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91–139 PDF 2014

S. HRG. 113–459 

AUTHORIZATION FOR USE OF MILITARY FORCE 

AFTER IRAQ AND AFGHANISTAN 

HEARING 

BEFORE THE

COMMITTEE ON FOREIGN RELATIONS 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

MAY 21, 2014 

Printed for the use of the Committee on Foreign Relations 

( 

Available via the World Wide Web: http://www.gpo.gov/fdsys/ 

FOREI-43947 with DISTILLER

COMMITTEE ON FOREIGN RELATIONS

ROBERT MENENDEZ, New Jersey, Chairman

BARBARA BOXER, California 

BENJAMIN L. CARDIN, Maryland 

JEANNE SHAHEEN, New Hampshire 

CHRISTOPHER A. COONS, Delaware 

RICHARD J. DURBIN, Illinois 

TOM UDALL, New Mexico 

CHRISTOPHER MURPHY, Connecticut 

TIM KAINE, Virginia 

EDWARD J. MARKEY, Massachusetts 

BOB CORKER, Tennessee 

JAMES E. RISCH, Idaho 

MARCO RUBIO, Florida 

RON JOHNSON, Wisconsin 

JEFF FLAKE, Arizona 

JOHN McCAIN, Arizona 

JOHN BARRASSO, Wyoming 

RAND PAUL, Kentucky 

DANIEL E. O’BRIEN, Staff Director

LESTER E. MUNSON III, Republican Staff Director

(II)

FOREI-43947 with DISTILLER

C O N T E N T S 

Page 

Corker, Hon. Bob, U.S. Senator from Tennessee, opening statement ................. 2 

Koh, Hon. Harold Hongju, Sterling Professor of International Law, Yale Law 

School, former State Department Legal Adviser, New Haven, CT .................. 40 

Prepared statement .......................................................................................... 41 

Responses to questions submitted for the record by Senator Benjamin 

L. Cardin ........................................................................................................ 80 

McLeod, Mary E., Principal Deputy Legal Adviser, U.S. Department of State, 

Washington, DC ................................................................................................... 4 

Prepared statement .......................................................................................... 6 

Responses to questions submitted for the record by Senator Bob Corker ... 77 

Response to question submitted for the record by Senator Benjamin L. 

Cardin ............................................................................................................ 80 

Menendez, Hon. Robert, U.S. Senator from New Jersey, opening statement .... 1 

Mukasey, Hon. Michael B., partner, Debevoise & Plimpton, former Attorney 

General of the United States, New York, NY .................................................... 51 

Prepared statement .......................................................................................... 52 

Preston, Hon. Stephen W., General Council, U.S. Department of Defense, 

Washington, DC ................................................................................................... 8 

Prepared statement .......................................................................................... 9 

Responses to questions submitted for the record by Senator Bob Corker ... 71 

Responses to questions submitted for the record by Senator Benjamin 

L. Cardin ........................................................................................................ 79 

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

Written Statement from the Human Rights First ................................................ 61 

(III)

FOREI-43947 with DISTILLER

FOREI-43947 with DISTILLER

(1) 

AUTHORIZATION FOR USE OF MILITARY 

FORCE AFTER IRAQ AND AFGHANISTAN 

WEDNESDAY, MAY 21, 2014 

U.S. SENATE, 

COMMITTEE ON FOREIGN RELATIONS, 

Washington, DC. 

The committee met, pursuant to notice, at 10:03 a.m., in room 

SD–419, Dirksen Senate Office Building, Hon. Robert Menendez 

(chairman of the committee) presiding. 

Present: Senators Menendez, Durbin, Murphy, Kaine, Markey, 

Corker, Rubio, Johnson, Flake, and McCain. 

OPENING STATEMENT OF HON. ROBERT MENENDEZ, 

U.S. SENATOR FROM NEW JERSEY 

The CHAIRMAN. Good morning. This hearing will come to order. 

Let me welcome our panelists to this important hearing on how, 

when, and where the United States brings to bear the power of our 

military. 

The 9/11 AUMF has served the United States well. It has provided broad authority for the United States to pursue and dismantle al-Qaeda in Afghanistan and Pakistan, and a foundation to 

authorize U.S. operations against al-Qaeda elsewhere, and against 

groups and individuals which have operationally associated themselves with al-Qaeda, like Al Qaeda in the Arabian Peninsula—an 

expansion that the Congress and U.S. courts have endorsed. 

That said, with the winding down of significant U.S. military 

activities in Afghanistan by the end of this year, it is appropriate 

to begin reassessing the 9/11 AUMF, in light of new circumstances 

and new threats that have evolved over time. The President himself recognized this, a year ago, when he said that he looked forward to engaging Congress and the American people in efforts to 

refine and ultimately repeal the AUMF’s mandate. He also said 

that he, ‘‘would not sign laws designed to expand this mandate further.’’ I feel it is time to seriously consider what options and tools 

we have to counter what appears to be a continued, and, in some 

regions, growing, threat of terrorism to the United States. This 

hearing will consider existing authorities under the current authorization for the use of military force, as well as what additional statutory authorities may be required to confront ongoing threats associated with al-Qaeda and other terrorist entities that threaten the 

United States, as well as the President’s inherent authorities. 

I want to hear from our administration witnesses what the 

thinking has been in the executive branch about the current AUMF 

FOREI-43947 with DISTILLER

2 

and options to either amend or develop a new AUMF to confront 

the changing threat environment. 

I would ask all our witnesses to answer a simple question today. 

Is the 9/11 AUMF broken in some way? Is it obsolete? Is it inadequate to the threats we and our friends and allies face today and 

for the foreseeable future? If we amend or draft a new AUMF, 

what would this new authority look like? How would we determine 

which threats to pursue in order to secure ourselves at home and 

abroad? 

And finally, I would like to hear the views of each of our witnesses on the prospect of repealing the Iraq AUMF, which I personally believe must be repealed. It is my understanding that, from a 

legal and operational perspective, there are no barriers to repeal 

and no deficiencies of needed authorities to assist the Government 

of Iraq in counterterrorism activities. 

These are important questions that must be answered. Now, not 

at a moment of crisis, is a time to have this important dialogue. 

There is no issue more important to our national security than 

whether to use military force. And there is no other committee in 

the Senate that is seized with this issue more squarely than the 

Senate Foreign Relations Committee. Current and future threats 

necessitate our engagement and our attention. 

So, with our thanks to the witnesses again for what I look forward to be an informative exchange, let me—before I turn to Senator Corker, we have received a statement, for the record, from 

Human Rights First on the issues we will cover in this hearing. I 

ask unanimous consent that it be included in the record. Without 

objection, so ordered. 

The CHAIRMAN. Let me recognize the distinguished ranking 

member, Senator Corker, for his remarks. 

OPENING STATEMENT OF HON. BOB CORKER, 

U.S. SENATOR FROM TENNESSEE 

Senator CORKER. Mr. Chairman, I want to thank you for having 

this hearing. 

And I want to thank the witnesses for taking their time to be 

here before us today and help us. And I want to thank you on two 

fronts. Number one, I know we have talked about this for some 

time, and you have honored a commitment, which I greatly appreciate, actually to people on both sides of the aisle. And I appreciate 

the way you have allowed there to be appropriate debate on this 

committee. 

I know we both attended a sort of a discussion last night, that 

I found to be one of the most bizarre I have attended on Foreign 

Relations, on foreign policy in our country. And I am convinced 

more than ever that this discussion regarding the AUMF is an 

important place for us to weigh in and to help shape policy. 

And I want to say, on the onset, that, to me, this is not about 

trying to limit the President in his abilities to carry out activities, 

that I think both of us consider to be very, very important to our 

security. It is more about us weighing in and actually giving the 

President the authorities he needs, but, at the same time, us having the responsibility to ensure that we have appropriate policies, 

FOREI-43947 with DISTILLER

3 

especially with where we are today relative to terrorism around the 

world. 

So, with that, I am going to read—I hate to read opening statements, but I am going to do that anyway. And again, I want to 

thank you for allowing us to weigh in on one of the most critical 

issues facing our country. 

My hope is the committee can lead Congress to fulfilling its constitutional responsibilities on foreign policy and ensure that we, as 

a nation, pursue our national defense in a lawful and accountable 

way. 

One week after the 9/11 attacks, Congress authorized the President to use all necessary and appropriate force against those 

nations, organizations, or persons he determined planned, authorized, committed, or aided the terrorist attacks that occurred on 

September the 11th, 2001. More than 12 years later, the President 

continues to rely on this same 60-word authorization to fight terrorist organizations around the world. 

I understand why people are concerned and may think that seeking appropriate legal authorization for counterterrorism is either a 

way to seek expansion of war or attempt to restrict the President. 

From my perspective, neither is the case. 

In the 13 years since the original authorization, the threat to our 

security has changed substantially. Today’s threat is no longer 

about the hunt for bin Laden and those responsible for the 9/11 

attacks. Today’s threat is about affiliated groups metastasizing 

across the globe, and the current authorization simply does not 

make sense anymore. These evolving threats are not secret, and 

they are clearly openly recognized by this administration 

A State Department report released in April said that, while 

al-Qaeda’s central leadership is diminished, their affiliated groups 

are expanding, contributing to a 43-percent increase in global terrorist attacks in 2013 alone. The Chairman of the Joint Chiefs, 

Martin Dempsey, recently testified that the terrorists responsible 

for killing four Americans in Benghazi are not covered under the 

current AUMF. Perhaps the most problematic and ironic is the fact 

that the President may not have the authority to target the most 

ruthless terrorist organization in Syria, the Islamic State of Iraq 

and Syria, or ISIS, because of its split with al-Qaeda. 

It would be easier for us to ignore these difficult issues or to buy 

the fantasy that al-Qaeda is dead or dying and that the tides of 

war are receding. But no serious observer can look to the world 

today without concluding that, for the foreseeable future, terrorist 

groups with global reach will continue to threaten our country, 

regardless of their link to the 9/11 attacks. 

Rather than abdicating the responsibility for confronting this 

threat and leaving it to the executive branch, Congress has a 

responsibility to both provide the President with the legal authorities needed to ensure our security and to define the legal parameters in which this shall be pursued. This hearing provides members of this committee the opportunity to begin that process. 

However, since the President suggested, in a May 2013 memo, 

that he would engage with Congress on this issue, he has been 

silent and done nothing. I believe this committee can and will act 

responsibly. I believe we can move forward in a bipartisan fashion 

FOREI-43947 with DISTILLER

4 

to ensure that the law reflects reality, that counterterrorism operations respect the law, and that the President has the authority that 

he needs to keep America safe while respecting the Constitution. 

This hearing is a first step in that direction. The bottom line is 

that an issue this critical to our security and liberty demands a 

robust and thorough debate from the elected officials of the American people. As difficult as it may be, Congress has to step up to 

the plate. It is our duty to have this debate. We cannot ask Americans to serve their country and risk their lives in the ongoing fight 

against terrorism if we will not take our responsibility seriously 

here. 

So, with that, Mr. Chairman, thank you again for this great 

hearing, and I hope we will have some results after this hearing 

is concluded. 

The CHAIRMAN. Thank you, Senator Corker. 

I understand that a class from Jefferson High School of Alexandria, VA, is with us. We welcome you all to the Senate Foreign 

Relations Committee today. It is a great topic for you to be listening to as we move in the course of events here. So, welcome. 

Our first panel, we have Mary McLeod, the State Department’s 

Principal Deputy Legal Adviser, and Stephen Preston, the General 

Counsel of the Department of Defense. 

Your full statements will be included in the record, without 

objection. I would ask you to summarize those statements in about 

5 minutes or so, so that the members can engage you in a questionand-answer session. 

And, with that, Ms. McLeod, you are recognized. 

STATEMENT OF MARY E. MCLEOD, PRINCIPAL DEPUTY LEGAL 

ADVISER, U.S. DEPARTMENT OF STATE, WASHINGTON, DC 

Ms. MCLEOD. Thank you very much, Chairman Menendez, Ranking Member Corker, and members of the committee, for the invitation to speak at this hearing. The administration looks forward to 

engaging with this committee and the Congress on this important 

topic. 

I will begin with some introductory remarks before discussing 

briefly a few international law aspects of the administration’s legal 

framework for conducting operations pursuant to the 2001 Authorization for Use of Military Force, or AUMF. I will conclude by 

laying out a few relevant considerations first, establishing our legal 

framework beyond 2014. My colleague, Stephen Preston, General 

Counsel of the Department of Defense, will then address the 

current framework under U.S. law for military counterterrorism 

operations. 

As an initial matter, as you have noted, the President has made 

clear his desire to engage with Congress about the future of the 

AUMF. The President expressed his commitment to move America 

off a permanent war footing, 1 year ago, in his speech at the 

National Defense University, and reaffirmed that commitment in 

this year’s State of the Union Address. And the President made 

clear in his NDU speech that his goal is to engage with Congress 

and the American people to refine and ultimately repeal the 

AUMF. 

FOREI-43947 with DISTILLER

5 

As we begin our dialogue on this issue, it will be critical to assess 

our legal authorities, not only within the context of our current 

military operations, but also in light of future needs, which, as of 

today’s hearing, may not be fully apparent. At the same time, as 

the President has said, we must keep in mind, going forward, that 

not every collection of thugs that label themselves al-Qaeda will 

pose a threat to the United States that requires the use of military 

force in response. 

Turning now to international legal considerations. As we consider the future of the AUMF, it will be critical to ensure that U.S. 

actions continue to be grounded firmly in international law. Under 

international law, the United States has an inherent right of selfdefense to use force to respond to an armed attack or to the imminent threat of an armed attack. And when in an armed conflict, the 

United States may use force, in accordance with the Law of War, 

to prosecute that conflict. Our use of military force must comply 

with international laws’ requirements of necessity, proportionality, 

distinction, and humanity. United States use of force abroad is carried out in furtherance of these international law rights and 

requirements, and the Law of War specifically has and will continue to provide the legal framework for U.S. military actions taken 

in the armed conflict against al-Qaeda, Taliban, and associated 

forces. Going forward, the Office of the Legal Adviser at the State 

Department will continue to work to ensure that we exercise our 

rights consistent with these and other applicable international law 

principles. 

I also want to note that there is a firm basis in international law 

to support our friends and partners facing the threat of terrorism 

within their own borders. Even where violent extremists pose a 

greater threat to those countries than they do to the United States, 

we can draw from all elements of national power, including military force in appropriate cases, to help them counter these threats. 

In Mali, for example, we have been providing military aid to 

French forces to push back terrorists and other extremists. As the 

President stated in his speech 1 year ago, we must define our effort 

not as a boundless global war on terror, but, rather, as a series of 

persistent, targeted efforts to dismantle specific networks of violent 

extremists that threaten America. Indeed, targeted efforts undertaken in partnership with other countries can be highly effective in 

countering terrorist threats without keeping the United States on 

a permanent wartime footing. 

With these principles in mind, let me now outline a few considerations regarding a future legal framework. We are currently working to identify an appropriate United States military presence in 

Afghanistan after 2014. We are also working toward the closure of 

the detention facility at Guantanamo Bay, which the President has 

reaffirmed will further our national security, our international 

standing, and our ability to cooperate with allies in counterterrorism efforts. We also continue to work with our allies and partners to provide assistance and training to increase our capacity to 

take effective measures against terrorist organizations. The State 

Department is joined by many other U.S. agencies in implementing 

this comprehensive strategy, which includes a broad range of military and other foreign assistance, law enforcement cooperation, 

FOREI-43947 with DISTILLER

6 

intelligence-sharing, and diplomatic engagement. All of these 

efforts are vital to countering threats. This is true even at times 

such as the present, when we are using military force as part of 

our response to the terrorist threat. In the long term, the success 

of our efforts will depend not exclusively on the use of military 

force, but also on sustained attention to achieving effective governance and the rule of law in countries where terrorist threats proliferate. 

And, based on all these considerations, we would suggest that 

our efforts to identify a future legal framework be guided by the 

following principles. 

First, any domestic authority that we rely on to use military 

force should reflect the President’s clear direction that we must 

move America off a permanent wartime footing. As the President 

stated, this means that we will engage with Congress and the 

American people to refine, and ultimately repeal, the AUMF, and 

that the President will not sign a law designed to expand the 

AUMF’s mandate further. 

Second, any authorization to use military force, including any 

detention operations, must be consistent with international law. 

Third, we must continue to enhance our cooperation with partner 

nations to take action within their own borders, including law 

enforcement action and other forms of engagement, where those 

methods provide the most effective and sustainable means of countering terrorist threats. 

Finally, we must keep in mind that the President’s authority to 

defend the United States would remain part of any framework that 

emerges. 

Thank you very much. And I will now turn to Stephen Preston 

to make his statement. And, after that, we would be happy to 

answer any questions you may have. 

[The prepared statement of Ms. McLeod follows:] 

PREPARED STATEMENT OF MARY E. MCLEOD

Thank you very much Chairman Menendez, Ranking Member Corker, and members of the committee, for the invitation to speak at this hearing. The administration looks forward to engaging with this committee and the Congress on this important topic. 

I will begin with some introductory remarks before discussing briefly a few 

international law aspects of the administration’s legal framework for conducting 

operations pursuant to the 2001 Authorization for Use of Military Force (AUMF). 

I will conclude by laying out a few relevant considerations for establishing our legal 

framework beyond 2014. My colleague Stephen Preston, General Counsel of the 

Department of Defense, will then address the current framework under U.S. law for 

military counterterrorism operations. 

As an initial matter, the President has made clear his desire to engage with Congress about the future of the AUMF. The President expressed his commitment to 

‘‘move [America] off a permanent war footing’’ 1 year ago in his speech at the 

National Defense University (NDU), and reaffirmed this commitment in this year’s 

State of the Union address. And the President made clear in his NDU speech that 

his goal is to engage with Congress and the American people to ‘‘refine, and ultimately repeal’’ the AUMF. 

As we begin our dialogue on this issue, it will be critical to assess our legal 

authorities not only within the context of our current military operations, but also 

in light of future needs, which as of today’s hearing may not be fully apparent. At 

the same time, as the President has said, we must keep in mind going forward that 

not every collection of thugs that label themselves al-Qaeda will pose a threat to 

the United States that requires the use of military force in response. 

FOREI-43947 with DISTILLER

7 

INTERNATIONAL LEGAL CONSIDERATIONS

Turning now to international legal considerations, as we consider the future of the 

AUMF, it will be critical to ensure that U.S. actions continue to be grounded firmly 

in international law. Under international law, the United States has an inherent 

right of self-defense to use force to respond to an armed attack, or the imminent 

threat of an armed attack. And, when in an armed conflict, the United States may 

use force, in accordance with the law of war, to prosecute that conflict. Our use of 

military force must comply with international law’s requirements of necessity, proportionality, distinction, and humanity. 

