[Congressional Record Volume 163, Number 176 (Tuesday, October 31, 2017)]
[Senate]
[Pages S6894-S6896]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                Authorization for Use of Military Force

  Mr. KAINE. Mr. President, I rise to speak on a topic I have often 
spoken about on the floor.
  We have been at continuous war since September 14, 2001, when 
Congress passed an Authorization for Use of Military Force to go after 
the perpetrators of the 9/11 attacks. That was 16 years, 1 month, and 
18 days ago as of today.
  The war in Afghanistan is the longest armed conflict in America's 
history, and it shows no signs of abating, even 6 years after the death 
of Osama bin Laden. The conflict has been going on for so long that 
many are somewhat immune to it. I heard a high schooler recently say: 
War is all I have ever known. It is the status quo. It is the 
background music to daily life.
  Yet only 0.4 percent of the population of the United States serves in 
the military. That is down from 1.8 percent in 1968 and 8.7 percent in 
1945, so it is increasingly unlikely that many of us even know those 
who are deployed and fighting in this ever-expanding global conflict.
  Sadly, last week, for tragic reasons, these issues were brought to 
the forefront with the death of four brave American servicemembers in 
Niger: Army SGT La David Johnson, SGT Bryan Black, SGT Jeremiah 
Johnson, and SGT Dustin Wright.
  Two of those killed--the two Sergeants Johnson--were part of a 12-man 
patrol whose mission is not clear. We know that their trained military 
occupational specialties--vehicle mechanic and chemical-biological 
specialist--were outside traditional combat roles.
  In a June war powers letter, the Department of Defense described the 
mission of over 645 military personnel in Niger as ``advise and 
assist,'' but none of the varying accounts of what took place in early 
October seem to support that seemingly benign summary of what occurred.
  Frustration over this lack of understanding of that mission and the 
events that transpired were shared by everyone from Secretary Mattis to 
all the Members here. I can't imagine what the servicemembers on duty 
and their families must be feeling. We see the strain that an ever-
expanding operational commitment is having on our

