[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

                               __________



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             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

                              ----------                              
                                                                   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'').