United States use of force abroad is carried out in furtherance of these international law rights and requirements, and the law of war specifically has and will 

continue to provide the legal framework for U.S. military actions taken in the armed 

conflict against al-Qaeda, Taliban, and associated forces. Going forward, the Office 

of the Legal Adviser at the State Department will continue to work to ensure that 

we exercise our rights consistent with these and other applicable international law 

principles. 

I also want to note that there is a firm basis in international law to support our 

friends and partners facing the threat of terrorism within their own borders. Even 

where violent extremists pose a greater threat to these countries than they do to 

the United States, we can draw from all elements of national power—including military force, in appropriate cases—to help them counter these threats. In Mali, for 

example, we have been providing military aid to French forces to push back terrorists and other extremists. As the President stated in his speech 1 year ago, ‘‘we 

must define our effort not as a boundless global war on terror, but rather as a series 

of persistent, targeted efforts to dismantle specific networks of violent extremists 

that threaten America.’’ Indeed, targeted efforts undertaken in partnership with 

other countries can be highly effective in countering terrorist threats, without keeping the United States on a permanent wartime footing. 

POST-2014 LEGAL FRAMEWORK

With these principles in mind, let me now outline a few considerations regarding 

a future legal framework. We are currently working to identify an appropriate U.S. 

military presence in Afghanistan after 2014. We are also working toward the closure 

of the detention facility at Guantanamo Bay, which the President has reaffirmed 

will further our national security, our international standing, and our ability to cooperate with allies in counterterrorism efforts. We also continue to work with our 

allies and partners to provide assistance and training to increase their capacity to 

take effective measures against terrorist organizations. 

The State Department is joined by many other U.S. agencies in implementing this 

comprehensive strategy, which includes a broad range of military and other foreign 

assistance, law enforcement cooperation, intelligence-sharing, and diplomatic 

engagement. All of these efforts are vital to countering threats. This is true even 

at times—such as the present—when we are using military force as part of our 

response to the terrorist threat. In the long term, the success of our efforts will 

depend not exclusively on the use of military force, but also on sustained attention 

to achieving effective governance and the rule of law in countries where terrorist 

threats proliferate. 

We also bear in mind what Department of Homeland Security Secretary Jeh 

Johnson, then in his capacity as General Counsel of the Department of Defense, 

stated in his November 2012 speech at the Oxford Union. He noted that there will 

come a ‘‘tipping point’’ when our efforts to disrupt, dismantle, and defeat al-Qaeda 

have succeeded to such an extent that we will no longer describe ourselves as being 

in an ‘‘armed conflict’’ with al-Qaeda to which the law of war applies. At that point, 

we will rely primarily on law enforcement, intelligence, foreign assistance, and diplomatic means—in cooperation with the international community—to counter any 

remaining threat posed by al-Qaeda and its affiliates. And as we do so, we will 

retain the authority, under both international and domestic law, to act in national 

or collective self-defense against armed attacks or imminent threats thereof posed 

by terrorist groups. 

Based on all of these considerations, we would suggest that our efforts to identify 

a future legal framework be guided by the following principles: 

• First, any domestic authority that we rely on to use military force should reflect 

the President’s clear direction that we must move America off a permanent wartime footing. As the President stated, this means that we will engage with Congress and the American people to ‘‘refine, and ultimately repeal’’ the AUMF, 

and that the President will not sign a law designed to expand the AUMF’s mandate further. 

FOREI-43947 with DISTILLER

8 

• Second, any authorization to use military force, including any detention operations, must be consistent with international law. 

• Third, we must continue to enhance our cooperation with partner nations to 

take action within their own borders, including law enforcement action and 

other forms of engagement, where those methods provide the most effective and 

sustainable means of countering terrorist threats. 

• Fourth, the President has made clear that now is the time to close the detention 

facility at Guantanamo Bay, and any future legislation should lift all remaining 

restrictions on the Commander in Chief’s authority to transfer detainees held 

under the law of war. 

• Finally, we must keep in mind that the President’s authority to defend the 

United States would remain part of any framework that emerges. 

Thank you very much. I will now turn to Stephen Preston to make his statement. 

After that, we would be happy to address any questions you might have. 

The CHAIRMAN. Mr. Preston. 

STATEMENT OF HON. STEPHEN W. PRESTON, GENERAL 

COUNSEL, U.S. DEPARTMENT OF DEFENSE, WASHINGTON, DC 

Mr. PRESTON. Thank you, Mr. Chairman, Ranking Member 

Corker, and members of the committee. Appreciate this opportunity 

to appear. 

I would like to open with a brief discussion of the current legal 

framework for U.S. military operations, focusing on how the 2001 

Authorization for the Use of Military Force is being applied by the 

Department of Defense. 

Although the AUMF makes no express mention of specific 

nations or groups, it was clearly intended to authorize the President to use force against al-Qaeda, the organization that perpetrated the 9/11 attacks, and the Taliban, which harbored 

al-Qaeda. In addition, based on the well-established concept of 

cobelligerency in the laws of war, the AUMF has been interpreted 

to authorize the use of force against associated forces of al-Qaeda 

and the Taliban. 

As the administration has stated publicly on numerous occasions, 

to be an associated force, a group must be both an organized, 

armed group that has entered the fight alongside al-Qaeda or the 

Taliban and a cobelligerent with al-Qaeda or the Taliban in hostilities against the United States or its coalition partners. 

The Department of Defense relies on the AUMF in three contexts: ongoing United States military operations in Afghanistan, 

our ongoing military operations against al-Qaeda and associated 

forces outside the United States in the theater of Afghanistan, and 

detention operations in Afghanistan and at the Guantanamo Bay, 

Cuba, facility. 

In Afghanistan, the U.S. military currently conducts operations 

pursuant to the AUMF against al-Qaeda, the Taliban, and other 

terrorist or insurgent groups that are engaged alongside al-Qaeda 

and the Taliban in hostilities against the United States and its coalition partners. In addition, the ISAF and U.S. rules of engagement 

permit the targeting of hostile personnel in Afghanistan, based on 

the threat they pose to United States, coalition, and Afghan forces 

or to civilians. 

Outside the United States in areas of active hostilities, the U.S. 

military currently takes direct action under the AUMF—that is, 

capture and lethal operations—in the following circumstances. 

FOREI-43947 with DISTILLER

9 

First, in Yemen, the United States military has conducted direct 

action targeting members of al-Qaeda in the Arabian Peninsula. 

AQAP is an organized, armed group that is part of al-Qaeda, or at 

least an associated force of al-Qaeda, for purposes of the AUMF. 

Second, the United States military has also conducted capture or 

lethal operations under the AUMF outside Afghanistan against individuals who are part of al-Qaeda and targeted as such. For example, in Somalia, the United States military has conducted direct action against a limited number of targets who have been determined 

to be part of al-Qaeda. And in Libya, in October 2013, in reliance 

on the AUMF, United States Forces captured longtime al-Qaeda 

member Abu Anas al-Libi. 

Now, the fact that an al-Qaeda-affiliated group has not to date 

been identified as an associated force for purposes of the AUMF 

does not mean that the United States has made a final determination that the group is not an associated force. We are prepared to 

review this question whenever a situation arises in which it may 

be necessary to take direct action against a terrorist group in order 

to protect our country. 

Lastly, in our ongoing armed conflict against al-Qaeda, the 

Taliban, and associated forces, the United States military relies on 

the authority of the AUMF to hold enemy belligerents in military 

detention in Afghanistan and at the detention facility at Guantanamo Bay. 

The AUMF is not the only authority the President has to use 

force to keep us safe. For example, the President has authority, 

under the United States Constitution, to use military force as 

needed to defend the Nation against armed attacks or imminent 

threats of armed attack. This inherent right of self-defense is also 

recognized in international law. 

Looking forward, the central question is, What future legal 

framework will provide the authorities necessary in order for our 

government to meet the terrorist threat to our country, but will not 

greatly exceed what is needed to meet the threat? As was made 

clear in the President’s NDU speech last year, the answer is not 

legislation granting the Executive unbound powers more suited for 

traditional armed conflicts between nation-states. Rather, the 

objective is a framework that will support a series of persistent, 

targeted efforts to dismantle specific networks of violent extremists 

that threaten America. The challenge is to ensure that the authorities for U.S. military operations are both adequate and appropriately tailored to the threat. 

And, with that, I look forward to answering your questions. 

[The prepared statement of Mr. Preston follows:] 

PREPARED STATEMENT OF STEPHEN W. PRESTON

Thank you, Chairman Menendez, Ranking Member Corker, and members of the 

committee, for this opportunity to testify about the framework under U.S. law for 

ongoing military counterterrorism and detention operations. Following up on the remarks of my colleague from the Department of State, I will discuss (i) the executive 

branch’s interpretation of the 2001 Authorization for the Use of Military Force 

(AUMF); (ii) how the AUMF is being applied by the Department of Defense in the 

armed conflict against al-Qaeda, the Taliban, and associated forces; and (iii) other 

domestic legal authority available to defend our country against terrorist threats. 

FOREI-43947 with DISTILLER

10 

I. INTERPRETATION OF THE AUMF

The AUMF, enacted 1 week after the attacks of September 11, 2001, authorizes 

the President to use ‘‘all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the 

terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism 

against the United States by such nations, organizations, or persons.’’ The executive 

branch interprets the AUMF to authorize the use of force against al-Qaeda, the 

Taliban, and associated forces. This interpretation has been embraced by the courts 

in the context of habeas corpus litigation involving detainees at the Guantanamo 

Bay detention facility, and by the Congress when it codified the interpretation, for 

the purposes of detention, almost word for word in Section 1021 of the National 

Defense Authorization Act for Fiscal Year 2012. 

Although the AUMF makes no express mention of specific nations or groups, it 

was clearly intended to authorize the use of force against al-Qaeda, the ‘‘organization’’ that ‘‘planned, authorized, committed, and aided the terrorist attacks that 

occurred on September 11, 2001,’’ as well as the Taliban, which ‘‘harbored’’ alQaeda. The concept of an ‘‘associated force’’ is based on the well-established concept 

of cobelligerency in the laws of war. 

As the administration has stated publicly on numerous occasions, to be an ‘‘associated force,’’ a group must be both (1) an organized, armed group that has entered 

the fight alongside al-Qaeda or the Taliban and (2) a cobelligerent with al-Qaeda 

or the Taliban in hostilities against the United States or its coalition partners. 

Before a group may be targeted for direct action under the AUMF, it is evaluated 

against this standard based on its current and historical activities. The determination that a particular group is an ‘‘associated force’’ is made at the most senior levels of the U.S. Government, following reviews by senior government lawyers and 

informed by departments and agencies with relevant expertise and institutional 

roles, including all-source intelligence from the U.S. intelligence community. It is 

not the case in law or in practice that the concept of an ‘‘associated force’’ is openended or otherwise provides the administration with unlimited flexibility to define 

the scope of the AUMF. A group that simply embraces al-Qaeda’s ideology is not 

an ‘‘associated force,’’ nor is every group or individual that commits terrorist acts. 

II. CURRENT APPLICATION OF THE AUMF

The Department of Defense relies on the AUMF in three contexts: for ongoing 

U.S. military operations in Afghanistan; for our ongoing military operations against 

al-Qaeda and associated forces outside of the United States and the theater of 

Afghanistan; and for associated detention operations in Afghanistan and at the detention facility at Guantanamo Bay, Cuba. 

Operations in Afghanistan 

In Afghanistan, the U.S. military currently conducts operations pursuant to the 

AUMF against al-Qaeda, the Taliban, and other terrorist and insurgent groups that 

are engaged alongside al-Qaeda and the Taliban in hostilities against the United 

States or its coalition partners. In addition, the International Security Assistance 

Force and U.S. rules of engagement permit targeting of hostile personnel in Afghanistan based on the threat they pose to U.S., coalition, and Afghan forces or to 

civilians. 

Beyond 2014, assuming we are able to conclude the Bilateral Security Agreement 

(BSA) with the Afghan Government on an acceptable timeline, the United States 

would seek to retain a small military presence in Afghanistan to conduct two narrow missions. First, to provide limited noncombat support to train, advise, and 

assist the Afghan National Security Forces under a North Atlantic Treaty Organization regional framework. And, second, to provide a U.S. national capability to disrupt terrorist activity in that region. The continued presence of U.S. forces in 

Afghanistan would be conditioned not only on the conclusion of the BSA, but also 

on the timely and smooth political transition to a post-Karzai administration sometime this year. 

Counterterrorism Operations Outside the United States and Areas of Active 

Hostilities 

For operations outside Afghanistan, as the President announced in his speech at 

National Defense University on May 23, 2013, he has issued Presidential Policy 

Guidance to formalize and strengthen the administration’s rigorous standards and 

procedures for reviewing and approving operations to capture or employ lethal force 

against terrorist targets outside the United States and outside areas of active hosFOREI-43947 with DISTILLER

11 

tilities. Pursuant to this Guidance, when the U.S. military takes lethal counterterrorism action beyond the Afghan theater, it does so only against targets that both 

are lawful military targets under domestic and international law and pose a continuing, imminent threat to U.S. persons. Thus, under the President’s policy, no one 

is targeted with lethal military force outside Afghanistan based solely on membership in al-Qaeda or an associated force. In addition, this Guidance requires near certainty that noncombatants will not be killed or injured before lethal action may be 

taken. 

The U.S. military currently takes direct action (capture or lethal operations) 

under the AUMF outside the United States and areas of active hostilities in the following circumstances: 

• First, in Yemen, the U.S. military has conducted direct action targeting members of Al Qaeda in the Arabian Peninsula (AQAP), which is an organized, 

armed group that is part of, or at least an associated force of, al-Qaeda. The 

determination that the AUMF authorizes the use of force against AQAP is 

based on information about both AQAP’s current and historical connections to 

al-Qaeda and the fact that AQAP has repeatedly launched attacks against the 

United States, including the December 2009 ‘‘underwear bomber’’ attack and 

the 2010 ‘‘printer cartridge’’ attack. In addition, AQAP continues to plan and 

attempt attacks against U.S. persons, both inside and outside Yemen. 

• Second, the U.S. military has also conducted capture or lethal operations under 

the AUMF outside of Afghanistan against individuals who are part of al-Qaeda 

and targeted as such. For example, in Somalia, the U.S. military has conducted 

direct action against a limited number of targets who, based on information 

about their current and historical activities, have been determined to be part 

of al-Qaeda. (Some of these individuals are also part of al-Shabaab, a group that 

is openly affiliated with al-Qaeda.) In Libya, in October 2013, in reliance on the 

AUMF, U.S. forces captured longtime al-Qaeda member Abu Anas al Libi. 

The fact that an al-Qaeda-affiliated group has not been identified as an ‘‘associated force’’ for purposes of the AUMF does not mean that the United States has 

made a final determination that the group is not an ‘‘associated force.’’ We are prepared to review this question whenever a situation arises in which it may be necessary to take direct action against a terrorist group. 

Detention Operations 

Lastly, in our ongoing armed conflict against al-Qaeda, the Taliban, and associated forces, the U.S. military relies on the authority of the AUMF to hold enemy 

belligerents in military detention in Afghanistan and at the detention facility at 

Guantanamo Bay, Cuba. 

III. OTHER DOMESTIC LEGAL AUTHORITY

For more than 12 years, the AUMF has provided authority to defend against certain known terrorist threats to our country—those posed by al-Qaeda, the Taliban, 

and associated forces—notably, those groups and associated forces in Afghanistan, 

AQAP in Yemen, and individuals who are part of al-Qaeda elsewhere such as Somalia and Libya. However, the AUMF is not the only authority the President has to 

use force in order to keep us safe. For example, the President has authority, under 

the U.S. Constitution, to use military force as needed to defend the nation against 

armed attacks and imminent threats of armed attack. (This inherent right of 

national self-defense is also recognized in international law.) Thus, although we are 

strongest when Congress and the executive branch are acting together, the President has the authority to respond to emerging threats, should it become necessary 

to do so. 

A central question looking forward is what future legal framework will provide 

the authorities necessary in order for our government to meet the terrorist threat 

to our country, but will not greatly exceed what is needed to meet that threat. As 

was made clear in the President’s NDU speech last year, the answer is not legislation granting the Executive ‘‘unbound powers more suited for traditional armed conflicts between nations.’’ Rather, the objective is a framework that will support ‘‘a 

series of persistent, targeted efforts to dismantle specific networks of violent extremists that threaten America.’’ The challenge is to ensure that the authorities for U.S. 

military counterterrorism and detention operations are both adequate and appropriately tailored to the threat. 

It is also essential that we strive for clarity in the legal authority for, and associated restrictions on, the use of military force. Such clarity is necessary to ensure 

the lawfulness of our government’s actions, first and foremost, and in efforts to 

FOREI-43947 with DISTILLER

12 

explain the legal framework on which we would rely to the American public and to 

the United States partners abroad. 

The CHAIRMAN. Well, thank you both. I know you stuck to your 

script, so let me try to get you off your script and go back to my 

original questions. 

Is the 9/11 AUMF broken in some way? Is it obsolete? Is it inadequate to the threats we and our friends and allies face today and 

in the foreseeable future? 

I offer that up for either one of you to answer, or both of you to 

answer. 

Mr. PRESTON. Let me begin, Mr. Chairman, and say that I agree 

with the views expressed on behalf of DOD, a little more than a 

year ago in a hearing before the Senate Armed Services Committee, that the AUMF is adequate in order to prosecute and continue to prosecute the current armed conflict against al-Qaeda, the 

Taliban, and associated forces. 

To the extent that the United States is threatened by a terrorist 

group to which the AUMF has not been determined to apply, the 

President, as we have said, has authority, under the U.S. Constitution, to defend the Nation against armed attacks and imminent 

threats of such attacks, and therefore, has the authority to use 

military force against groups in order to protect the country from 

that threat. 

The CHAIRMAN. Is it obsolete in any way? 

Mr. PRESTON. Well, I think, as the President has observed, we 

have reached a time, now 12 years into the conflict, where it is 

appropriate to review the AUMF with an eye toward its refinement 

and, ultimately, its repeal. In my view, I would say what we are 

looking for, and looking to develop, is a legal framework for the 

future that will enable us to continue fighting the terrorists that 

threaten our country and, at the same time, to take the country off 

a permanent wartime footing. 

The CHAIRMAN. All right, let me ask you a series of questions to 

further define this. One is specifically that I hope can have a relatively easy answer, which is on the Iraq AUMF. The United 

States ended its combat operations in Iraq in 2010, and, in fact, 

withdrew all of its military forces that same year. Since then, Congress has, on a number of occasions, examined the possibility of 

repealing the 2002 AUMF authorizing our Iraq operations, but the 

administration has repeatedly opposed those efforts. 

Starting with you, Ms. McLeod, can you explain to the committee, one, whether the administration continues to oppose repeal 

of the Iraq AUMF? And, if so, why? And I would like to hear your 

answer to this, Mr. Preston, as well. 

