Force: Administration Perspectives.'' During the Senate Foreign
Relations Committee hearing on ``Authorizations of Use of Force:
Administration Perspectives,'' I asked you whether there are other
authorizations for the use of military force (AUMFs) out there that
have not been repealed. Would you review and, if necessary, clarify the
record on the number of AUMFs currently in existence that have not been
repealed?
Answer. I understand that the following statutory authorizations
for use of military force (AUMFs) have not been repealed to date and
remain in effect: P.L. 85-7, Section 2 (also known as the ``1957
AUMF''); P.L. 102-1 (also known as the ``1991 AUMF''); P.L. 107-40
(also known as the ``2001 AUMF''); and P.L. 107-243, (also known as the
``2002 AUMF'').