[Congressional Record Volume 163, Number 182 (Wednesday, November 8, 2017)]
[Senate]
[Pages S7072-S7073]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                Authorization for Use of Military Force

  Mr. FLAKE. Mr. President, the Senate Foreign Relations Committee had 
a very important hearing last week regarding the 2001 authorization for 
use of military force, the law that serves as the legal underpinning 
for the war against al-Qaida and the Taliban. I am grateful to our 
witnesses, Secretaries Mattis and Tillerson, for making themselves 
available to the members of the committee and for the straightforward 
and honest answers they provided to us.
  As we have gotten further and further away from the September 11 
attacks that resulted in the passage of the 2001 AUMF, I have urged 
Congress to take a fresh look at that authorization. When four soldiers 
died recently in Niger, I think most Americans--and even some Members 
of Congress--were shocked to learn that we even had troops in that 
country. Our troops were not there under the auspices of the 2001 AUMF, 
but considering that they were reportedly ambushed and killed at the 
hands of an Islamic State affiliate, questions have been raised about 
where our forces are and where they are at war with terrorists versus 
when they are simply conducting train-and-equip or other missions of 
that sort.
  It was encouraging that nearly every member of the Foreign Relations 
Committee was in attendance at that hearing where the witnesses 
testified that the administration believes it has ample authority to 
prosecute the war on terrorism and does not need a new AUMF.
  I can't say I was surprised to hear that testimony. No 
administration, Republican or Democratic, will ever willingly cede the 
broad authority given to the executive branch 3 days after the 
September 11 attack. If they were to say that we need new 
authorization, they would be conceding that they haven't been acting 
with authorization all this time. So they are never going to say that 
we need a new AUMF.
  What has surprised me is that there are Members of this body, the 
Senate, who are content to let this 16-year old authorization remain in 
place. Some have even suggested that any updates to the AUMF can be 
made using the appropriations process. Are we really going to start 
using policy riders on annual spending bills to approve of sending 
troops into harm's way? We rarely even vote on individual spending 
bills anymore, let alone controversial policy riders to those spending 
bills. Are we truly willing to leave it to the members of the 
Appropriations Committee to update a law that has put our 
servicemembers into harm's way, particularly those of us on the 
authorizing committee, the Senate Foreign Relations Committee? I hope 
that we more jealously guard our prerogatives than that.
  Our inaction on updating the 2001 law has already relegated the role 
of the Senate in authorizing force to that of a cog in the feedback 
loop. I would submit that we in the Senate ought to aspire to be more 
than that.
  For 16 years, Congress has been all too willing to let successive 
administrations use those broad authorities to address new threats and 
to deploy U.S. troops to new places. Beyond Afghanistan, our troops 
have deployed all over the world, to places such as Yemen, the 
Philippines, Somalia, and Libya to fight al-Qaida and its affiliates.
  We have also sent forces to Syria and back to Iraq to defeat ISIS, a 
group that didn't even exist in 2001. We need to fight terrorism 
overseas, and I am not suggesting that the United States should shy 
away from these battles. To the contrary, I believe Congress should do 
its duty in supporting these missions by voting to authorize them.
  In the 16 years since the passage of the 2001 AUMF, approximately 300 
Members of the House who voted on it are no longer with that Chamber. 
In the Senate, of those Senators who voted on the original AUMF, only 
23 Senators remain in their seats today. That leaves approximately 70 
percent of the entire Congress that has never cast a vote to authorize 
military force abroad. Yet, over the years, deployments have continued 
to new places, combating new foes.
  The United States is strongest when we speak with one voice. 
Therefore, Congress must have some buy-in on these missions. Our allies 
and other adversaries need to know that the war on terrorism has the 
support of Congress. More importantly, our troops need to know that 
Congress is behind them.
  I know the concept of passing a new, updated AUMF is a tricky one. 
This is not a conventional war against a sovereign nation in which 
victory is easily defined. Instead, we are fighting an ideological 
enemy that has no sovereignty and which, over the years, has moved all 
over the world, resulting in many splinter factions that could change 
their name at any time with ease.
  This new kind of war requires a new kind of authorization, one that 
allows Congress's continued buy-in and increases its oversight. Right 
now, we have neither of these.
  After working on this issue for several years, Senator Tim Kaine and 
I have introduced legislation that we think gets us in the right place. 
Our bill would authorize the use of military force against al-Qaida and 
the Taliban