Ms. MCLEOD. Certainly, Chairman Menendez. And, once again, 

thank you for inviting me to testify here today. 

As you said, the United States has ended combat operations in 

Iraq, and we have withdrawn our military forces. And I can confirm that we are not relying on the 2002 Iraq AUMF for any military operations, nor do we intend to do so. And I am here to tell 

you today that the administration now supports repeal of the 2002 

Iraq AUMF. 

Mr. PRESTON. Mr. Chairman, I agree. That is certainly my 

understanding, as well. 

FOREI-43947 with DISTILLER

13 

The CHAIRMAN. All right. That brings to full circle my view, 

which we should not have been in Iraq in the first place. That is 

why I voted against it. And I would be happy to repeal it now. 

Expressions of approval or disapproval of any of the statements 

that take place in this hearing are inappropriate, and I would urge 

the audience to act accordingly. 

My second question is one I would like for both of you to answer. 

If the AUMF were to expire, would the President be able to conduct 

counterterror operations, such as drone strikes in Yemen or other 

operations against the perpetrators of the Benghazi attack, using 

existing legal authorities? Or would a new or amended AUMF be 

required to conduct such operations? 

Ms. MCLEOD. Thank you, Mr. Chairman. Let me begin. 

The AUMF currently, as we have said, authorizes the use of 

force against al-Qaeda, Taliban, and associated forces. And in 

Yemen, the U.S. military has conducted direct action targeting 

members of Al Qaeda in the Arabian Peninsula, known as AQAP, 

which has been determined to be, at least, either part of or at least 

associated with al-Qaeda. And, as you mentioned, Senator, Article 

2 of the Constitution provides the President with the authority to 

target with military force those who pose an imminent threat of 

armed attack against the United States. And, as both a domestic 

law matter and an international law matter, this authority to act 

in self-defense does not depend on the existence of an AUMF. 

With respect to the AUMF, though, in particular, we are still in 

an armed conflict, as of today, with al-Qaeda, Taliban, and associated forces. And the AUMF continues to provide a source of authority to use military force against those groups, when necessary, 

including associated detention operations. 

And I would also note that the—as I said in my statement—that 

the President has and uses a range of other authorities to counter 

terrorist threats, and these law enforcement, intelligence, foreign 

assistance authorities—— 

The CHAIRMAN. So, your answer—— 

Ms. MCLEOD [continuing]. And so forth. 

The CHAIRMAN. Just to synthesize it for me, because I know, 

when I deal with lawyers, I have to get to—is—your answer, therefore, is, you do not need a new—from your view, a new or amended 

AUMF to conduct such operations. 

Ms. MCLEOD. Not for the President to take action against imminent threats to the United States. 

The CHAIRMAN. Is that your view, Mr. Preston? 

Mr. PRESTON. I agree. 

The CHAIRMAN. Now, the question is, Is acting against the perpetrators of Benghazi’s attack an imminent threat? 

[Pause.] 

The CHAIRMAN. I would be happy for either one of you to answer. 

Ms. MCLEOD. We will answer. I will—— 

The CHAIRMAN. I know, because I am not going to go to the next 

Senator until you do, so—— 

[Laughter.] 

Ms. MCLEOD. Okay. No, I promise, I am going to answer right 

now. 

FOREI-43947 with DISTILLER

14 

Senator, the United States remains committed to using every 

lawful tool available to bring the perpetrators of the Benghazi 

attacks to justice. And we think we have adequate tools to meet 

that objective. 

The CHAIRMAN. You think you have adequate tools meet that 

objective. 

Ms. MCLEOD. Yes. 

The CHAIRMAN. And can you give me a sense of what those tools 

are? 

Ms. MCLEOD. Well, the administration favors bringing those 

responsible for the attacks to justice through prosecution in an 

Article 3 court. And the Justice Department is conducting an 

investigation to try and achieve that end. 

The CHAIRMAN. Yes. And if that investigation leads to the identification of perpetrators, how would you act against the perpetrators? Under what authority? 

Mr. PRESTON. Sir, perhaps I could chime and say—— 

The CHAIRMAN. Yes. 

Mr. PRESTON [continuing]. I think we have a range of authorities. 

And our government is committed to making full use of all lawfully 

available instruments of national power to bring these people to 

justice and to ensure that they do not present a threat to this 

country. 

To the extent that they present an imminent threat of violent 

attack to this country, the President has, under the Constitution, 

authority to use force in order to protect this country. Beyond that, 

to the extent we are presented with a concrete situation, we are in 

a position to evaluate and reevaluate whether they would qualify 

under the AUMF. And, in addition, quite apart from the use of 

military force and those authorities, there is law enforcement 

authority to apprehend and bring to justice, try, and prosecute 

these criminals. 

The CHAIRMAN. Let me ask you two final questions before I turn 

to Senator Corker. 

What authorities does the 9/11 AUMF give the President, in 

terms of authorities to use force, that he does not already possess 

in other authorities, including Article 2 of the Constitution? 

Ms. MCLEOD. Senator, as we have said, the President does have 

authority, under Article 2, to protect the Nation against imminent 

threat of armed attack. However, as the President has said, and I 

agree with, it is always better and more powerful to have the executive branch and Congress working together on issues involving—— 

The CHAIRMAN. Yes, that is not my question. My question is very 

simple. 

In order to determine what we do, moving forward—I do not 

mean to interrupt you, but—I have got to get a sense, at least from 

an administration perspective, of what you feel the AUMF gave you 

that you did not have otherwise, constitutionally or through some 

other statutory provisions. Because if you tell me that you have all 

the authorities in the world to go ahead and do everything that the 

9/11 AUMF provided, then that AUMF was not necessary. So, give 

me a sense of what you got through the AUMF that you do not 

have under existing constitutional or statutory law. 

FOREI-43947 with DISTILLER

15 

Mr. PRESTON. Senator, if I might answer that, I think it would 

be fair to say that, with or without an AUMF, to the extent that 

it grants authority for the use of military force against al-Qaeda 

and the Taliban and associated forces in which we are in armed 

conflict, and to the extent that those groups continue to pose an imminent threat of violent attack to this country, the President does 

have constitutional authority to act. It is not—— 

The CHAIRMAN. So, you are telling us, that AUMF was not necessary. 

Mr. PRESTON. No, sir. 

The CHAIRMAN. Other than an expression of congressional support for that engagement. 

Mr. PRESTON. Not an unimportant point, Mr. Chairman, but I 

think the point is that these two sources of authority are not, and 

I do not think were ever intended to be, mutually exclusive. And, 

in fact, as your question suggests, they are very largely overlapping 

when it comes to groups that present a terrorist threat of attack 

to this country. 

I am not going to tell you there are no differences between the 

two. The concept between an Authorization for the Use of Military 

Force, which names enemy groups and, similar to Law of War concepts, enables the use of force against groups, including to degrade 

those forces, without specific reference to imminent threat, is not 

the same concept or approach as the President’s constitutional 

authority to defend the country against imminent threat, and that 

parallel international law concept of national self-defense in which 

it is rooted in the presence of imminent threat. 

But, I think, in terms of the authority to protect this country 

against these groups, at least some of which present a threat of 

imminent attack against the United States, both the statute and 

the Constitution provide authority for the President to use military 

force to protect us. 

The CHAIRMAN. Senator Corker. 

Senator CORKER. Mr. Chairman, I have to say, I know several of 

us were involved in a very bizarre discussion last night. This continues a very bizarre discussion. 

I do want to say, for those who are reading the transcripts, Ms. 

McLeod, it is unbelievable to me that, to answer our questions, you 

have to find the place, a pre-prepared statement to make, and cannot answer these questions directly yourself, which is troubling to 

me. But, let me just—I think what you have said, if I can synthesize the legalese that you have used, is that the President needs 

no AUMF to carry out the the counterterrorism activities we are 

carrying out around the world. If I heard you correctly, I think that 

is what you said. Is that correct? 

Ms. MCLEOD. Senator, I think what I said was, he has authority 

to use military force if it is necessary. 

Senator CORKER. I think what I heard you say is, he has the 

authority to carry out the activities he is carrying without really 

having an AUMF. And Mr. President—Mr. Preston, with a degree 

of legalese, has, I think, said something similar. I would just like 

to know, yes or no: If the 2001 AUMF was undone, can the President carry out the activities that he is carrying out right now? 

Ms. MCLEOD. Yes, I believe he could, Senator Corker. But—— 

FOREI-43947 with DISTILLER

16 

Senator CORKER. So, we have really—— 

Ms. MCLEOD [continuing]. I do think—— 

Senator CORKER [continuing]. As a Congress, do not need to be 

involved in this subject at all. 

Ms. MCLEOD. What I was going to say, in addition, is that I 

think, when we are talking about sustained military engagements, 

it is definitely appropriate to get Authorizations for Use of Military 

Force. 

Senator CORKER. Are we in sustained—— 

Ms. MCLEOD. And that has been the practice—— 

Senator CORKER [continuing]. Military operations now against 

terrorists? 

Ms. MCLEOD [continuing]. Certainly against—— 

Senator CORKER. I know the President, a year ago, said we were 

not. We were doing targeted—I forgot the phraseology that he 

used. And maybe it was to circumvent this, I do not know. But, are 

we, or are we not, in a continuous effort against al-Qaeda and 

affiliated groups? Yes or no? 

[Pause.] 

Senator CORKER. I would like for the record—she has to—— 

Mr. PRESTON. Yes, we are. 

Senator CORKER [continuing]. Look at the other person to get the 

answer. I find this very disconcerting today. Do you want to— 

I guess you want to answer it for her? 

Mr. PRESTON. I am sorry, I did not understand your question was 

directed solely at her. 

Senator CORKER. Well, let me, Ms. McLeod, since you are at 

State Department and that is who we have jurisdiction over—and 

I noticed a staffer has given you the answer, there. If you would 

read it for us, it would be great. 

Ms. MCLEOD. Could you repeat your question, Senator Corker? 

Senator CORKER. Does the President have the ability, without an 

AUMF, to carry out the activities that he is carrying out today 

against terrorists, affiliates of al-Qaeda? And are we, or are we not, 

engaged in continuous activity against them? 

Ms. MCLEOD. We continue to be in an armed conflict with alQaeda—— 

Senator CORKER. So, we are in continuous activity. So, do we 

need an AUMF, or not? 

[Pause.] 

Ms. MCLEOD. I think, as we have said, it is important to 

have—— 

Senator CORKER. Important for what reason, politically or 

legally? 

Ms. MCLEOD. In part, politically, but also because, when the 

Congress has a role to play—— 

Senator CORKER. Well, tell me what that role is. Because if I 

understand what you said before, the President can carry out the 

activities he is carrying out without an AUMF. So, it sounds to me 

like we are pretty irrelevant to the process from the administration’s standpoint. 

Ms. MCLEOD. That is not true, Senator Corker. 

Senator CORKER. Well, tell me—— 

Ms. MCLEOD. We have—— 

FOREI-43947 with DISTILLER

17 

Senator CORKER [continuing]. How we are relevant. 

Ms. MCLEOD [continuing]. Consulted closely with the Congress 

on our counterterrorism activities. 

Senator CORKER. Okay. 

Well, let me ask—let me change topics. I am really—this is not 

the line of questioning I expected, but I also expected a different 

type of testimony today on one of the most important issues that 

our Nation deals with. 

But, Mr. President, do you think—Mr. Preston, excuse me—do 

you believe that the 9/11 AUMF authorizes you to take action 

against all terrorist groups that present an ongoing serious threat 

to the United States? Are there any terrorist groups that you think 

the AUMF does not—it sounds like you all do not think we need 

an AUMF at all, so it is kind of becoming an irrelevant question. 

But, are there terrorist groups, per the AUMF that you do not 

think it is relevant, that you do not have the ability to go against? 

Mr. PRESTON. Senator, I would not say the AUMF is irrelevant 

or that Congress’s role is irrelevant. The point we were trying— 

that I was trying to make is that there is very robust authority, 

both in the AUMF and in the Article 2, in terms of the President’s 

powers—— 

Senator CORKER. Are there other groups that we cannot go 

against today, yes or no? 

Mr. PRESTON. Yes, sir. The—I mean, let me finish the point, 

which is to say, the President has invited us to focus and engage 

in dialogue with Congress about the continued necessity and utility 

of the AUMF or a follow-on legal regime. 

To answer your question more directly, the AUMF applies to 

al-Qaeda, Taliban, groups and individuals that are part of al-Qaeda 

and the Taliban, and associated—— 

Senator CORKER. That was not the question. And you are really 

frustrating me. 

Mr. PRESTON. There are—— 

Senator CORKER. And I have a generally good nature, but I am 

really getting upset. Okay? 

Are there groups today that the administration cannot go against 

because the AUMF does not allow you to do that? Terrorist groups. 

Mr. PRESTON. Senator Corker, I am not aware of any foreign terrorist group that presents a threat of violent attack on this country 

that the President lacks authority to use military force to defend 

against, as necessary, simply because they have not been determined to be an associated force within the AUMF. 

In other words, if a group that is not, or may not be, covered by 

the AUMF presents a threat of violent attack to this country, the 

President does have authority to take action, including military 

action, to protect the country from that threat. 

Senator CORKER. So, there are groups that did not exist at the 

time but are affiliated with the al-Qaeda that today are covered by 

the 9/11 AUMF, even though they did not exist at the time. 

Mr. PRESTON. That is correct, sir. The way I look at it is, the 

AUMF, not by name, but essentially identified the Taliban and 

al-Qaeda as our enemies, and that other groups, most notably 

AQAP, which has emerged since that time, have made themselves 

FOREI-43947 with DISTILLER

18 

our enemy by joining with al-Qaeda and engaging in hostilities 

against our country. 

Senator CORKER. Yes. So, the group that I discussed in my opening comments, ISIS, which is split from al-Qaeda, that is not affiliated with al-Qaeda—and actually, I heard administration officials 

had expressed concerns about their ability to deal with them in 

Syria and as they migrate back across into Iraq. Are you saying 

that, even though they are not a part of al-Qaeda, you have the 

authority to go against them? 

Mr. PRESTON. Senator, what we would do if we were presented 

with a need and an opportunity of contemplating the use of military force would be to examine what our authorities were. That 

would consist, first of all, of determining whether or not they would 

fall within the AUMF as an associated force, using the definition 

that we have provided, or, if not, if they present a threat of imminent attack on this country, we could rely on the President’s inherent constitutional authority. 

Senator CORKER. So, you would not rely on the AUMF. He just 

has authority to do whatever. 

Mr. PRESTON. We could rely on the AUMF to the extent that this 

group, or any other group, is covered by the AUMF. 

Senator CORKER. But—I thought you just—yes. 

Mr. Chairman, I find this bizarre, and I hope that our next group 

of witnesses is a little more clear. 

I do want to say that both of you indicated the President has 

asked you to engage with Congress on this. To my knowledge— 

I am the ranking member of this committee, and, along with other 

members on this committee, have expressed interest in the AUMF 

for some time. I have had no reachout from the administration. My 

guess is, the chairman has not. I would love to know if Tim or anybody else has. I know everybody’s expressed concern. 

So, that is another line of hollow comments from this administration. You have reached out in no way to talk to us about refining 

this. I understand you guys want to refine and replace some— 

or repeal—refine and repeal. And I do hope, at some point, you will 

define what that is. But, this is a hearing that is not particularly 

gratifying, and I do look forward to talking to you more in the 

future. 

Mr. PRESTON. Sir, we look forward to engaging with you and the 

committee and the other committees, as well. I will say, since the 

President’s speech, the administration has devoted a great deal of 

energy to focusing on the drawdown in Afghanistan and what the 

mission and presence will be there, to redouble the effort to clear 

detainees from GTMO toward the closure of that facility, implementation of policy guidance concerning counterterrorism operations outside of Afghanistan. We have tried to be in continuous 

dialogue with congressional committees on that, including on the 

BSA and such. And those are the precursors to focusing on possible 

repeal and, in the meantime, refinement of the AUF. 

And we have made progress, particularly I can speak for we 

agency lawyers, in focusing on what sort of legal regime—what sort 

of future legal framework might govern. And we very much look 

forward to engaging with the committee and other committees on 

FOREI-43947 with DISTILLER

19 

that when the administration is prepared to engage in that discussion in earnest. 

But, a good deal of this is premised on a finalization of what the 

circumstances, the mission and presence, in Afghanistan will be. 

And that still remains to be finalized. 

Senator CORKER. Mr. President—Preston—I do not know why I 

keep calling you ‘‘Mr. President.’’ 

Mr. PRESTON. I will try not to get used to it. 

Senator CORKER. Yes. [Laughter.] 

That last statement, about waiting to see what we are going 

to do in Afghanistan after this Presidential election, is one of the 

most bogus, lacking-of-substance comments I have ever heard 

before this committee. It has nothing—nothing to do with this 

AUMF. Nothing. 

And I have to tell you, Mr. Chairman—I know we were involved 

in a discussion last night—I think the administration is totally 

unprepared to discuss this issue, totally unprepared to decide how 

many troops we are going to have in Afghanistan, continue to hide 

behind this Presidential race that is taking place in Afghanistan. 

We all know what the outcome is going to be. 

And I just want to say that you discredit our country with statements like you just made, that we are waiting to see what we are 

going to do in Afghanistan to determine whether—or what an 

AUMF needs to look like. So, I am very disappointed in your testimony. I am disappointed in the White House’s inability to deal 

with substance, but to continue to deal with the optics of the way 

things are going to look. And I do look forward to that engagement, 

whenever it occurs. It has not occurred in a long, long time. 

The CHAIRMAN. Before I turn to Senator Kaine, I think Mr. Preston’s comment is not necessarily—the way you took it is not necessarily the way I took it, in terms of looking at an overall AUMF. 

I actually have a line of questioning, but I wanted to turn to other 

members before, but I will want to come back to, specifically, on 

Afghanistan that might be, I think, what was meant. 

I do want to just ask one thing, the prerogative of the Chair, 

before I turn to Senator Kaine so I do not lose the train of thought. 

Basically, to now, what I hear is that there is no reason why the 

administration would oppose the repeal of the 9/11 AUMF totally, 

because you basically say the President has all the authorities, notwithstanding the AUMF. 

Mr. PRESTON. Mr. Chairman, I think that is precisely the task 

that the President’s put before us in his May NDU speech, which 

is to examine that question, whether and what would be appropriate in the way of refinement and ultimate repeal of the statute. 

We are not here today calling for the immediate repeal of the 

statute. 

The CHAIRMAN. No, I know you are not calling—— 

Mr. PRESTON. We are here—— 

The CHAIRMAN [continuing]. For it, but your answers, so far, to 

both myself and the ranking member, would indicate that there is 

no—there is a view that, really, you have all the authorities, constitutionally and otherwise, outside of the AUMF. 

