[Congressional Record Volume 165, Number 109 (Thursday, June 27, 2019)]
[Senate]
[Pages S4621-S4622]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   NATIONAL DEFENSE AUTHORIZATION ACT

  Ms. HIRONO. Mr. President, today I wish to discuss Senate amendment 
No. 861, offered by our colleague from Utah.
  The author of the amendment, Senator Romney, and others have made 
clear that this language does not constitute an authorization of the 
use of military force, or AUMF. I agree with that assessment.
  While this amendment appears to restate existing Presidential 
authority to defend the country in the event of an attack, it includes 
other language that could be interpreted to provide more authority to 
the President. That concerns me, which is why I voted against this 
amendment.
  Ms. DUCKWORTH. Mr. President, amendment No. 861 fully captures the 
utter failure of the modern Congress to assert and defend congressional 
war powers that the U.S. Constitution solely vests in the legislative 
branch. It treats matters of life and death as mere fodder for 
political ``gotcha''

[[Page S4622]]

votes and represents an approach to legislating that is ultimately as 
simplistic as it is dangerous.
  If one asked 10 attorneys to analyze the text of amendment No. 861, 
one might very well receive 10 wildly different interpretations of what 
the undefined terms in the amendment mean, from the use of the term 
``attack by the government, military forces, or proxies of a foreign 
nation or by other hostile forces'' to the phrase ``used to ensure the 
ability of the Armed Forces of the United States to defend themselves, 
and United States citizens.''
  As the authors plausibly argue, the intent of the amendment may very 
well be to simply reaffirm existing legal interpretations and norms 
that authorize the U.S. Armed Forces to defend itself and our citizens 
against attack by a foreign nation or other hostile force. As 
supporters argue, the amendment language avoids using the specific 
phrase ``authorization for use of military force,'' and thus one may 
argue that it is technically not an ``AUMF.''
  Yet adopting such an interpretation requires ignoring years of 
executive branch overreach when it comes to taking unilateral military 
action without seeking an authorization for use of military force or a 
declaration of war from Congress.
  It requires willfully forgetting the behavior of our current 
President and past Presidents of both parties, who have chosen to 
define the concept of Commander in Chief under Article II of the U.S. 
Constitution to be less a commander and more an emperor while the 
legislative branch has sat idly by as its war powers were rapidly 
seized by the modem imperial Presidency.
  Congress is a coequal branch of government. It is time we started 
acting like it. We cannot trust any President to take a blank check and 
fill in a reasonable number. I must oppose amendment 861 because, in my 
reading, any President of any party would adopt the broadest legal 
interpretation possible in defining what constitutes an ``other hostile 
force'' or an ``attack'' or what it means to ``ensure the ability of 
the Armed Forces of the U.S. to defend themselves.''
  This language risks unintentionally authorizing President Trump to 
order all types of military strikes against any number of potential 
entities that the President deems to be a threat. How would the Trump 
administration determine the precise baseline that defines the term 
``ability'' of the military to defend itself? Would allowing the 
degradation of any platform or capability qualify as failing to 
``ensure the ability'' of the U.S. Armed Forces to defend itself? If 
so, that would authorize the use of funds in the National Defense 
Authorization Act for Fiscal Year 2020 to take unilateral, preemptive 
action again a foreign nation or hostile force to preserve the current 
capabilities of the U.S. military.
  I am confident the author of this amendment would disagree with this 
interpretation of his legislative language. However, would the sponsor 
argue that such an interpretation is unreasonable or not possible? 
Would a Federal Court not defer to the Federal Agency's interpretation 
of a vague and ambiguous statute? I do not know the answer to either 
question; yet I know this: I am not willing to take that risk.
  We are living with the consequences of a previous Congress that 
rushed to pass a concise authorization for use of military force that 
appeared targeted and limited at first. We have watched as Republican 
and Democratic administrations alike subsequently employed creative and 
broad legal interpretations of that authorization to continually expand 
which parties were connected with the horrific terrorist attacks of 
September 11, 2001.
  To this very day, the Trump administration cites this authorization 
for use of military force as legal justification to unilaterally deploy 
Americans all around the world, even though it was authorized in 
response to an event that took place before some of these troops were 
even born. To be clear, I am not asserting that I oppose the premise or 
substantive motivation of every military action that has taken place 
under the recent Presidential administrations. I am simply stating that 
such actions must be debated and voted on by Congress.
  I deployed to fight in a war I personally opposed because it was 
ordered by the Commander in Chief, and these orders were pursuant to an 
authorization for use of military force that was publicly debated and 
passed by a majority of our Nation's elected representatives. Opposing 
a vaguely worded amendment whose own author and proponents assert is 
duplicative and unnecessary and which I believe may unintentionally 
open the door to unlimited unilateral military action, ultimately is a 
vote to make our Nation stronger, more accountable, and a more perfect 
union in living out the principles contained in our founding document.
  Critics may falsely allege that opposing amendment No. 861 is voting 
against our national defense and military. I will strongly reject any 
such ridiculous claim that slanders me with the accusation that I would 
ever risk the security and safety of the Nation I have proudly served 
in uniform. In voting against amendment No. 861, I am safeguarding our 
military from excessive use without congressional oversight. I am 
simply making clear that we, in Congress, must begin exercising the 
same care and attention in doing our job as our troops do when 
executing their missions downrange.
  One of my primary motivations for serving the great State of Illinois 
in the U.S. Senate is to help restore congressional war powers. To 
remind my colleagues that whether one favors military action or opposes 
the use of military force, every Member of Congress should agree that 
such matters deserve to be debated and carefully considered by our 
Nation's duly elected representatives in the broad light of day. To 
remind my colleagues that we must always demand the Commander in Chief 
clearly outline our desired strategic end state before authorizing 
military action that puts our troops in harm's way.
  The bottom line is that only Congress has the power to declare war. 
We are the ones tasked with deciding when and how we send Americans 
into combat. We are the ones the Constitution charged with that most 
solemn duty.
  For too long, too many elected officials have avoided the 
responsibility and burden of declaring war. Fearing electoral risks and 
staring down coming elections, multiple Congresses have shirked their 
constitutional responsibility to our troops by refusing to repeal the 
existing authorization for use of military force, while avoiding 
consideration any new authorizations for use of military force. 
Enough--enough of being so worried about political consequences that we 
fail to do our own jobs, even as we expect our troops to do theirs 
without complaint every day.
  We need to do better by our servicemembers. We owe it to them to 
honor their sacrifices. Part of that means ensuring that no American 
sheds blood in a war Congress has not authorized, or unintentionally 
authorized by passing vague language such as in amendment No. 861 that 
can be twisted to be read as empowering President Trump to take 
preemptive military action.
  We should be disciplined in forcing any President who wishes to go to 
war to bring their case to Congress and give the American people a vote 
through their elected representatives. That is how we truly respect our 
servicemembers and military families: by demanding debate that is 
honest and clear-eyed about the likely loss of life and the risks of 
escalation that accompany any use of force. It is our duty, and it is 
the least we can do for those willing to risk their lives in 
safeguarding our democracy, our way of life, and our Constitution.
  So with the drums of war beating louder and louder by the day, I must 
oppose amendment No. 861 and keep my promise to all who served or are 
serving now in defense of this country we love. I must continue seeking 
to hold all of us who have the honor of serving in Congress accountable 
for taking back congressional war powers. Moving forward, I urge the 
leadership of the Senate and House Armed Services Committees to work 
with me to strike or significantly restrict this language during the 
conference negotiations that will take place over the National Defense 
Authorization Act for Fiscal Year 2020.

                          ____________________