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military, from our servicemembers relying upon foreign countries or 
contractors to provide critical air support where servicemen are 
stranded on the battlefield for over a day, to our warships, for which 
schedules have been so strained that their crews are unable to safely 
navigate international waters.
  Being a Senator from Virginia, a State with one of the largest 
military presences that is home to tens of thousands of servicemembers 
and their families, I have a personal responsibility to ensure that 
these strains don't lead to any more tragic mistakes.
  The attack in Niger has also laid bare other issues: how little 
information is provided to Congress about U.S. troops deployed abroad 
equipped for combat; how little Congress exercises the authority and 
oversight of these issues and demands information to debate before the 
public; and the possible ``mission creep'' and growth of military 
forces in Africa--an increase by a factor of 17 over the past decade--
in which hundreds of missions are being run daily in over 20 countries 
where there is no specific authorization for use of military force 
provided by Congress. The Niger operation really identified a gray area 
between advising and assisting in combat operations, which keeps some 
deployments just beyond the tripwire of requiring congressional 
notification.
  SASC held a briefing last week with the Department of Defense to try 
to understand the scope of the Niger mission, the reason for the 
escalation of our footprint, and why this surprising attack left our 
troops without support for so long.
  But beyond the immediate tactical answers, we need a strategic and 
fundamental understanding of how and where this country engages in 
military operations and if the war on terror has become the ``forever 
war'' with ever-changing objectives and no end in sight, absolving the 
need for Congress to weigh in and speak.
  Yesterday, in Foreign Relations, we held a much overdue hearing on 
legal authorization for military force. We heard solid testimony and 
straightforward answers by Secretaries of State Tillerson and Mattis. I 
am encouraged that we had the hearing, and I am encouraged that our 
chair, at the end of the hearing, expressed the desire to move forward 
to finally, after 16-plus years, engage in a debate and a congressional 
vote on war authorization.
  I was disappointed that the two Secretaries, who were being candid, 
took the position that the Trump administration needs no more legal 
authority to do what they are doing. But I have to acknowledge the 
position they take is actually the position that the Obama 
administration took, and it is exactly the position that the Bush 
administration took, so I was not completely surprised. In fact, we 
shouldn't be surprised when the administration says: We don't need any 
more authority. But of course, we are not playing ``Mother May I'' on 
this question. It is Congress's role, pursuant to article I, to declare 
war.
  I disagree with the legal analyses offered by all three 
administrations. I was tough on President Obama about this, as well, 
that the 60-word authorization from 2001 covers military action all 
over the globe. But there is some legal dispute about the question, 
still.
  Beyond the legal question, there are also questions of moral 
authority, political authority, and the abdication of responsibility in 
this body. Seventy-five percent of the Members of Congress today were 
not even here when the 2001 authorization was passed and, thus, have 
never had to cast a vote on it, even as our men and women risk their 
lives and, in some instances, are killed in action.
  Simply put, the 2001 AUMF has become a golden ticket that justifies 
U.S. military action against terrorist groups all over the globe 
without the need for additional congressional approval. I am not 
surprised the Executive wants to keep it that way. Who wouldn't prefer 
such flexibility? But we have a job to do.
  Here is what we need to do. This is what I think needs to happen. We 
need to end the legal gymnastics with the 2001 AUMF--a 60-word 
authorization against the perpetrators of 9/11. Applying that now to 
the fight against ISIL, Boko Haram, and others is a stretch. The AUMF 
outlines the focus of military action as follows: ``Nations, 
organizations, or persons [the President] determines planned, 
authorized, committed, or aided the terrorist attacks that occurred on 
September 11, 2001, or harbored such organizations or persons.''
  There were 19 hijackers for the 9/11 attacks, and we have now used 
the 2001 AUMF in 37 instances to send forces prepared for combat and 
engaged in combat to 14 nations, including Libya, Turkey, Georgia, 
Syria, Iraq, Afghanistan, Yemen, Eritrea, Ethiopia, Djibouti, Somalia, 
Kenya, the Philippines, and Cuba.
  Were all of these instances and nations and places really associated 
with planning or support of the attacks of 9/11? These legal 
interpretations are in addition to now countless ``train and advise'' 
missions around the world, to include those that took the lives of the 
four servicemembers in Niger.
  This was not an unforeseen combat environment. I found this 
interesting. In April of 2014, the U.S. Government--the Department of 
the Navy--solicited contractual bids for ``Personnel Recovery, Casualty 
Evacuation, and Search and Rescue,'' aviation support in ``at risk'' 
environments in the following 14 countries: Algeria, Burkina Faso, 
Chad, Libya, Mali, Morocco, Niger, Nigeria, Cameroon, Cote D'Ivoire, 
Ghana, Benin, Togo, Tunisia and as directed by operational 
requirements. Only 5 of those 14 countries have ever been notified to 
Congress, pursuant to war powers letters, but we are planning to engage 
in casualty evacuation in connection with high-risk activities in all 
of these countries in Africa.
  I would like to have a process that informs Congress--and informs the 
public--that is equal in transparency to what we put in contracting 
documents to inform military contractors. So Senator Flake and I have 
introduced an authorization for military force intended to keep the 
Congress and the American people not only informed of our military 
operations but also engaged in carrying out our constitutional duty. 
The intent is to recognize the fluid environment in which our military 
must operate to implement the counterterrorism campaign.
  Terrorist organizations don't necessarily operate in just one 
country. They don't follow Geneva Conventions. It is a different kind 
of military action, but the requirement for congressional approval is 
no less important. We need to make our legal authorities, which are now 
dated, current and appropriately scoped.
  I applaud my Foreign Relations chair, Senator Corker, who, after the 
hearing yesterday, said that we would move to a markup and clearly, I 
suspect, an amendment of the proposal Senator Flake and I have put on 
the table. We have done a lot of work on it. A war authorization should 
be bipartisan. If anything in this body should be bipartisan, I think a 
war authorization should be. We don't pretend that we have thought of 
everything; we don't pretend that the bill cannot be improved.
  In conclusion, I want to make a few comments. This week, the New York 
Times reported that President Trump has approved--without providing 
Members of Congress any information on why these changes are 
necessary--changes giving the Department of Defense and the CIA more 
latitude in pursuing ``counterterrorism drone strikes and commando 
raids'' against Islamic terrorist groups scattered across the world, 
all while using the 2001 AUMF as its legal justification. This 
expansion of war will only continue to magnify and mutate and will do 
so without public scrutiny, unless and until Congress steps up to 
provide the oversight and legal authority we are required to do.
  I have come to the floor of the Senate since I came here in 2013 to 
speak about war powers, to speak about a need to revise the War Powers 
Resolution of 1974, to critique and challenge President Obama around 
the Libya mission, which had no vote from Congress, and to critique 
President Obama--who is a personal friend--over the offensive campaign 
against ISIL without requiring a congressional vote. Since I was clear 
and repetitive in my critiques of President Obama for using war powers 
without Congress being involved, I am going to do the same with respect 
to President Trump.