Mr. PRESTON. I think what I am trying to address is, in terms 

of fundamentals and the fundamental ability to protect our country 

FOREI-43947 with DISTILLER

20 

against imminent threat of attack. That is not to say that there are 

not pros and cons, advantages and disadvantages to having a statutory authorization versus relying on the President’s authority. 

That is precisely what we are working through now, with the President’s initiation. We are looking forward to engaging with the 

committee. 

The CHAIRMAN. I appreciate that both of you want to preserve, 

to the maximum degree possible, all Presidential authorities. I get 

that. I understand that. But, we are trying, in a good-faith effort 

here, to actually be helpful, not harmful. 

Senator Kaine has been very involved in this issue, and I look 

forward to his questions. 

Senator KAINE. Thank you, Mr. Chairman. 

And, to the witnesses, these are hard questions, but they are not 

‘‘gotcha’’ questions, because we are trying to figure out what to do 

with a law that Congress passed. And I have a number of concerns 

about the AUMF. Congress put in it no temporal or geographic limitation. Congress did not put such limitations in the AUMF. 

Administration witnesses testified last year before the Armed Services Committee, opined pretty blithely that the war, so declared, 

would likely last another 25 or 30 years. I do not think that is 

what Congress intended. 

I have concerns about the breadth of the definition that both 

administrations, the Bush and Obama administrations, have used 

about the associated entities to al-Qaeda that could be targeted. 

I have concern about allowance of military action against those 

who intend harm against coalition partners, which is a huge group 

of partners. That was not part of the AUMF language. 

And I have some concern that Congress rejected a notion of preemptive war in drafting the original AUMF, but the interpretation, 

especially of the ‘‘coalition partners’’ and ‘‘associated entities’’ 

phrases, have essentially allowed preemptive action in contravention to what Congress originally intended. 

But, to my colleagues, this is something that I think only we can 

solve, because, as we have heard from administration witnesses in 

the Armed Services hearing last year, an Executive is comfortable 

with a carte blanche. Why would they not be comfortable with a 

carte blanche? And they are not going to move, I do not think, as 

expeditiously to rein in a carte blanche as we probably need to. So, 

if there is going to be action taken here, it is up to Congress to take 

it. And of course we want thoughts and guidance and opinions from 

the administration so that we take the right action, not the wrong 

action. 

If a bill was introduced today—you have indicated that the 

administration supports the repeal of the Iraq AUMF—if a bill was 

introduced today to repeal the 9/14/01 AUMF, would the administration’s position be: support, oppose, or ‘‘I do not know’’? 

Ms. MCLEOD. As of today, Senator, I think the answer is, we do 

not know. 

Senator KAINE. Is that fair, Mr. Preston? 

Mr. PRESTON. What I would say, Senator Kaine, is that the prospect of repealing the AUMF is precisely what the President has 

functionally asked us to do, and that the administration wants to 

engage with Congress to decide. 

FOREI-43947 with DISTILLER

21 

Senator KAINE. So, I—and I follow that, but the—— 

Ms. MCLEOD. And—— 

Senator KAINE. Please, Ms. McLeod. 

Ms. MCLEOD [continuing]. If I could just say. And I think we are 

not here to say that it should be repealed today, although it is clear 

that that is the President’s ultimate goal. 

Senator KAINE. Well, so I asked this question because the President did suggest that we should engage around these questions, in 

a speech that he gave in May have 2013. That is 1 year ago. So, 

as of today, 1 year later, if a bill was introduced to repeal the 

AUMF, the position would not be ‘‘support,’’ and the position would 

not be ‘‘opposed’’; in your testimony, the position would be ‘‘I do not 

know what the administration’s view would be about such a proposal.’’ Is that—Ms. McLeod, that was your testimony. 

Mr. Preston. 

Mr. PRESTON. We did not come here this morning equipped to 

answer that question. 

Senator KAINE. Okay. Let me ask this. What is the United States 

doing right now of importance that it could not do without the 

AUMF? 

[Pause.] 

Senator KAINE. So, let me give you some—well, please, answer, 

and then I have some example questions. 

Mr. PRESTON. Well, I think as we discussed earlier, in terms of— 

the AUMF provides broad authority to use force against al-Qaeda, 

the Taliban—— 

Senator KAINE. Can I—that covers ground already covered. What 

is the United States doing right now that it could not do—— 

Mr. PRESTON [continuing]. I think—— 

Senator KAINE [continuing]. If there was no AUMF? 

Mr. PRESTON [continuing]. In terms of the authority to use military force in order to address an imminent threat of armed attack 

against this country, that the President’s constitutional authority 

would enable him to—— 

Senator KAINE. Right. So, that is what he can do. But, what 

could we not do if there was no AUMF? 

Let me be more specific. Is there ample authority, without the 

AUMF, for follow-on U.S. military force in Afghanistan? If the 

AUMF did not exist, is there ample legal authority for follow-on 

U.S. military force presence in Afghanistan? 

Mr. PRESTON. I think, sir, that that would have to be addressed 

with Congress. Right now, we have that authorization. Without 

that authorization, depending on the nature and scope of the U.S. 

mission post-2014, we may well need to engage with Congress, in 

terms—under the war powers process or otherwise. 

Senator KAINE. So, the absence of an AUMF could affect the 

legality of United States presence in Afghanistan. 

Let me ask you a second one. Would the absence of the AUMF 

affect the carrying out of CT operations by the Department of 

Defense? I know there are separate statutes dealing with CT 

operations by other agencies, but would the absence of an AUMF 

affect the carrying out of CT operations by the Department of 

Defense? 

FOREI-43947 with DISTILLER

22 

Mr. PRESTON. Not in terms of our ability to address imminent 

threat of armed attack. 

Senator KAINE. So, there would not be a worry about the absence 

of an AUMF affecting DOD’s CT operations. 

Mr. PRESTON. Not for that purpose. Now, in terms of the—the 

fact is that our authority on which we have relied up until now has 

been the AUMF. So, we would have to reexamine the impact of its 

repeal on our ongoing operations. 

Senator KAINE. So, there would be some potential effect on ongoing operations, in the absence of an AUMF, that you would—— 

Mr. PRESTON. There are certain—— 

Senator KAINE [continuing]. Want to engage with Congress—— 

Mr. PRESTON. And certainly—and that is, I think, what—I know 

for a fact—is what we are focusing on now within the administration, and looking forward to engaging with you, the committee, and 

other committees, in exploring. 

Senator KAINE. Just so you will know, when you say, ‘‘looking 

forward to engaging,’’ what we hear over here is—this is what 

engaging is. You know, we are—and so, when we come to a hearing 

and we are talking and we are told that we are—we can look forward to having somebody engage with us, it is like, ‘‘That is why 

we are here. That is why we are doing the hearing. We are 

engaging.’’ 

Let me ask a third one. Would the absence of an AU—and so, 

we do not like it to be deferred to a day that we may never get 

to. We are trying to do this right now. Would the absence of an 

AUMF raise legal questions about the continued detention of 

detainees at Guantanamo? 

Mr. PRESTON. Do you want to take that? 

Ms. MCLEOD. We are holding the detainees, pursuant to the Law 

of War. So, as long as we are in an armed conflict with al-Qaeda, 

I think we would have authority to continue to hold them. 

Senator KAINE. Okay, so if—— 

Mr. PRESTON. To answer—— 

Senator KAINE. Mr. Preston. 

Mr. PRESTON [continuing]. Further answer, the AUMF does provide domestic authority for those purposes. So, I think, in the 

absence of an AUMF—and this is one of the issues that we are 

looking at—we would have to focus on what its impact is on our 

ability to continue to hold detainees. 

Senator KAINE. So, if I could just summarize, what I have heard 

is, the administration does not have a current position about 

whether it would support an AUMF repeal. The issues of at least 

concern for examination, say, the administration believes it has the 

ability to counter imminent threats against the United States 

under constitutional powers or international laws of war. But, the 

absence of an AUMF would require some reexamination of DOD 

powers for certain CT operations, the continued detention of 

detainees at Guantanamo or domestically, the follow-on status of 

U.S. forces in Afghanistan. Those would be three areas where the 

absence of an AUMF would cause at least good lawyers to say, ‘‘We 

are not yet sure whether we want to repeal the AUMF.’’ 

Mr. PRESTON. Senator Kaine, those were all issues that are 

proper considerations and part of the mix as we focus on what the 

FOREI-43947 with DISTILLER

23 

legal framework should be in the future, after Iraq and Afghanistan. 

Senator KAINE. See, and this is helpful—and I will conclude, Mr. 

Chair—because if there is an effort to refine, we have to refine 

around what are the concerns. Carte blanche is a bad thing. Time 

to get done with the carte blanche grant of authority to the Executive. But, we do—we would want to come up—have a meaningful 

discussion about the particular areas—and we have just identified 

three—where there is at least a need to examine what might happen if the status quo were to change and there would be no AUMF. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you. 

Senator Rubio. 

Senator RUBIO. Thank you, Mr. Chairman. 

Mr. Preston, as I think you would—others have also ceded to in 

their statements and—again, al-Qaeda has changed—the nature of 

al-Qaeda has dramatically changed over the last number of years. 

It is now spread to a number of different countries. Just since 

2012, when we heard al-Qaeda was on the run, we have actually 

seen them establish safe havens in a number of places, including 

Syria. We are hearing reports, of course, of Iraq. Libya has become 

increasingly unstable. So, this is an evolving and, in many ways, 

more dangerous threat than it used to be. 

So, let me ask you. Under the administration’s interpretation of 

the 2001 AUMF, which of these affiliates are we currently authorized or able to use all necessary and appropriate force against? 

Which of the al-Qaeda affiliates are we authorized to use force 

against under the existing AUMF? 

Mr. PRESTON. Pardon me. Senator Rubio, I believe that the 

administration has pursued a policy of being as transparent on 

matters of national security as national security will permit. In this 

particular area, I think that we have been very clear in stating, for 

the Congress and publicly, where it is that U.S. forces are using 

military force under the AUMF, against whom, and on what basis. 

My prepared statement, my oral statement today, it clearly 

states the groups against which the United States is currently 

operating and which the United States military is currently applying military force under the authority of the AUMF. 

Senator RUBIO. I guess—the reason why I am asking that question is because the nature of al-Qaeda has changed since the 

AUMF was first passed. It has spread to different places. As I understand what you have said here today, the administration has 

not taken a position as to whether the existing AUMF should be 

expanded or revised to take into account the changing nature of the 

threat. 

Mr. PRESTON. Well, the President has made very clear that he 

would not support expanding the existing AUMF, but he has also 

made very clear that he fully supports the effort to examine the 

AUMF toward its refinement to ensure that it is narrowly tailored 

to meet that evolving threat. 

Senator RUBIO. Does he not support expanding the AUMF 

because he believes he does not need that authority, he already has 

it, or is it because he simply wants to bring to an end this conflict 

and he believes that the war against al-Qaeda is winding up? 

FOREI-43947 with DISTILLER

24 

Mr. PRESTON. I think he has explained it in terms of wanting 

authority toward a series of persistent, targeted efforts to dismantle specific networks of violent extremists that threaten our 

country and getting away from a regime in which there is unbound 

powers more suited for judicial armed conflict between nationstates. So, I think that—— 

Senator RUBIO. But, I guess the problem that I have is, I am trying to understand, Is it because he believes that the existing 

authorities he now has—because al-Qaeda continues to evolve and 

find new havens in which to operate from, and we cannot necessarily predict where that is, 10 years out, 5 years out, 3 years 

out. So, what I am trying to understand, from a legal perspective, 

is, Is it his believe that, under his inherent powers as Commander 

in Chief, he does not need the authority of the Congress to go after 

that in—or—and therefore, that is why we no longer need to 

expand the AUMF, or revise it to account for that new threat? 

Mr. PRESTON. Sir, I think his beliefs are best stated in his public 

statements, and, most particularly, the NDU speech and the State 

of the Union. What—— 

Senator RUBIO. Which State of the Union? Because in one State 

of the Union, he said that al-Qaeda was on the run and that—basically, he made it sound like that they were incapable of posing an 

ongoing threat. I think now he would not say that, today, given the 

realities that we have now seen emerge. 

Mr. PRESTON. Well, I was referring to the most recent State of 

the Union. But, my point is that we are engaged in an effort at addressing precisely the questions that you are posing, in terms of 

what future legal framework is best suited to adequately meet the 

terrorist threat as it has evolved, and narrowly tailored to meet 

that threat, and not granting unbound powers of all-out warfighting of the sort you get between nation-states. 

Senator RUBIO. But, going back to this analogy that you are 

using, of nation-states, it is, in fact, a reality, in the 21st century, 

that—one of the challenges we have is that these most dangerous 

conflicts that we now find ourself in are not against nation-states, 

they are against nonstate actors who do not necessarily have the 

confines of a nation-state, but they present a very serious risk to 

the United States. And so, I guess my problem with the terminology that you keep using, in terms of pulling us away from conflicts that may look like the ones we once had against nationstates, is that, in essence, that is the modern threat, is these—in 

addition to nation-states that pose a threat, are these nonstate 

actors that are a very serious threat. 

But, I want to pivot back to another point that I know is of interest to some members of the committee, and that is the following. 

We have seen open-source reporting in evidence, for example, that 

in Syria there are a large number of foreign fighters, including 

many Westerners. And I read an open-source reporting article 

today that estimated that as many as 100 Americans may be 

involved with jihadist groups within Syria. What authorities does 

the United States have to target individual American—even if they 

happen to be American citizens who are affiliated with radical 

groups such as these and are actively participating in their efforts 

to target America and America’s interests? 

FOREI-43947 with DISTILLER

25 

Ms. MCLEOD. Senator Rubio, the United States has the authority 

to target individuals, including Americans, who pose an imminent 

threat of armed attack to our country. And it is, of course, a very 

grave matter to decide to use lethal force against a U.S. citizen, 

but, in some cases, it has proven to be necessary. 

Senator RUBIO. Ms. McLeod, I wanted to ask you, actually—in 

your view, and in the view of the State Department, is al-Qaeda 

and its affiliates today—are they a widespread threat against 

America or are they a targeted threat against America? Are they 

just isolated groups that from time to time are problematic, or is 

this part of a larger growing, evolving problem that, quite frankly, 

at this stage, is unpredictable but seems to trend toward growth? 

Ms. MCLEOD. I think it is fair to say, as I believe the President 

said in his NDU speech, that, while core al-Qaeda has been gravely 

diminished, there is an evolving threat with respect to affiliates of 

al-Qaeda who are located in various parts of the world. 

Senator RUBIO. Is it not fair to say that, instead of one core 

al-Qaeda, we now see emerging eight or nine core al-Qaedas, just 

because they are now dispersed into different areas? And, in addition to al-Qaeda, by the way, they are not the only radical Islamic 

threat that the West faces—al-Qaeda in—as we define it. There are 

also other radical groups out there that we know pose a threat to 

American interests around the world, and even potentially in the 

homeland, right? 

Ms. MCLEOD. Yes, that is correct. And I believe—and some of 

those would not be covered by the AUMF. But, as I believe we said, 

we believe the President has authority to proceed against those 

groups if they, indeed—— 

Senator RUBIO. So, just to understand the position, there are 

additional groups, outside of the Taliban and al-Qaeda, that pose 

a serious threat to our national security, they are not covered 

under the AUMF, but you do not believe that we need to revise the 

AUMF to cover them, because you have existing constitutional 

authorities that allow you to target them if, in fact, they pose that 

threat. 

Ms. MCLEOD. I did not say that we have determined that there 

are other groups that pose an imminent threat to the United 

States. I said we would have the authority to proceed against them 

if we, indeed, made those determinations. 

Senator RUBIO. Without an AUMF expansion. 

Ms. MCLEOD. Yes. 

The CHAIRMAN. Senator Johnson. 

Senator JOHNSON. Thank you, Mr. Chair. 

I am finding this hearing quite confusing. I mean, it is true that, 

on May 23, 2013, President Obama did declare the global war on 

terror over? That is a correct statement, true? Does he believe 

that? I mean, you are working in this administration. Do you 

believe President Obama believes the global war on terror is over? 

Mr. PRESTON. Well, I guess I would just point out—I believe the 

view of the administration is that we are engaged in armed conflict. We are engaged in armed conflict with al-Qaeda, with the 

Taliban, and with associated forces. That conflict continues. 

FOREI-43947 with DISTILLER

26 

Senator JOHNSON. So, really, nobody in the administration really 

believes the global war on terror is over. I mean, we are still 

involved in conflict. 

Mr. PRESTON. I think the administration has not embraced the 

characterization of a global war on terror as if the enemy here were 

a religion or a set of techniques—— 

Senator JOHNSON. So, it is just—semantically, we are not in a 

global war on terror, we are just in a war against terrorist elements. Is that the—— 

Mr. PRESTON. We are at war with al-Qaeda, the Taliban, and 

associated forces, and we are actively involved in efforts to detect 

and address threats from terrorist elements otherwise. 

Senator JOHNSON. Do you believe the AUMF covered the current 

situation? 

Mr. PRESTON. I think the AUMF has served well in providing full 

authority to use military force against our enemies in those conflicts. 

Senator JOHNSON. So, why would the administration not have a 

position of whether or not they want the AUMF to continue or they 

want it repealed? 

Mr. PRESTON. I think the administration, through the President, 

almost a year ago, has clearly stated a policy favoring refinement 

and, ultimately, repeal of the statute. That, I do not think translates into, necessarily, immediate repeal of the statute. 

Senator JOHNSON. So, has the administration proposed any 

refinement or any redefinition of the AUMF? I mean, have they 

provided us language, in terms of what they think they need to 

handle the current situation? 

Ms. MCLEOD. No, Senator. We have not. We need to engage with 

you all to get your ideas and take them back. And we are actively—— 

Senator JOHNSON. Well, like Senator Kaine said, this is engagement. Why would you not lay down a proposal so we could evaluate 

it? I mean, why will the administration not—as President of the 

United States, I mean, he is in charge of foreign policy. He is the 

Commander in Chief. Why would he not bring us the language he 

needs to prosecute this evolving war on terror? I mean, that is 

what I would like to see. I do not think it is my job. I am not an 

attorney, I do not understand the complexity of these things. I 

would like to see the administration propose what it needs in a 

refined Authorization of Use for Military Force. 

The CHAIRMAN. Senator Johnson, if I might add, you know, it 

seems that the President, in May, established an objective, if you 

will, the repeal and—the refinement and, ultimately, the repeal. He 

has set us about a course to focus on and develop a future legal 

framework for the use of force. 

Senator JOHNSON. Okay. Oh, good, good. So, we are on a course. 

Is he going to provide any kind of roadmap, in terms of what he 

needs? He is the Commander in Chief. He is the one that needs 

the authorization. Is he going to come to Congress and let us know 

what he needs to stay within his constitutional powers to protect 

this Nation? Is he going to provide a proposal that we can review 

and that we can debate? Or are we supposed to come up with one? 

I mean, what is the process going to be? 