[[Page S7073]]

and ISIS. It authorizes force against affiliates of those groups and 
requires the President to report to Congress when he initiates force 
against a new group he designates as being associated with al-Qaida, 
the Taliban, or ISIS. Military operations can begin as soon as the 
President has notified Congress. There is no time-lapse required.
  If Congress doesn't agree with the President's designation, our bill 
allows a 60-day timeframe during which any Member can bring a 
resolution of disapproval to the floor under expedited procedures, and 
adoption of such measure by both Houses would result in the end of 
military operations against that group.
  Our bill adopts the same process with regard to geography to allow 
Congress to disapprove of military operations in a particular country. 
I recognize that traditional declarations of war and other 
authorizations of military force haven't referred to a particular 
geographic area in which operations can take place. But all of our 
previous military engagements were against sovereign nations with armed 
forces, not terrorist groups that can pop up in any country at any 
time.
  If Congress is going to authorize the use of force, we ought to know 
in which countries U.S. troops are operating. Requiring the President 
to notify Congress when he begins operations against one of these 
terrorist groups in a new country is an important check on the 
executive branch to ensure there is no overreach.
  The bar for disapproving the President's decision is high--
appropriately so. It would require two-thirds of the House and the 
Senate to disagree with the President on his decisions with regard to 
new associated forces or new countries.
  Right now, Congress has very little to say over who or where our 
military fights. The only option available is to cut off 
appropriations, and history has demonstrated that simply is not 
realistic or appropriate.
  The most recent example of this, as some of my colleagues will 
recall, was in 2011, when the Obama administration joined the NATO 
operation to help rebels in Libya topple Muammar Qadhafi. The 
administration never made the case to Congress as to what U.S. 
interests were served by U.S. involvement. As a result, many Members on 
both sides of the aisle publicly opposed our intervention in Libya.
  Yet, when the clock ran out on the time constraints set forth in the 
War Powers Resolution, Congress did not turn off appropriations because 
we can't just pull the rug out from underneath servicemembers when they 
are in harm's way overseas. The ``turning off appropriations'' approach 
simply hasn't worked in the past and is not likely to work in the 
future.
  We need real congressional buy-in and oversight over a conflict that 
has morphed considerably since 2001--and which we are now being told is 
morphing to a new continent. S.J. Res. 43 gives us just that.
  I should note that the bill also includes a 5-year sunset. The sunset 
is not intended to serve as a notice that the war on terrorism will end 
in 5 years. It is there to require Congress to put its skin in the game 
by voting on authorizing force.
  The administration has signaled its objection to this provision. They 
think that the war on terrorism could be undermined if terrorists think 
they just have to wait us out.
  I worry more that the lack of congressional buy-in undermines the war 
right here at home. Seventy percent of Congress has no skin in the game 
at all. We are free to criticize the President, whether the President 
is Republican or Democrat. That is not right.
  We ought to have responsibility here. We are the article I branch. We 
are the branch tasked with declaring war and authorizing use of force. 
We shouldn't shirk our responsibility. We can't let history repeat 
itself and go for another 16 years without voting for the use of force 
against terrorists. That is why I support a sunset on any new or 
updated AUMF.
  Perhaps the best feature of the Flake-Kaine measure is that it is 
bipartisan. That is an essential feature. I think we can all agree that 
passing an updated AUMF along party lines is perhaps the only thing 
worse than letting the status quo remain. I commend the chairman of the 
Foreign Relations Committee, Senator Corker, for signaling that we will 
move ahead with the markup of the new AUMF.
  I think Flake-Kaine is a great start, but I am under no illusion that 
the process of putting a bill together that can garner widespread, 
bipartisan support will be an easy one. But the longer we wait, the 
higher the risk becomes that we will render ourselves irrelevant when 
it comes to authorizing force. That is a risk the Senate and Congress 
should not take.
  I yield back.