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  At the end of the day, my critique is more about this body. An 
Executive will overreach. An Executive will act, but that does not 
excuse inaction in this body.
  I do worry about a progressive loosening of the rules from the Bush 
administration to the Obama administration to the Trump administration, 
which eventually has turned the 2001 AUMF into a golden ticket that 
allows for action against nonstate terrorist groups anywhere in the 
world on a Presidential say-so.
  We shouldn't take our institutions and, frankly, the fairly radical 
rebalancing of powers in the Constitution for granted. When Madison and 
the other drafters put the declaration of war authority in the hands of 
Congress, they knew they were doing something pretty radical. They knew 
the world of the day--1787, 230 years ago last month--was a world of 
Kings, Emperors, Monarchs, Sultans, and Popes. War was primarily for 
the Executive, but they decided they wanted to do something different. 
Ten years after the Constitution was done, Thomas Jefferson, as 
President, was grappling with a nonstate terrorist group in Northern 
Africa--the Barbary Coast pirates--and what could be done about them? 
He wrote a letter to James Madison and asked what was behind the war-
making powers in the Constitution's article I. Madison described it 
very well. He said: Our constitution supposes what the history of all 
governments demonstrates, that it is the Executive most interested in 
war and, thus, most prone to war. For this reason, we, with studied 
care, granted the question of war in the legislature.
  They were trying to change human history. They were trying to say 
that we shouldn't be at war unless there was a legislative, collective 
judgment--not 116 years ago by 25 percent of the people who were there 
then, but a legislative, collective judgment expressed in an 
authorization that we should be in war. We are lacking that now.
  It is not hard to imagine a future President, whether it is President 
Trump in the remainder of his term or Presidents in the future, using 
the expanding war authorities to increasingly justify initiating war 
without the permission of Congress.
  We asked President Trump for the legal authority justifying the 
Syrian missile strike on Syria that he made in March, and they have not 
yet provided an answer about their legal authority. What Congress has 
done is basically told Presidents: You can do whatever you want. That 
has a way of creeping and growing, and I think it already has. I think 
the American people deserve better, but, especially, our troops deserve 
better.
  I have said it before; I will say it again. I can't think of anything 
more publicly immoral--public, civic immorality--than ordering troops 
to risk their lives and be killed, as the four were in Niger, while 
Congress is unwilling to cast a vote because this would be a 
politically difficult vote: I would rather not vote; I would rather 
make the President do it and blame the President if it works out badly. 
A political calculation has caused Congress to abdicate a 
responsibility while others are shouldering the burdens of 
responsibility--and even losing their lives in the process.
  Finally, Senator Jacob Javits wrote a book in 1973 entitled ``Who 
Makes War'' after Congress passed the War Powers Resolution during the 
Vietnam war. He offered a very prescient commentary. I will close here:

       Many advocates of presidential prerogative in the field of 
     war and foreign policy seem to be arguing that the 
     President's powers as Commander in Chief are what the 
     President alone defines them to be. The implication that the 
     Presidency is beyond the range of congressional authority to 
     check in the exercise of the war powers raises a serious 
     constitutional danger. If we accept such a view we accept a 
     situation in which the American people are dependent solely 
     on the benign intent and good judgment of the incumbent 
     President. We may not always be fortunate enough to see a 
     person with such qualities in the White House.

  With that, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Cruz). The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. THUNE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. THUNE. I ask unanimous consent that I be able to speak until such 
time as my remarks are concluded.
  The PRESIDING OFFICER. Without objection, it is so ordered.