FOREI-43947 with DISTILLER

27 

Mr. PRESTON. I think, as he said, in May have last year, that he 

envisions the administration’s engaging with Congress, with this 

and other—— 

Senator JOHNSON. That was a year ago. 

Mr. PRESTON. I understand that. 

Senator JOHNSON. He declared the war on terror over, and now 

we are having a hearing, and there is no proposal, there is no language, there is really nothing, that I am hearing in this setting, in 

terms of what he wants, what he needs. When are we going to get 

that? How do we get to that point? Where does the engagement 

actually occur, then? 

Mr. PRESTON. The way I would describe it, sir, is that he has 

established an objective, a vision, if you will, that we formulate a 

post-Iraq and -Afghanistan legal framework. He is—— 

Senator JOHNSON. So, who is going to do that? 

Mr. PRESTON. He did not establish that as an immediate tasking, 

but as something that we need to take on deliberately and at the— 

and then engage with Congress—— 

Senator JOHNSON. So, why did he declare the war on terror over, 

a year ago? I mean, again, this makes no sense to me. 

Can you—again, I am not an attorney, I am relatively new to 

this process, here—can you define an ‘‘imminent threat’’? I mean, 

if we would do away with the AUMF, if we did not have one on 

the books—and I believe that the President does have the authority 

to protect this Nation—what is an ‘‘imminent threat’’? Can you 

explain that, in layman’s terms? How is that made operational? 

Ms. MCLEOD. Senator Johnson, most obviously an individual who 

is planning a specific attack against U.S. persons would be an 

‘‘imminent threat’’ against the United States. And a person that is 

hard to articulate all of the factors that would go into a decision 

of whether an individual poses an imminent threat, but I want to 

read to you from what the Attorney General said in explaining this 

concept, because the Justice Department has done some long and 

hard thinking on this. 

And he explained that the determination of whether an individual presents an imminent threat may incorporate consideration 

of the relevant window of opportunity to act against that individual, the possible harm that missing the window could create, 

and the likelihood of heading off further disastrous attacks against 

the United States. And then he said, with respect to the kind of 

terrorist threat that we are facing today, ‘‘We learned, on 9/11, that 

al-Qaeda has demonstrated the ability to strike with little or no 

notice, and to cause devastating casualties. Its leaders are continually planning attacks against the United States, and they do not 

behave like a traditional military, wearing uniforms, carrying arms 

openly, or amassing forces in preparation for an attack. Given 

these facts, the Constitution does not require the President to delay 

action until some theoretical end stage of planning when the precise time, place, and manner of an attack become clear. Such a 

requirement would create an unacceptably high risk that our 

efforts would fail and that Americans would be’’—— 

Senator JOHNSON. Okay, listen. I completely understand this is 

an amorphous, evolving, incredibly difficult threat. And I realize 

the standards are quite amorphous, as well. I guess what I am 

FOREI-43947 with DISTILLER

28 

asking for is that the administration—this President lead, that he 

comes and proposes to us what language, you know, what he needs 

to actually carry out his constitutional duty of protecting this 

Nation. That would be the way I would like to see this administration engage with us. 

Thank you, Mr. Chairman. 

Ms. MCLEOD. Senator, we will certainly take that back. 

The CHAIRMAN. Let me just, before I call the next member— 

I think, in fairness to these witnesses, policy is not their purview. 

Legal analysis is. And it is in that context that I invited these witnesses to appear before the committee, to get a legal analysis of the 

issues that surround the President and any potential AUMF. Members, of course, are free to pursue policy discussions. But, if I 

wanted to hear the policy of the administration today, I probably 

would have invited a different set of witnesses. 

Senator CORKER. Since that comment was made—— 

The CHAIRMAN. And I may do that in the future. 

Senator CORKER. Okay. I would just like to say, though, the fact 

is that what the witnesses have said is, they do not know what current operations rely on the AUMF. That is what they have said. 

So, in fairness, they may not be speaking to policy, but they cannot 

even answer a question as to what operations rely on what authorities. So—— 

The CHAIRMAN. Well, I am referring to the broader questions 

that have been raised here about, What does the administration 

view as the AUMF that they would desire? I do not think that that 

is in the bailiwick of the witnesses before us. In that context. 

But, Senator Murphy has deferred, for the moment. So, Senator 

Flake, you are up next. And you are going to defer to Senator 

McCain. 

Senator McCain. 

Senator MCCAIN. Thank you. 

And I appreciate the deference that Senator Flake gives to me, 

and I am sure it will be short-lived over time. [Laughter.] 

I thank you, Mr. Chairman, and I thank my friend. 

Mr. Preston, in testimony in the Senate Armed Services Committee, the Director of National Intelligence, James Clapper, and 

the Director of the DIA, agreed that al-Qaeda and its associated 

forces are not on the run and not on a path to defeat. Subsequent 

testimony in the Armed Services Committee, General Austin, General Rodriguez, and others, stated that the threat posed by 

al-Qaeda and its associated forces is increasing, not decreasing, in 

their geographic areas of responsibilities. 

Do you agree with our senior military and intelligence leaders, 

that al-Qaeda and its associated forces have not been defeated? 

Mr. PRESTON. As General Counsel—— 

Senator MCCAIN. You know, it is a fairly straightforward question. Do you agree that—with our senior military and intelligence—— 

Mr. PRESTON. My lane is the law, so I would defer to the senior 

intelligence and military—— 

Senator MCCAIN. So, you do not want to answer. 

Mr. PRESTON [continuing]. On matters of intelligence and operations. 

FOREI-43947 with DISTILLER

29 

Senator MCCAIN. I see. Working over at the Department of 

Defense, you would not have a view of that, even though you told 

this committee, at your confirmation, that you would answer questions, if asked. 

Mr. PRESTON. I would just—— 

Senator MCCAIN. In your personal opinion, do you think that the 

DOD counterterrorism operations, and those that conduct them, 

are better served by maintaining the 2001 AUMF unchanged, 

repealing, or updating it in some way, Mr. Preston? 

Mr. PRESTON. Senator McCain, that is precisely the set of issues 

that we agency lawyers in the administration are focused on and 

that the President, I think, has foretold engaging with Congress on. 

Senator MCCAIN. Again, a nonanswer. So, according to your 

answers to previous questions, either with or without AUMF 

authority, the United States can attack those that pose a imminent 

threat to the United States of America. Is that correct? 

Mr. PRESTON. I believe the legal authority is there, yes, sir. 

Senator MCCAIN. I see. And would you say that the people who 

attacked our Embassy—our consulate in Benghazi are a terrorist 

organization? 

Mr. PRESTON. I understand that they are, yes, sir. 

Senator MCCAIN. So, therefore, would we have the authority to 

strike, with a drone, members of that organization that attacked 

our consulate and killed four Americans? 

Mr. PRESTON. I think, if and when a concrete situation is presented, the judgment is that that group presents the requisite 

threat, then there is that authority. Or if that group is determined 

to fall within the AUMF, there would be that authority. 

Senator MCCAIN. So, you just agreed that they were part of a 

terrorist organization, right? 

Mr. PRESTON. Yes, sir. 

Senator MCCAIN. So, if they are part of a terrorist organization, 

according to the interpretation of the AUMF, then is it your view 

the President has the authority to attack them and eliminate 

them? 

Mr. PRESTON. I think there are multiple potential sources of—— 

Senator MCCAIN. I am asking, in your view, does the President, 

under the AUMF and the authorities that you say he has, do they 

have a legal right to strike members of the organization that committed the attack on Benghazi? 

Mr. PRESTON. There is the authority to use military force if they 

present an imminent threat and/or if they qualify as an associated 

force of al-Qaeda. So, the answer—— 

Senator MCCAIN. I just asked you if they did, and you said yes. 

Mr. PRESTON. Well, sir, that depends on the particular factual 

circumstances, and it is a judgment that is made on that basis. 

But, the answer—— 

Senator MCCAIN. Whew. 

Mr. PRESTON. I think the short answer is that our government 

is committed to applying all lawfully available instruments of 

national power. That includes law enforcement authority—— 

Senator MCCAIN. I am asking, specifically, about a situation 

where four Americans were killed, that was carried out by a terrorist organization—that has been the conclusion—whether the 

FOREI-43947 with DISTILLER

30 

President of the United States, in your legal opinion, has the 

authority to strike these people and eliminate them. Now, that is 

a pretty straightforward question. 

Mr. PRESTON. And I think I have tried to answer it as 

straightforwardly—— 

Senator MCCAIN. Then the answer is ‘‘yes’’ or ‘‘no.’’ Does he have 

the authority, or not? 

Mr. PRESTON. I believe—— 

Senator MCCAIN. You are not being straightforward, sir. 

Mr. PRESTON. There are two sources of authority, and—— 

Senator MCCAIN. I am asking whether he has the authority, not 

the sources of authority. 

Mr. PRESTON. And that requires a determination as to—— 

Senator MCCAIN. That is a third nonanswer. Nicely done. You 

are—— 

Mr. PRESTON. I have tried my best. 

Senator MCCAIN. It is remarkable. 

So, does the—the President said he wants to refine and, ultimately, repeal the AUMF’s mandate. That was his speech at the— 

President’s speech in the National Defense University. Does that 

mean that, if the AUMF were repealed, that that would mean that 

the detention facility at Guantanamo would be, then, closed? 

Mr. PRESTON. I think that is a critical issue that is in the mix, 

inasmuch as the AUMF is a domestic source of authority for—— 

Senator MCCAIN. I am asking, again, Does that mean that the 

detention facility at Guantanamo would then required to be closed 

if the AUMF were, as the President desires, ultimately repealed? 

Mr. PRESTON. It would create a substantial question about our 

ability to do long-term detention, which is what is going on at the 

Guantanamo facility. 

Senator MCCAIN. I am wasting the committee’s time. 

The CHAIRMAN. Senator Murphy. 

Senator MURPHY. Thank you very much, Mr. Chairman. 

This morning, I have, unfortunately, missed part of the hearing. 

I was under the wonderful care of a constituent of Senator Kaine’s, 

getting a root canal. And it sounds like the experience of the witnesses and perhaps some members of this committee may have 

been more or less pleasant than mine—experience this morning. 

But, I am glad to be here. 

And what has been explained to me is that the panel has given 

a pretty robust defense of the administration’s Article 2 powers. 

And I guess if I was sitting in your seat, I would probably do the 

same, or some version of the same, with maybe some more specific 

answers as to the hypotheticals that were, I think, pretty clear to 

be posed today. 

So, let me ask you a broader question. I think there is a reason 

why it is Article 2 that lays out the administration’s powers, and 

not Article 1. I think there is a reason why we are all subject to 

Article 1, and there are very specific powers given to Congress with 

respect to foreign affairs in Article 1: the power to declare war and 

the power to raise armies. 

And so, I am just going to ask you—you are both lawyers, you 

both have studied both articles well—I am just going to ask a very 

broad question, which is, In your mind, where does Article 2 powFOREI-43947 with DISTILLER

31 

ers end and Article 1 powers begin? What is your rendering of 

what is left in Article 1 if we understand the broad rendering of 

Article 2 powers that you have explained today? Tell us what— 

instead of explaining what your role is, let me flip it. Explain to 

us what our role is. 

Mr. PRESTON. Senator, let me start with a very general proposition, which is the strongly held belief that our government works 

best, and our Nation is strongest, in matters of military force and 

war, when both of the political branches are working together. So, 

the short, and perhaps most important, answer is, both Congress 

and the Executive need, and ought, to work together on matters of 

military force and war. 

Beyond that, it is, I think, very much a part of the President’s 

initiative, in May at the NDU speech, in inviting dialogue with 

Congress to ensure that the administration is engaging with Congress as we seek to develop that future legal framework. 

Congress obviously enacted the 2001 AUMF and provided the 

congressional imprimatur for the use of force in that setting, and 

we very much look forward to engaging with Congress as we seek 

to shape what that follow-on or future legal framework will look 

like. 

Senator MURPHY. Ms. McLeod. 

Ms. MCLEOD. Senator Murphy, I do not think I am going to be 

able, even though I am a lawyer, to give you a precise delineation 

of authority between the Congress and the executive branch in the 

area of the use of military force. I think this has been the subject 

of much debate in the scholarly world, and I think that the War 

Powers Resolution was enacted to try and achieve a mechanism 

under which we could consult with the Congress before using force, 

and provide reporting, and, if necessary, get authorization. 

Senator MURPHY. You clearly believe that if an individual has 

made a threat against the United States and is carrying it out, you 

have existing authority, with or without the AUMF, to pursue that 

individual. Correct? 

Ms. MCLEOD. If they pose an imminent threat, yes. But, I would 

point out, there are other constraints that can come into play. If 

that individual is in a different country, there are certain considerations of sovereignty that we have to address. So, you have to consider whether you can get consent; or, if not, you have to consider 

whether that country is unable or unwilling to address the threat 

to us, in which case we would still feel we were able to—— 

Senator MURPHY. But, those are considerations separate and 

aside from whether or not you need consent from Congress. 

Ms. MCLEOD. Yes. 

Senator MURPHY. If an organization has, in your mind, constituted an imminent threat, is there any limitation on the size of 

that organization that would require you to come to the Congress, 

so long as you had made a determination that they posed an imminent threat? 

Ms. MCLEOD. No, I do not—I do not think so. 

Senator MURPHY. A nation harboring an entity that poses an imminent threat, in coordination with that entity that poses an imminent threat, if that country has not, itself, expressed a threat to the 

United States, but is harboring an entity or organization that poses 

FOREI-43947 with DISTILLER

32 

an imminent threat, in order to pursue conduct against that 

nation, do you need prior congressional authorization? 

Ms. MCLEOD. Well, I would say that our actions taken in selfdefense always have to be necessary and proportionate. So, we 

would have to go through that analysis before considering what 

action, if any, we could take against a state that harbored terrorists. And we would have to consider—I think I am—we would have 

to think about whether that—whether individuals in that state 

were—or the government of that state—actually posed an imminent threat. 

Senator MURPHY. And there would not necessarily be a time limitation on it. 

So, let me get this straight. So, you are suggesting that the state, 

itself, would have to pose an imminent threat, not simply harboring or providing or hosting an organization that provides an 

imminent threat. 

Ms. MCLEOD. I think I need to think about your question further. 

I cannot give you a definitive answer. 

Senator MURPHY. I will—and my line of questioning there— 

I mean, to the extent that we—I will express the same level of frustration that others on the panel have faced here to—that is a critical question—in part, because, you know, we have dealt with that 

question in real terms over the last decade. We had a nation that 

harbored a terrorist group that, arguably, did not present an independent threat to the United States. In that case, there was an 

authorization of military force. 

But, a suggestion that the Executive can undertake an action 

against a sovereign, independent nation simply because they have 

made a decision to harbor that organization, and not have to come 

to the United States Congress, with war-making authorities, for 

that authorization, that is—I would love a clear ‘‘no’’ to that question. I would love a clear indication that, if a nation has not presented an imminent threat and is simply harboring an organization, that, in order to wage war against a sovereign nation, you 

would have to come to the United States Congress for authorization. 

Ms. MCLEOD. Senator, I would note that we did just that in seeking—— 

Senator MURPHY. I understand you did, but to the—but, it would 

be nice to hear, very clearly, that your interpretation of the law is 

that you are always required, in that circumstance, to come to the 

Congress. 

Thank you. 

The CHAIRMAN. Senator Flake. 

Senator FLAKE. Thank you. 

I planned, but I believe it was already asked by Senator Corker, 

just, in the absence of—if the AUMF were to sunset tomorrow, 

what advice would you give to the President, in terms of what 

activities we are involved in around the world that we would need 

to cease. And I understand that you are—you say that—none of 

them, that you would not offer any advice to disengage or to not 

continue anything that is being done. Is that—— 

Mr. PRESTON. I think, Senator, what I would say is that the 

impact of that on operations in Afghanistan, against al-Qaeda elseFOREI-43947 with DISTILLER

33 

where, detention operations—those are all things that we would 

need to examine in framing whatever future follow-on legal framework would be in place. 

The point we were making earlier is that, on the fundamental 

question of authority to take military action in order to address 

and protect the country from imminent threat of armed attack, 

that that authority does exist in the Constitution with the President, quite apart from the presence of a legislative authorization. 

Senator FLAKE. There has been quite a bit of talk of hypotheticals, here, what would happen here or there. Why do we not take 

an actual case, here. And I would like your explanation as to where 

the President got his authority. 

Let us take Libya. In the spring of 2011, was Libya a sovereign 

country? 

Ms. MCLEOD. Yes, it was. 

Senator FLAKE. Was there an imminent threat posed to the 

United States? 

Ms. MCLEOD. In the case of Libya, the U.S. took military action 

as a matter of international law, pursuant to an authorization by 

the U.N. Security Council, which has authority to take measures 

that are binding on states or can give authority to states to take 

action in order to address threats to peace and security. 

Senator FLAKE. So, not pursuant to any AUMF here. But, we 

took military action that was not under the auspices of the United 

Nations, though. 

Ms. MCLEOD. No, it was not under the auspices, per se, but the 

Security Council resolutions specifically authorized NATO and others to take the military action. 

Senator FLAKE. We took military action, though, independent of 

the United Nations, on our own. We put Osprey aircraft there, we 

needed to rescue a pilot later. So, this was not action that was pursuant to a U.N. Security Council resolution, was it not? This is 

action that we took independently, still. 

Ms. MCLEOD. I believe it was pursuant to the U.N. Security 

Council resolution, Senator. 

Senator FLAKE. But, right now we are moving troops to Italy to 

be closer to the situation in Libya. If we were to move in, what auspices would we be moving in now? I think we hear reports that 

four additional Osprey aircraft arrived overnight in Italy to join 

four B–52s and 200 marines that had been moved there last week. 

Libya, things are going south there pretty quickly. If we were to 

move into Libya and take some action there, would it be under— 

under what authority would it be? 

Ms. MCLEOD. Senator, I believe the troops that are in Italy are 

being positioned there in case our personnel at the U.S. Embassy 

need to be evacuated, which is a very standard—— 

Senator FLAKE. Certainly. 

Ms. MCLEOD [continuing]. Operation that we—— 

Senator FLAKE. Nobody would argue with that. But, additional 

action that was taken—that would be taken would—would it be 

pursuant to some U.N. Security Council resolution or under the 

President’s Article 2 powers or—certainly not under any AUMF 

that has been passed here. 

FOREI-43947 with DISTILLER

34 

Ms. MCLEOD. Well, I am not aware that any sort of military 

action, beyond the possibility of going in and extracting our personnel, has been under discussion. 

Senator FLAKE. All right. 

Well, I said I share the frustration that others here have 

expressed that we were told that an additional—you know, that the 

President would like to refine the AUMF, and ultimately eliminate 

it. But, when asked what would change if the AUMF were absent 

tomorrow and we did not have it, then we do not get much of 

answer on what would change, in terms of any activities we are 

involved with now. So, it leaves Congress with not much direction 

from the administration as to what the administration really 

wants, here. So, it is just—it is a bit confusing. 

Thank you. 

The CHAIRMAN. Let me—I have a couple of other questions, and 

there may be one or two members who have some—let me—look, 

I think part of our challenge, here, is that this area of the law is 

not fully defined. And so, that is—at least from my perspective— 

so, I think that is part of the challenge. But, I do want to clarify 

some things, or at least understand clearly, for the record, where 

you stand. 

In pursuance of Senator Flake’s questions, our action in Libya 

was a humanitarian action, in a sense, maybe subject to, you know, 

a NATO action and maybe subject to some Security Council resolutions, but does it—is it your opinion that those authorizations of a 

NATO operation or a Security Council resolution allows a President, who is not responding to imminent threat, to circumvent the 

United States Congress, in terms of an authorization for the use 

of force? Because that is basically what I heard you say. And if I 

am wrong about understanding what you said, please correct me. 

Ms. MCLEOD. No, Senator, that was not what I was saying. 

The CHAIRMAN. Okay. 

Ms. MCLEOD. I was talking about—— 

The CHAIRMAN. What did you say? 

Ms. MCLEOD [continuing]. International law authority for us to 

use force in that case. 

The CHAIRMAN. But, in international law authority to use force, 

that is what gives you the imprimatur to go act against a certain 

country. But, to use the forces of the United States even under that 

international law, would you not have to come to the Congress to 

get authorization to act? Especially when it is not an imminentthreat situation. 

Ms. MCLEOD. In the case of Libya, we did file a report, if not 

more than one report, under the War Powers Resolution, and we 

consulted with the Congress on the actions we were taking. 

The CHAIRMAN. The—— 

Ms. MCLEOD. But, it is true, we did not seek prior authorization. 

The CHAIRMAN. Yes. And even under the War Powers Act, of 

course, there would be an action by the President, but, within a 

certain time period, there would have to be a response from the 

Congress. I am concerned, while I believe in Security Council resolutions to create international support in efforts and direction to 

intervene in the sovereignty of another country, I am still am concerned that, when we want to participate under such an umbrella, 

FOREI-43947 with DISTILLER

35 

that there must be an authorization of the Congress to do so if it 

is not an imminent-threat situation. 

So, I would like you to all go rethink that and come back at some 

point, either you or policymakers, to define for us what your view 

is. It may not be my view, but I would like to hear what your view 

is. 

Let me ask you, Did the President need the authorization for the 

use of force, had he decided to act in the chemical weapons issue 

in Syria? 

[Pause.] 

Ms. MCLEOD. As you know, the President ultimately did decide 

that he would seek congressional authorization. 

The CHAIRMAN. I know he did. But, my question is, Did he need 

to do that, or do you believe he had the authorities, based upon 

what had transpired in Syria with Assad using chemical weapons 

against his people? Did he need authority, or did he not need 

authority? Did he have the authority to act, independent of the 

Congress? 

Ms. MCLEOD. Senator, it would be my view, but I—mine was 

not—I was not the one who made this decision. It would be my 

view that he would have the authority to act, but that it was prudent, as he did, to seek the authorization—— 

The CHAIRMAN. You believe he had the authority act, notwithstanding. 

Now, that is not, per se, an imminent threat to the United 

States, as far as I can tell. It is certainly something I strongly supported giving the President the power for, as did most of the members of this committee. But, there was no indication, at least to my 

knowledge, that those chemical weapons would be used against 

U.S. citizens, U.S. forces, or whatnot. So, this is where we need to 

define what is the standard. 

Let me ask you a third question. And you can divvy up your responses, as may be appropriate, between your two respective roles. 

The United States plans to end its combat operations in Afghanistan by the end of the year. While the 2001 AUMF has been the 

primary basis in domestic law authorizing these operations, its 

authorization is not limited to operations in Afghanistan. Nevertheless, the end of combat operations in Afghanistan, and the absence 

of sustained combat operations under the 2001 AUMF in any other 

theater, will undoubtedly have implications for the continued use 

of this authority in other contexts. So, could you please describe for 

the committee what you anticipate to be the consequences, in terms 

of the limits of legal authority, of the end of Afghanistan combat 

operations in the following three areas: one, detention operations 

at Guantanamo Bay in Cuba; two, targeted killing operations 

against al-Qaeda and associated forces; and three, Defense Department counterterrorism operations, including relevant security 

assistance? 

Mr. PRESTON. Let me tackle that one, Mr. Chairman. 

The CHAIRMAN. Okay. 

Mr. PRESTON. Ms. McLeod can supplement, as appropriate. And 

let me address that, first, generally, and then specifically the areas 

you mentioned. 

FOREI-43947 with DISTILLER

36 

The President has made clear that it is not in our national interest to remain on a perpetual wartime footing, and that this war, 

like all others, will come to an end. At the same time, while the 

United States military mission in Afghanistan, after 2014, is an 

important milestone, it does not necessarily mark the end of the 

armed conflict with the Taliban. Now, of course, as we seek to finalize what precisely the presence and mission in Afghanistan will 

be, we would better able to judge its impact on that armed conflict. 

By similar token, even when the conflict with the Taliban ends, 

that will not necessarily mark the end of the conflict with 

al-Qaeda. And it is in that context that we look at the three issues 

that you raised. 

First, I believe, was detention. The United States will continue 

to have legal authority to detain individuals from al-Qaeda, the 

Taliban, associated forces, until the end of the armed conflict, as 

a matter of international law and, as we have discussed earlier, 

under the AUMF. 

In terms of the targeted strikes that you were referring to—and 

I would say, more broadly, direct action against counterterrorism 

targets, which would include capture operations or lethal operations—again, while the United States mission in Afghanistan is 

a—in its narrowing post-2014 is an important consideration—we 

will retain the authority to use force, as appropriate, against our 

enemies in the armed conflict and otherwise to protect to the country. 

The third area that you mentioned is foreign assistance or other 

counterterrorism activities and assistance. And that, again, notwithstanding the narrowing of the mission in Afghanistan, we 

would expect that DOD’s assistance efforts—and, in particular, 

capacity-building by partner countries—will continue apace and 

unabated. 

The CHAIRMAN. So, your answer, then, to my three specific questions is that you will have continuing legal authority, notwithstanding the ending of that conflict or any narrowing or repealing 

of the AUMF under which you are operating in Afghanistan. 

Mr. PRESTON. I agree with most of what you said, sir. With the 

end of the conflict—and we do face issues about—under international law principles—the extent to which use of force in certain 

applications would continue to be justified under international law. 

The CHAIRMAN. Let me say one final thing and then I will turn 

to Senator Corker. 

Would it be fair to say that statutory authorization essentially 

provides a broader authority on which to act militarily, particularly 

in the absence of an immediate threat? 

Mr. PRESTON. It certainly can. And in the case of the AUMF, it 

does represent a broad grant of authority. 

The CHAIRMAN. And an AUMF also transcends the War Power 

Resolution, because it requires the President to come to Congress 

for authorization 30 days after insertion of U.S. forces in hostilities. 

Mr. PRESTON. That is right. A legislated authorization provides 

Congress’ participation in that decision. 

The CHAIRMAN. Senator Corker. 

Senator CORKER. Mr. Chairman, I will be very brief. I do want 

to thank you for having this hearing. I think it is been very eduFOREI-43947 with DISTILLER

37 

cational for all involved, even though it has been difficult to get 

direct answers. I think it has really highlighted, in many ways, a 

real debate that needs to occur here in action taken by the 

committee. 

I do want to say, for my friends who may not have been here 

during the Libya debate—I know that Harold Koh is here and will 

be a witness in just a moment. I know sometimes people leave 

these hearings. But, when we challenged the administration over 

the War Powers Act issue as we were bombing Libya—bombing 

Libya—Mr. Koh testified, on behalf of the State Department, that 

we were not involved in hostilities in Libya. 

So, I just want to highlight the fact that this is a real debate that 

we need to have. There are people who, on behalf of the administration, want to give any answer that works for the administration, 

will justify actions that, to me, go beyond. And so, I really want to 

thank you so much for having this debate. 

And I would like to ask Mr. Preston which of these groups—I am 

going to name some groups—you are authorized to go after under 

the 9/11 AUMF. 

AQAP, yes or no? 

Mr. PRESTON. As I said in my statement, we have previously disclosed that AQAP is a part of or—— 

Senator CORKER. Is it yes—I want to move through this quickly. 

Yes or no? 

Mr. PRESTON. It—yes, sir. 

Senator CORKER. ISIS? 

Mr. PRESTON. Sir, with respect to groups in addition to the ones 

that—— 

Senator CORKER. Yes or no? I want a yes-or-no answer. Are you 

authorized, under the 9/11 AUMF, to go after ISIS? 

Mr. PRESTON. Sir, I cannot speak publicly about which groups— 

particular groups we may or may not have determined—— 

Senator CORKER. Is this a classified answer? Is that the reason? 

Mr. PRESTON. That is my understanding, yes, sir. 

Senator CORKER. So, I do wonder how—again, this gets back to 

a topic many of us discussed last night—I do not know how we can 

debate these issues, when you cannot even tell us whether we can 

or cannot go after groups based on authorizations that Congress 

itself passed. I just want to highlight that. 

AQIM. Can we go after AQIM? Yes—— 

Mr. PRESTON. Same answer—— 

Senator CORKER [continuing]. Or no? 

Mr. PRESTON [continuing]. Sir—— 

Senator CORKER. Same answer. Classified, you cannot tell us—— 

Mr. PRESTON. We would—— 

Senator CORKER [continuing]. Whether we can go after groups in 

northern Africa that are committing—— 

Mr. PRESTON. We have publicly identified the groups that we are 

operating against using military force under AUMF. As for other 

groups, whether or not they would qualify is a determination that 

is made as concrete situations are presented. 

Senator CORKER. Well, there are very concrete situations happening. So, right now, you have made a determination, I guess, 

with ISIS. Very concrete things are happening there in AQIM. So, 

FOREI-43947 with DISTILLER

38 

I assume, in a classified setting, you could share with us whether, 

in fact, you have the authorities to go after these groups. Is that 

correct? 

Mr. PRESTON. In a classified setting, we could discuss the available classified intelligence and how the standards—— 

Senator CORKER. No, I just want to know if we can or cannot. 

Can you tell me those things in a classified setting? 

Mr. PRESTON. That would have to take place in a classified 

setting. 

Senator CORKER. Okay. Well, I will set that up the first day we 

are back, and I look forward to that meeting. 

Al-Nusra. 

Mr. PRESTON. Sir, again, the groups that we have not identified 

as groups we are currently operating against, the intelligence and 

application of the standards under the AUMF is not something 

that we are prepared to discuss in an open session. 

Senator CORKER. But, in a classified setting, you will share that 

with the entire committee. 

Mr. PRESTON. That would have to take place in a classified 

setting. 

Senator CORKER. Well, since we—I just will close with this. Ms. 

McLeod, I know I gave you somewhat of a hard time, and I know 

that you are sent up here on behalf of the State Department to represent the State Department. And I actually want to say to you 

that my wrath should really be taken toward the State Department 

and not yourself. We asked people to come up here today to answer 

questions that I think are of a great challenge for our Nation to 

deal with. And just as Ann Patterson came up here 56 days ago 

and told us that she would be glad to lay out to us what our policy 

was in Syria, it has never happened. I think you all know. 

And I realized, actually, last night, while the administration has 

been hiding behind intelligence, not being able to share it—I realized, last night, that the administration has no policy in Syria, has 

no strategy in Syria, and that is why they have not been willing 

to talk with us about this. It just dawned on me last night why this 

stonewalling is taking place. There is no objective there other than 

acting like we are doing something. 

And I just want to say to this group, it is obvious the administration has no opinion—has no opinion—on whether we should refine 

the AUMF, or not. 

And I just want to say to Chad, who works on behalf of the State 

Department, you would serve the State Department much better by 

actually sending folks up here who can speak to these issues, or 

just tell us that there is no opinion that the State Department has. 

And so, with that, I thank you both for being here. I apologize, 

on behalf of the Departments you represent, them sending you up 

here, when they really do not have, quote—as the Chairman referenced appropriately, they have not made any policy statements. 

I do hope the committee will take this issue up. And again, I 

want to thank the chairman for his diligence. My guess is—this 

has peaked a lot of interest here, and my guess is that if we are 

going to be responsible Senators, we should respond. 

The CHAIRMAN. Senator Durbin. 

FOREI-43947 with DISTILLER

39 

Senator DURBIN. Very briefly, because I know there is another 

panel. 

I do not know that there were any Members of the Senate who 

really understood, when we voted on this Authorization for the Use 

of Military Force, what we were voting for. We were reacting to the 

9/11 attack and saying, ‘‘Go after those responsible.’’ None of us 

could have envisioned that we were voting for the longest war in 

the history of the United States, which still goes on, to this day. 

None of us could have understood the military aspects and nonmilitary aspects of the commitment that we were making. And I 

think it is entirely appropriate, though monumentally challenging, 

for us to take on a redefinition of the Authorization of the Use of 

Military Force. 

And I would say to my friend—and he is my friend—Senator 

Corker, of Tennessee—his frustration over this reflects many 

things, not the least of which are the rules of the Senate about how 

information is exchanged and given to Members of the Senate. As 

I mentioned to him last night in a separate meeting, in a separate 

capacity from this committee, I am told things that other Members 

are not. And I understand when witnesses come before us and say, 

‘‘I—you know, I am dutybound not to disclose classified information 

in an open public hearing. It may endanger lives of Americans and 

others.’’ That is a responsibility that I am sure you take very seriously. And I would not put you on the spot as to whether or not 

any specific piece of information—your right to make that claim. 

But, I do believe we need to discuss, as an institution, the exchange 

of more information so that we understand the nature of this conflict we are now in with terrorism. It is much different than any 

of us envisioned when we were voting that day on the Authorization of the Use of Military Force. 

Thank you, Mr. Chairman. 

Mr. PRESTON. Sir, if I could just thank Senator Durbin for those 

comments, and particularly about the information. We will take 

back Senator Corker’s request for additional information that I am 

not at liberty to provide. 

Thank you. 

The CHAIRMAN. Is there any other member who has any questions? [No response.] 

If not, with the appreciation of the committee, this panel is 

excused. 

Let me call up our next panel, a very important panel: The Honorable Harold Koh, Sterling Professor of International Law, Yale 

Law School, and former State Department Legal Adviser; and the 

Honorable Michael Mukasey, partner, Debevoise & Plimpton, 

former Attorney General of the United States. 

I welcome both of you to the committee. We appreciate your willingness to share your insights. Your full statements are going to 

be included in the record, without objection. So, I would ask you 

to try to summarize them in about 5 minutes or so. And this way, 

we can get into the type of dialogue that we just had with the previous panel. 

And, with that, Mr. Koh, you are recognized. 

FOREI-43947 with DISTILLER

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STATEMENT OF HON. HAROLD HONGJU KOH, STERLING 

PROFESSOR OF INTERNATIONAL LAW, YALE LAW SCHOOL, 

FORMER STATE DEPARTMENT LEGAL ADVISER, NEW 

HAVEN, CT 

Mr. KOH. Thank you, Mr. Chair, Ranking Member Corker, for 

inviting me back. 

A year ago, the President gave a speech, at the National Defense 

University, that outlined elements of his post-9/11 counterterrorism 

strategy. And there are three aspects that I think are particularly 

important and achievable, which I have described in my written 

statement: First, eventually ending the war with al-Qaeda and the 

associated forces when the facts on the ground permit. And that is 

the key. The nature of the threat on the ground is what matters 

and is logically prior to any legal action. Second, eventually repealing the AUMF. And third, in the meantime, narrowing its 

mandate. 

And, to me, each of these three elements—ending the war with 

al-Qaeda, seeking repeal, and narrowing the AUMF—is possible, in 

time. So, there are three questions to which each—the answer, I 

think, should be ‘‘yes.’’ 

Should our long-term goal be ending the war? Yes. I think we 

should choose an exit strategy over a perpetual war, because war 

has a distorting effect on our priorities, our economies, and our liberties. And, under our Constitution, peace is the norm; perpetual 

war is a distortion. 

And I do not think that Congress should extend or expand the 

war, over the President’s objection. First of all, it is Congress’ role 

to end wars. And, secondly, in our entire constitutional history, I 

know of no example where Congress has enacted a law to expand 

or extend a war, over the explicit objection of the President. And 

this should not be the first such occasion. So, should we end the 

war? Yes. 

Second, could you eventually, when the facts on the ground 

allow, repeal the AUMF without leaving legal gaps in our authority 

to target or detain? And the answer is, ‘‘yes,’’ when the situation 

on the ground permits. 

With regard to both targeting and detention, think of it as belt 

and suspenders. Last May, the President signed a Presidential policy guidance that formalized the executive branch’s targeting practice and made clear that they conform to domestic and international law. And that lawfulness of this executive branch action 

depends on two things: the existence of an armed conflict with 

al-Qaeda, the Taliban, and associated forces, but it separately—and 

this is the suspenders part—rests on the President’s lawful authority to act in self-defense against continuing and imminent threats 

to the United States. 

Now, if al-Qaeda is defeated on the ground and you do not need 

to have an armed conflict with them, but all threats are not ended, 

you can remove the belt—namely, repeal the AUMF—and still 

have enough legal authority on your side through the Law of SelfDefense. And I describe, on pages 7 to 9 of my testimony, that if 

Congress would like this to be done in a statute, as opposed to Article 2 constitutional authority, it could codify the self-defense 

FOREI-43947 with DISTILLER

41 

authority with regard to continuing and imminent threats so that 

the Congress could place conditions on reporting and the like. 

What about detention? Same thing. If the facts on the ground 

lead to the situation where the United States has transitioned 

Afghan detention to Afghan control, where traditional detention 

tools can be used for some of the other individuals and can work 

with Congress on a plan to close Guantanamo, at that point there 

would be no need for Law of War detention authority. What the 

AUMF gives you is the authority to act against belligerent combatants as targets or as detainees. And if you do not need to do that 

anymore, you do not need the AUMF anymore. 

Third, and finally, does it make sense to amend the AUMF? My 

view is, to expand it and create an ongoing war is not a good idea. 

No new legislation is better than bad new legislation. But, if Congress wants to set the stage for repeal by narrowing the AUMF, I 

suggest, in pages 12 through 14 of my written statement, how this 

could be done, and I suggest four particular steps Congress might 

consider: first, a sunset provision; second, stronger congressional 

reporting requirements; third, stronger public reporting requirements, particularly about civilian casualties; and finally, exploration of some kind of post/ex-post external review mechanism to 

examine the legality of past drone strikes. 

So, in closing, the three goals—eventually ending the war, eventually seeking repeal, and narrowing the AUMF—are important, 

they are achievable, and they are worthy of thoughtful consideration by this committee and Congress. 

My point is simple. The AUMF is not the only law we have. We 

have other laws. We should not treat the AUMF as a perpetual allpurpose security blanket that can be distorted and that will itself 

become a distorting force. 

We can, in time, when the facts on the ground permit, repeal the 

AUMF and rely on other authorities to fill these gaps. And not to 

do so, from that point, I think would be bad for our counterterrorism policy and bad for our Constitution. 

Thank you. 

[The prepared statement of Mr. Koh follows:] 

PREPARED STATEMENT OF HAROLD KONGJU KOH

Thank you, Mr. Chairman and Members of the committee, for inviting me before 

this committee today. 

I am Sterling Professor of International Law at the Yale Law School, where since 

1985, I have taught international law, national security law, and the law of U.S. 

foreign relations.1 For 10 years, I served in the U.S. Government, most recently 

from 2009 to 2013 as Legal Adviser of the U.S. Department of State.2 Having 

worked daily during my time as Legal Adviser on counterterrorism issues, I appear 

today to support the President’s commitment, stated in his important speech at the 

National Defense University last May, to ‘‘continue to fight terrorism without keeping America on a perpetual wartime footing.’’ 3

When President Obama took office, the United States was engaged in congressionally authorized armed conflicts in Iraq, Afghanistan, and against al-Qaeda and its 

co-belligerents. Since then, the Iraq conflict has ended.4 The President has declared 

his intent to withdraw combat troops from Afghanistan by the end of this calendar 

year.5

Today, let me explain why, after Iraq and Afghanistan, this country’s counterterrorism policy should include three important and achievable elements of the President’s NDU proposal: ending the war with al-Qaeda and its co-belligerents; repealing the Authorization for Use of Military Force (AUMF) enacted on September 18, 

2001; 6 and prior to repeal, narrowing the AUMF’s mandate. I agree with the PresiFOREI-43947 with DISTILLER

42 

dent: first, that the armed conflict that began against al-Qaeda and its co-belligerents nearly 13 years ago, ‘‘like all wars, must end’’; second, that Congress should 

aim to ‘‘ultimately repeal, the mandate’’ of the AUMF; and third, that in the interim, Congress should explore ways to narrow the AUMF rather than ‘‘to expand 

the AUMF’s mandate further.’’ 7

I. ENDING THE WAR WITH AL-QAEDA AND ITS COBELLIGERENTS

In 4 months time, this coming September, the United States armed conflict with 

al-Qaeda will turn 13 years old. That is 9 years longer than either the Civil War 

or World War II, and nearly 5 years longer than the Revolutionary War. As I argued 

last year in a speech at Oxford, this conflict has become so protracted that it has 

come to feel like a ‘‘Forever War.’’ 8 It has changed the nature of our foreign policy, 

consumed our new Millennium, and made it hard to remember what the world 

looked like before September 11. 

In his NDU speech last May, the President summarized why we should reject 

indefinite war in favor of an ‘‘exit strategy’’ to bring this protracted conflict with 

al-Qaeda, like all wars, to an end: 

[T]he choices we make about war can impact—in sometimes unintended 

ways—the openness and freedom on which our way of life depends. And 

that is why I intend to engage Congress about the existing Authorization to 

Use Military Force, or AUMF, to determine how we can continue to fight terrorism without keeping America on a perpetual wartime footing . . . The 

Afghan war is coming to an end. Core al-Qaeda is a shell of its former self. 

Groups like AQAP must be dealt with, but in the years to come, not every 

collection of thugs that label themselves al-Qaeda will pose a credible 

threat to the United States. Unless we discipline our thinking, our definitions, our actions, we may be drawn into more wars we don’t need to fight, 

or continue to grant Presidents unbound powers more suited for traditional 

armed conflicts between nation states.9

Last October, I argued that despite public skepticism, without fanfare, President 

Obama has made slow but steady progress toward achieving three key elements of 

his effort to end the Forever War: (1) disengaging from Afghanistan; (2) closing 

Guantanamo; and (3) disciplining drones.10 The government witnesses you heard 

from earlier today have clarified how efforts in all three of those arenas continue.11

As outlined in the President’s NDU speech, the administration’s counterterrorism 

strategy treats ‘‘kill and capture’’ as only a small part of a much broader U.S. 

‘‘smart power’’ strategy toward counterterrorism.12 Within that broader strategy, the 

President insists upon maintaining a lawful and workable framework to govern our 

use of force against al-Qaeda and its associated forces, now formalized in Presidential Policy Guidance that President Obama signed last May. ‘‘In the Afghan war 

theater,’’ the President said, ‘‘we must—and will—continue to support our troops 

until the transition is complete at the end of 2014 [by continuing] to take strikes 

against high value al-Qaeda targets, but also against forces that are massing to support attacks on coalition forces.’’ 13 But ‘‘[b]eyond the Afghan theater,’’ the President 

clarified, ‘‘we only target al-Qaeda and its associated forces. And even then, the use 

of drones is heavily constrained’’ by four principles, which are clearly enumerated 

in the important Fact Sheet that accompanied the President’s NDU speech: 14 (1) 

the priority of capture over kill; 15 (2) respect for international law and state sovereignty; 16 (3) the requirement that targets present a ‘‘continuing and imminent 

threat’’ to U.S. persons 17 and (4) a ‘‘near-certainty’’ test for avoiding civilian casualties. At the same time, the President remains committed to maintaining a clear, 

lawful, and workable framework to govern detention of al-Qaeda and its associated 

forces at Guantanamo and elsewhere.18 Finally, the President committed himself to 

transparency and consultation with Congress and our allies,19 and to considering 

future workable proposals to extend oversight of lethal actions outside of active 

warzones.20 Each of these key principles—a smart-power strategy, legal frameworks 

to govern drones and detention, and a commitment to transparency, consultation, 

and oversight—seems to me both correct and worth supporting. 

For our country, peace is the norm and war is the exception. Condoning a state 

of perpetual war would mark a gross deviation from our constitutional norms. We 

need not, and should not, allow a wartime footing to become a perpetual state of 

affairs. Applying the President’s declared principles steadily over time, we can end 

the war against al-Qaeda and its allies when circumstances on the ground allow, 

and while so doing, continue to meet all our domestic and international law obligations. 

FOREI-43947 with DISTILLER

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II. REPEALING THE AUMF

The President’s speech more than a year ago made clear his intent to work with 

Members of Congress to ‘‘refine and ultimately repeal’’ the 2001 AUMF. He 

expressly stated, ‘‘I will not sign laws designed to expand this mandate further.’’ 21

Nevertheless, some argue that the AUMF must continue, or even be expanded, 

despite the President’s clearly stated position. They claim that repealing the 2001 

AUMF will leave legal ‘‘gaps’’ 22 in both the President’s targeting and detention 

authority that will prevent the Executive from successfully protecting America and 

our allies from known as well as future terrorist threats. 

As a policy matter, any proposal to expand and extend the AUMF’s mandate 

would be both unprecedented and exceedingly unwise. After more than three decades of studying, writing, and teaching the law of U.S. foreign policy, I know of no 

example in our long constitutional history where the Congress—traditionally the 

branch that seeks to end wars—has enacted a law expressly to extend or expand 

a war over the President’s explicit objection.23

As a legal matter, the President’s goal of ‘‘refining, then repealing’’ the AUMF is 

both achievable and sustainable without undermining the security of the American 

people. Substantial legal authorities for both targeting and incapacitation of terrorists were available to the Executive branch before the 2001 AUMF. These authorities have been significantly strengthened since then, and would remain in its 

absence.24 The current legal authorities are sufficient to provide the administration 

with all the authority needed to address threats to the United States. At the proper 

time, the President and Congress can work together to repeal the 2001 AUMF without risking exposing our population to future threats. 

A. Targeting 

As I argued as Legal Adviser and continue to believe, the Executive branch is employing lawful standards for targeting both: (1) Taliban and al-Qaeda combatants 

in Afghanistan, and (2) al-Qaeda, the Taliban, and ‘‘associated forces’’ both inside 

and outside of Afghanistan.25 As the administration has explained, the U.S. Government defines ‘‘associated forces’’ in accordance with international law to include 

those (1) organized armed groups that have entered the fight alongside al-Qaeda; 

and (2) are a co-belligerent with al-Qaeda in the hostilities against the United 

States and its coalition partners.26 While not part of the 2001 AUMF’s wording, the 

term ‘‘associated forces’’ derived from a shared Executive 27 and judicial interpretation of the statute’s text 28 used to clarify the authority of the AUMF in aftermath 

of 9/11, which was later codified in the 2012 NDAA.29 As now construed by all three 

branches of government, the 2001 AUMF authorizes all necessary and appropriate 

force against al-Qaeda, the Taliban, and associated forces under U.S. law. Those 

strikes are lawful under international law because the Obama administration’s 

standards—as expressed in the President’s May 2013 NDU speech and accompanying Presidential Policy Guidance—construe the AUMF to be read consistently 

with international humanitarian law, which our Supreme Court has held governs 

the Non-International Armed Conflict (NIAC) in which the United States is currently engaged against al-Qaeda and associated forces.30

That said, the 2001 AUMF is not needed as a perpetual legal authority. It can 

be repealed at the appropriate time, once al-Qaeda has been effectively defeated. At 

that time, repeal would create no ‘‘legal gap’’ if the United States found an ongoing 

need to strike particular remaining al-Qaeda terrorists and associated forces who 

pose a continuing and imminent threat to the United States. In such cases, future 

strikes against groups that pose a continuing and imminent threat to the United 

States could still be justified under both domestic and international law. 

As a constitutional matter, it has long been settled that ‘‘[a]s Commander in Chief 

and Chief Executive, [the President] may use the Armed Forces to protect the 

Nation and its people.’’ 31 In the Prize Cases, the Supreme Court affirmed the President’s inherent authority to use force in self-defense to protect the Nation against 

invasion or sudden attack, declaring that ‘‘[i]f a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. 

He does not initiate the war, but is bound to accept the challenge without waiting 

for any special legislative authority.’’ 32 Under the principle of self-defense that is 

inherent in the President’s Commander in Chief authority, the President has long 

been understood to have constitutional authority to act reasonably in self-defense 

against any threat.33

Read in light of international law, that constitutional authority would clearly 

include the right to act against ‘‘imminent’’ threats, a term defined in the famous 

Caroline case as applying to situations in which the ‘‘necessity of that self-defence 

is instant, overwhelming, and leaving no choice of means, and no moment for delibFOREI-43947 with DISTILLER

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eration.’’ 34 But under a very narrow set of circumstances, the Caroline requirement 

may also reasonably be read to permit direct strikes as a last resort against groups 

or individuals who pose a continuing and imminent threat 35 by virtue of: (1) engaging in ‘‘a concerted pattern of continuing armed activity’’ 36 directed against the 

U.S.—i.e., demonstrating a willingness to attack the U.S. if given the opportunity; 

(2) past successful attacks; and (3) ‘‘actively planning, threatening, or perpetrating 

[future] armed attacks’’ 37 against America.38 In my judgment, this understanding 

of imminence is consistent with Article 51 of the U.N. Charter, which codifies the 

right of national and collective self-defense.39

President Obama essentially embraced this concept in his 2013 NDU speech when 

he said-regarding the use of force outside the Afghan theater—‘‘America does not 

take strikes to punish individuals; we act against terrorists who pose a continuing 

and imminent threat to the American people, and when there are no other governments capable of effectively addressing the threat.40 If, after the Afghan conflict 

ends, the Executive wishes to continue conducting strikes in Afghanistan against 

local groups or individuals that do not pose a continuing and imminent threat to 

the U.S., the President would need to seek separate legal authority from Congress. 

But as President Obama noted in his NDU speech, the ‘‘future of terrorism’’ is 

‘‘lethal yet less capable al-Qaeda affiliates; threats to diplomatic facilities and businesses abroad; homegrown extremists,’’ 41 a threat that would require a range of 

tools.42 With respect to both continuing and imminent terrorist threats and new 

threats that meet the relevant constitutional and international law tests, these tools 

should give the President sufficient legal authority to conduct the activities necessary to protect the American population. 

I fully understand why Congress might prefer not to leave a matter of such importance to inherent constitutional authority. If so, Congress could both clarify and narrow the scope of the AUMF going forward by codifying a standard authorizing the 

principles stated in the President’s May 2013 Presidential Policy Guidance. Such a 

standard, consistent with the international law arguments outlined above, would 

authorize the President to use force against those groups or individuals who pose 

a continuing and imminent threat to the U.S. by virtue of: (1) having already 

attacked the U.S.; (2) engaging in a concerted pattern of continuing armed activity 

directed against the U.S.; and (3) actively planning, threatening, or perpetrating 

armed attacks against the U.S. Congressional action to codify the authority that the 

President needs to effectively confront post-9/11 threats would update the language 

of the AUMF to reflect the administration’s actual policies, now embodied in executive branch mandates. Such a reading would draw what the President called an important ‘‘distinction between the capacity and reach of a bin Laden and a network 

that is actively planning major terrorist plots against the homeland versus jihadists 

who are engaged in various local power struggles and disputes, often sectarian.’’ 43

If government officials are too loose in who they consider to be forces ‘‘associated 

with’’ al-Qaeda, then we will always have new enemies, and the Forever War will 

continue forever.44 Instead of continuing to rely on the broadly worded 2001 AUMF 

to codify a permanent state of war, it would be far better to narrow the scope of 

targeting authority to match current policy. This would both give Congress greater 

say in authorizing force and bolster the constitutional legitimacy of counterterrorism 

operations by giving the President’s current standards a shared legislative and executive imprimatur.45

B. Detention 

Nor should repealing the AUMF create any ‘‘legal gap’’ in detaining and trying 

future terrorist detainees in either American courts or elsewhere.46 As President 

Obama reiterated in both his 2013 NDU speech and his 2014 State of the Union 

Address,47 his administration is committed to transferring the Parwan detention 

facility to Afghan control, closing Guantanamo, transferring the prisoners held there 

to other countries, trying them in Article III courts in the United States, or trying 

them before military commissions. 

As for Parwan, the United States has already transitioned detention operations 

to Afghan authorities.48 The end of major combat operations in Afghanistan may 

well also lead to renewed legal challenges to the President’s authority to continue 

to detain at least some of the detainees at Guantanamo.49 But as the testimonies 

of Mr. Preston and Ms. McLeod make clear, executive branch lawyers are carefully 

studying this possibility, and assessing the effect it might have on law of war detention under the 2012 NDAA. 

While some have expressed concern over so-called ‘‘unreleasable’’ prisoners still at 

Guantanamo, as the executive branch report submitted last week under the terms 

of the National Defense Authorization Act makes clear, that problem can be managed in a number of ways.50 This ‘‘legacy issue’’ should not become ‘‘the tail wagging 

FOREI-43947 with DISTILLER

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not only the debate over closing Guantanamo, but the debate over repealing/replacing the AUMF.’’ 51 Once Congress and the President come to an agreement on how 

to handle the prisoners currently being held at Guantanamo, repealing the AUMF 

should leave no gap in America’s detention authority.52

In any event, we should not confuse the past with the future. The President has 

repeatedly declared his intent to close Guantanamo and not to bring any new detainees there. Thus, debates over continuing authority to hold those currently in law 

of war detention—a population that the President has expressly declared his intent 

to minimize or eliminate—lend little support to the claim that new legal authority 

is somehow needed to ensure potential future detentions of dangerous terrorist suspects. The administration has now developed an effective scheme for detaining and 

trying defendants in Article III courts, which it recently executed effectively against 

Sulaiman Abu Ghaith, the most senior bin Laden associate to be tried and convicted 

in a civilian court in the United States since 9/11, and the radical cleric Abu Hamza 

al-Masri, who was convicted by a federal court this week on 11 criminal counts.53

Two other Article III defendants, Ahmed Warsame (who pleaded guilty) and Abu 

Anas al Libi (who is currently awaiting trial), were initially detained for a period 

of questioning under AUMF authority, before being given Miranda warnings and 

charged criminally under sealed indictments.54 Under laws passed since 9/11, the 

government should have ample authority, even without the AUMF, to pick up 

future terrorism suspects overseas.55

III. NARROWING THE AUMF

While eventual repeal of the 2001 AUMF remains the best long-term way to 

finally bring an end to the Forever War, the precise timing of that repeal remains 

a decision about which the administration and Congress should agree, based upon 

the facts as they develop. Some, however, have invited Congress to consider proposals broadly to ‘‘update’’ the AUMF to address new threats.56 To the extent that 

those proposals amount to proposals to expand, extend, or perpetuate the war with 

al-Qaeda and its co-belligerents—and to extend it to currently unknown, future terrorist organizations—I believe they are both unwise and unnecessary. In the 

interim, no legislation would be plainly better than new legislation for its own sake. 

Others claim that Congress could prepare the way for eventual repeal of the 

AUMF by refining and narrowing—but not expanding—the scope of the 2001 

AUMF. Their claim is that reform to narrow the AUMF could, first, resolve uncertainties about the continued legality and currency of a counterterrorism framework 

that remains tied to 9/11, an event that transpired 13 years ago; second, bring the 

text of the AUMF more into line with the landscape of post-9/11 threats; and third, 

provide Congress with an opportunity to reassert its role in defining and limiting 

the authorities of the executive branch. While I do not see pre-repeal reform as either wise or necessary, if Congress wishes to consider reforms to refine and narrow 

(and not expand) the AUMF’s broad authorization, it would make the most sense 

to include within the AUMF a sunset clause, which would provide increased opportunities for congressional and Executive dialogue and force debate and voting at 

timed intervals. As Representative Adam Schiff noted when proposing stand-alone 

legislation that would sunset the 2001 AUMF beginning in 2015, concurrent with 

the end of combat operations in Afghanistan, ‘‘When Congress passed the AUMF 

shortly after 9/11, we did not intend to authorize a war without end.’’ 57 Because 

the current war against nonstate actors responsible for 9/11 will not have a conventional end marked by a peace treaty, Congress could amend the 2001 AUMF, without narrowing its substantive scope, by adding a sunset provision—of one year, or 

perhaps timed to coincide with the Afghan drawdown—to ensure that both elected 

branches play a role in deciding whether and when the U.S. will use force against 

al-Qaeda and associated forces going forward. Adding a sunset clause would also 

help to ensure that the statutory framework for our counterterrorism operations is 

regularly updated to reflect the realities of the threats we are facing, and to accurately express the intent and will of the legislative branch.58

To improve public and congressional access to information, Congress could further 

amend the AUMF by codifying more stringent transparency and reporting requirements. Strengthened congressional reporting requirements might require that relevant committees regularly receive information on secret military and covert operations, including requiring that Congress be informed as to which groups are 

covered under the AUMF and in which nations the Department of Defense believes 

Congress has authorized the President to use military force.59

These confidential reporting provisions could be strengthened by adding public 

reporting requirements, which might include requiring the periodic public release of 

nonsensitive information as to where and against whom the President is using miliFOREI-43947 with DISTILLER

46 

tary force under congressional authorization. Such reports are regularly given in the 

context of the War Powers Resolution, and it should not unduly burden the Executive to require that similar information also be given here.60 Nor do I see why the 

President should not be asked to issue a regular public report on the number of 

combatants and civilians killed by the United States use of targeted lethal force 

abroad. Unfortunately, a similar provision was recently stripped out of congressional 

legislation, which would have required President Obama to make public each year 

the number of people killed or injured in targeted killing operations.61 Such transparency would help rebut a wave of drone reports—by Human Rights Watch and 

Amnesty International, and the United Nations Special Rapporteur on Counterterrorism and Human Rights and Extrajudicial Killings—that have challenged whether 

the strict standards stated in the President’s NDU speech have in fact been consistently and rigorously applied.62 These NGO reports do not assess the total number 

or rate of civilian casualties for all U.S. drone strikes.63 Nor do they say that all 

U.S. targeted killings are illegal. They do, however, claim that dozens of civilians 

have been killed, and that the U.S. may be misinterpreting and misapplying existing law by applying broader notions of targetability and imminence than international law permits. These are serious charges that deserve serious responses from 

our government, which is why I argued a year ago, and continue to believe, that 

the administration 

Should make public its full legal explanation for why and when it is consistent with due process of law to target American citizens and residents.... [I]t should clarify its method of counting civilian casualties, 

and what that method is consistent with international humanitarian law 

standards. [And] where factual disputes exist about the threat level against 

which past drone strikes were directed, the administration should release 

the factual record. By so doing, it could explain what gave it cause to believe that particular threats were imminent, what called for the immediate 

exercise of self-defense, and what demonstrated either the express consent 

of the territorial sovereign or the inability and unwillingness of those 

sovereigns to suppress a legitimate threat.64

Finally, exploration and eventual implementation of some form of ex post review 

mechanism for targeting would be beneficial both as a policy and a legal matter.65

The President’s own guidelines already state that targeting policies should be 

reviewed for legality.66 In his NDU speech, the President asked his lawyers to consider a special court or an Executive review board as possible ways to extend oversight of lethal actions outside of the Afghan theater.67 Because European courts are 

showing increased initiative in reviewing European cooperation in targeting operations for compliance with domestic and international law,68 some form of ex post 

judicial review of these actions may prove inevitable in the near future, whether 

American officials favor it or not. 

In sum, while I do not favor legislation for its own sake, until the AUMF is ultimately repealed, Congress need not be a passive rubber-stamp. If Congress wants 

to play a proactive role in resolving legal uncertainties, it could tighten the language 

of the current AUMF to narrow substantive scope and improve accountability. 

Amending the 2001 AUMF to narrow and refine its authority could enhance the 

legitimacy of our counterterrorism operations in ways that would encourage information-sharing and multilateral cooperation going forward. As former FBI Director 

Robert S. Mueller III noted, ‘‘Our enemies live in the seams of our jurisdictions. No 

single agency or nation can find them and fight them alone. If we are to protect 

our citizens, working together is not just the best option, it is the only option.’’ 69

Short-term refinements to the scope of the AUMF in anticipation of its eventual repeal could send a positive signal to the international community of the United 

States commitment to complying with its domestic and international legal obligations and ending the Forever War. 

IV. CONCLUSION

For the foregoing reasons, I believe that ending the war with al-Qaeda and its 

co-belligerents, eventually repealing the AUMF, and narrowing its mandate in the 

meantime are all important and achievable elements of this administration’s 

counterterrorism policy. 

Thank you for your attention. I now look forward to answering any questions the 

committee might have. 

———————— 

End Notes 

FOREI-43947 with DISTILLER

47 

1 I am grateful to Hank Moon and Mara Revkin of the Yale Law School for their help in preparing this testimony. Although I sit on a law school faculty as well as on the boards of several 

organizations, the views expressed here are mine alone, not those of my colleagues or of any 

of the institutions with which I am affiliated. 2 I previously served in the Clinton Administration as Assistant Secretary of State for Democracy, Human Rights and Labor from 1998–2001, and in the Reagan Administration as AttorneyAdviser at the Office of Legal Counsel of the U.S. Department of Justice from 1983–85. 3 Remarks by the President at the National Defense University, White House Office of the 

Press Secretary (May 23, 2013) [hereinafter Obama NDU Speech]. 4See Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub. L. No. 

107–243, 116 Stat. 1498. On August 31, 2010, President Obama declared an end to the combat 

mission in Iraq. See Helene Cooper & Sheryl Gay Stolberg, ‘‘Obama Declares an End to Combat 

Mission in Iraq,’’ N.Y. Times, Aug. 31, 2010. 5On December 1, 2009, President Obama announced his intent to withdraw troops from 

Afghanistan. See The White House Office of the Press Sec’y, Remarks by the President in Address to the Nation on the Way Forward in Afghanistan and Pakistan (December 1, 2009). The 

number of U.S. troops remaining in Afghanistan after the planned drawdown could drop below 

the originally projected figure of 10,000, reflecting ‘‘a belief among White House officials that 

Afghan security forces have evolved into a robust enough force to contain a still-potent Talibanled insurgency.’’ Missy Ryan & Arshad Mohammed, ‘‘U.S. Force in Afghanistan May be Cut to 

Less Than 10,000 Troops,’’ Reuters, Apr. 21, 2014. 6See Authorization for Use of Military Force, Pub. L. No. 107–40, 115 Stat. 224, 224 (2001) 

(codified at 50 U.S.C. 1541 note) [hereinafter 2001 AUMF] (‘‘That the President is authorized 

to use all necessary and appropriate force against those nations, organizations, or persons he 

determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons in order to prevent any future acts 

of international terrorism against the United States by such nations, organizations. or persons.’’). 7Obama NDU Speech, supra note 3. 

8See Harold Hongju Koh, ‘‘How to End the Forever War,’’ Speech at Oxford Union (May 7, 

2013) [Koh Oxford Speech]. 9See Obama NDU Speech, supra note 3 (emphasis added). 

10See Harold Hongju Koh, ‘‘Ending the Forever War: A Progress Report,’’ Just Security (Oct. 

28, 2013, 3:00 PM) [hereinafter Koh Progress Report]. 11See testimonies of Department of Defense General Counsel Stephen Preston and Principal 

Deputy Legal Adviser Mary McLeod before the Senate Foreign Relations Committee on May 21, 

2014. 12See Obama NDU Speech, supra note 3 (‘‘[T]he use of force must be seen as part of a larger 

discussion we need to have about a comprehensive counterterrorism strategy—because for all 

the focus on the use of force, force alone cannot make us safe. We cannot use force everywhere 

that a radical ideology takes root; and in the absence of a strategy that reduces the wellspring 

of extremism, a perpetual war—through drones or Special Forces or troop deployments—will 

prove self-defeating, and alter our country in troubling ways. . . . [T]he next element of our 

strategy involves addressing the underlying grievances and conflicts that feed extremism—from 

North Africa to South Asia.’’). 13 Id. 14See U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities, White House (May 23, 2013) 

[hereinafter Summary of White House PPG] (‘‘Lethal force will be used only to prevent or stop 

attacks against U.S. persons, and even then, only when capture is not feasible and no other reasonable alternatives exist to address the threat effectively. In particular, lethal force will be 

used outside areas of active hostilities only when the following preconditions are met: 

First, there must be a legal basis for using lethal force, whether it is against a 

senior operational leader of a terrorist organization or the forces that organization 

is using or intends to use to conduct terrorist attacks. 

Second, the United States will use lethal force only against a target that poses 

a continuing, imminent threat to U.S. persons. It is simply not the case that all terrorists pose a continuing, imminent threat to U.S. persons; if a terrorist does not 

pose such a threat, the United States will not use lethal force. 

Third, the following criteria must be met before lethal action may be taken: 

1. Near certainty that the terrorist target is present; 

2. Near certainty that noncombatants will not be injured or killed.’’) [The appended footnote further clarifies that ‘‘Noncombatants are individuals who may not 

be made the object of attack under applicable international law. The term ‘noncombatant’ does not include an individual who is part of a belligerent party to an 

armed conflict, an individual who is taking a direct part in hostilities, or an individual who is targetable in the exercise of national self-defense. Males of military 

age may be noncombatants; it is not the case that all military-aged males in the 

vicinity of a target are deemed to be combatants.’’] 

3. An assessment that capture is not feasible at the time of the operation; 

4. An assessment that the relevant governmental authorities in the country where 

action is contemplated cannot or will not effectively address the threat to U.S. persons; and 

5. An assessment that no other reasonable alternatives exist to effectively address 

the threat to U.S. persons. Finally, whenever the United States uses force in foreign 

territories, international legal principles, including respect for sovereignty and the 

law of armed conflict, impose important constraints on the ability of the United 

FOREI-43947 with DISTILLER

48 

States to act unilaterally—and on the way in which the United States can use force. 

The United States respects national sovereignty and international law. 

15 Id. (‘‘America does not take strikes when we have the ability to capture individual terrorists; our preference is always to detain, interrogate, and prosecute. [A]s a matter of policy, the 

preference of the United States is to capture terrorist suspects.’’) 16 Id. (‘‘America cannot take strikes wherever we choose; our actions are bound by consultations with partners, and respect for state sovereignty.’’) 17 Id. (‘‘America does not take strikes to punish individuals; we act against terrorists who pose 

a continuing and imminent threat to the American people, and when there are no other governments capable of effectively addressing the threat.’’) 18 Id. (‘‘Today, I once again call on Congress to lift the restrictions on detainee transfers from 

GTMO.’’) 19 Id. (‘‘I’ve insisted on strong oversight of all lethal action. After I took office, my administration began briefing all strikes outside of Iraq and Afghanistan to the appropriate committees 

of Congress. . . . [I] do not believe it would be constitutional for the government to target and 

kill any U.S. citizen—with a drone, or with a shotgun—without due process, nor should any 

President deploy armed drones over U.S. soil.’’) 20 Id. (‘‘Going forward, I’ve asked my administration to review proposals to extend oversight 

of lethal actions outside of warzones that go beyond our reporting to Congress.’’) 21See Obama NDU Speech, supra note 3. 22See, e.g., Robert Chesney, Jack Goldsmith, Matthew C. Waxman & Benjamin Wittes, ‘‘A 

Statutory Framework for Next-Generation Terrorist Threats,’’ Hoover Inst. at Stanford Univ. 6 

(2013) [hereinafter Hoover Report] (Authors are ‘‘skeptical’’ that the President’s inherent powers 

under Article II combined with ordinary law enforcement tools ‘‘[a]re adequate to address any 

gap that may emerge between what defense of the nation demands and what law enforcement 

and intelligence options can provide in extra-AUMF scenarios.’’). 23See, e.g., Melvin Small, ‘‘Democracy and Diplomacy: The Impact of Domestic Politics in U.S. 

Foreign Policy,’’ 1789–1994, 30 (1996) (a congressional declaration of war without Presidential 

approval ‘‘has never happened . . .’’); Jennifer K. Elsea & Richard F. Grimmett, ‘‘Declarations 

of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications 1’’ (2007) (when Congress has legislated authorizations for the use of force rather than 

formal declarations of war, ‘‘[i]n most cases, the President has requested the authority, but Congress has sometimes given the President less than what he asked for.’’). Theoretically, Congress 

may by a two-thirds majority declare war over the objections of the President, but ‘‘[i]n practice, 

such a situation cannot be imagined.’’ Stephen Vladeck, ‘‘Why a Drone Court Won’t Work—But 

(Nominal) Damages Might,’’ Lawfare (Feb. 10, 2013, 5:12 PM) [Vladeck Drone Court]. 24These include various statutory authorities and other agencies to make arrests, which are 

not territorially limited (e.g., 18 U.S.C. 3052), as well as extraterritorial expansions in civilian 

criminal statutes especially 18 U.S.C. 2339B. For a review of the various legal changes that 

have led to a dramatic increase in counterterrorism capacities since 2001, see generally Jennifer 

C. Daskal & Stephen I. Vladeck, ‘‘After the AUMF,’’ Harv. Natl. Secur. J. 115, 132–37 (2014) 

[hereinafter Daskal & Vladeck, After the AUMF]. 25See Harold Hongju Koh, Legal Adviser, U.S. Dept. of State, ‘‘The Obama Administration 

and International Law,’’ Address to the American Society of International Law (Mar. 25, 2010) 

[hereinafter Koh Speech] (noting that all operations by the U.S. Government must comply with 

international humanitarian law). 26See, e.g., Jeh Charles Johnson, General Counsel, U.S. Dep’t of Def., ‘‘The Conflict Against 

Al Qaeda and its Affiliates: How Will It End?’’ Speech Before the Oxford Union (Nov. 30, 2012) 

[hereinafter Johnson Oxford Speech]. 27The term ‘‘associated forces’’ first appeared in a Department of Justice habeas brief filed 

during the early days of the Obama administration, on March 13, 2009, which argued that the 

President has authority to detain those who ‘‘substantially support’’ Al Qaeda or the Taliban 

and ‘‘associated forces.’’ Marty Lederman & Steve Vladeck, ‘‘The NDAA: The Good, the Bad, and 

the Laws of War—Part II,’’ Lawfare Blog (Dec. 31, 2011, 4:48 PM). The then-new Obama administration offered this narrowed executive interpretation of the AUMF in response to calls from 

many, including myself, to clarify and narrow the Executive’s tendency to ‘‘construe the vaguely 

worded Authorization for Use of Military Force (AUMF) Resolution to override existing legislation . . .’’ See Statement of Harold Hongju Koh Before the Senate Judiciary Committee, Subcommittee on The Constitution on Restoring the Rule of Law, Sept. 16, 2008. 28 In Hamlily v. Obama, 616 F. Supp. 2d 63, 78 (D.D.C. 2009), Judge Bates of the U.S. District 

Court for the District of Columbia accepted the Obama administration’s interpretation of the 

AUMF, holding that ‘‘[t]he President also has the authority to detain persons who are or were 

part of Taliban or al-Qaeda forces or associated forces that are engaged in hostilities against 

the United States.’’ The D.C. Circuit has since adopted this language on multiple occasions. See, 

e.g., Al-Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir. 2010); Barhoumi v. Obama, 609 F.3d 

416, 432 (D.C. Cir. 2010). 29See FY 2012 NDAA § 1021(b)(2), 125 Stat. at 1562 [hereinafter 2012 NDAA] (authorizing 

detention of ‘‘[a] person who was a part of or substantially supported al-Qaeda, the Taliban, or 

associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such 

hostilities in aid of such enemy forces’’). See also Hussain v. Obama, 718 F.3d 964, 967 (D.C. 

Cir. 2013) (citing the 2012 NDAA to hold that the AUMF authorizes the President to detain 

individuals who are part of Al Qaeda, the Taliban, or ‘‘associated forces’’). I should caution that 

no court has yet considered whether precisely the same legal standards for membership in or 

co-belligerency with al-Qaeda should apply to determine whether an individual is targetable, as 

opposed to detainable. To trigger a legal right of self-defense sufficient to target an individual, 

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the United States might well be required to demonstrate that the individual has played a senior 

operational role capable of generating a continuing and imminent threat to the United States. 30See generally Koh Speech, supra note 25 (discussing relevant international law standards). 

In Hamdan v. Rumsfeld, 548 U.S. 557 (2006), the Supreme Court held that the U.S. was 

engaged in a NIAC with al-Qaeda, and was therefore bound by Common Article 3, a provision 

appearing in all four Geneva Conventions, ‘‘which provides that, in a conflict not of an international character occurring in the territory of one of the High Contracting Parties [i.e., signatories], each Party to the conflict shall be bound to apply, as a minimum, certain provisions protecting [p]ersons . . . placed hors de combat by . . . detention, including a prohibition on the 

passing of sentences . . . without previous judgment . . . by a regularly constituted court 

affording all the judicial guarantees . . . recognized as indispensable by civilized peoples.’’ Id. 

at 562 (quotations omitted). 31See United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). 32See The Prize Cases, 67 U.S. (2 Black) 635, 668 (1863). 33See Daskal & Vladeck, ‘‘After the AUMF,’’ supra note 24 (‘‘[I]t is well settled that the President has inherent authority under Article II of the U.S. Constitution and Article 51 of the U.N. 

Charter to take immediate—and, where necessary, lethal—action in defense of the nation,’’ 

while noting that the authority to engage in self-defense under Article II is not unlimited). 34Department of State, Letter from Mr. Webster to Lord Ashburton, Washington, Aug. 6, 

1842. 35See Daniel Bethlehem, ‘‘Self-Defense Against an Imminent or Actual Armed Attack by 

Nonstate Actors,’’ 106 Am. J. Int’l L. 769 (2012) [hereinafter Bethlehem Self-Defense Principles]. 36 As former Legal Adviser to the Foreign and Commonwealth Office of the United Kingdom, 

Sir Daniel Bethlehem, explained: ‘‘While ‘imminence’ continues to be a key element of the law 

relevant to anticipatory self-defense in response to a threat of attack, the concept needs to be 

further refined and developed to take into account the new circumstances and threats from nonstate actors that states face today.’’ Id. at 5. 37 Id. at 6 (‘‘Armed action in self-defense may be directed against those actively planning, 

threatening, or perpetrating armed attacks. It may also be directed against those in respect of 

whom there is a strong, reasonable, and objective basis for concluding that they are taking a 

direct part in those attacks through the provision of material support essential to the attacks.’’). 38 As one commentator recently put it, ‘‘There is . . . support for the argument that a state 

facing an impending devastating attack cannot be expected to have to wait for it to actually 

strike its cities before engaging in forcible self-defence.’’ See Noam Lubell, ‘‘The Problem of 

Imminence in an Uncertain World 5’’ (M. Weller, ed., ‘‘The Oxford Handbook of the Use of Force 

in International Law,’’ forthcoming 2014) (‘‘There does appear to be a growing number of views 

that support preemptive action when limited to imminent attacks,’’ particularly against those 

terrorist networks that have previously attacked a country successfully.’’). 39 U.N. Charter art. 51 (‘‘Nothing in the present Charter shall impair the inherent right of 

individual or collective self-defence if an armed attack occurs against a Member of the United 

Nations, until the Security Council has taken measures necessary to maintain international 

peace and security.’’). By so saying, let me make clear that I am not supporting the considerably 

broader notion of ‘‘preemptive self-defense’’ favored by some international lawyers, which I have 

long rejected. See, e.g., Harold Hongju Koh, ‘‘On American Exceptionalism,’’ 55 Stanford L. Rev. 

1479, 1516 (‘‘Preemptive self-defense arguments cannot clearly distinguish between permitted 

defensive measures and forbidden assaults’’); Harold Hongju Koh, Comment to Michael W. 

Doyle, ‘‘Striking First: Preemption and Prevention in International Conflict 99’’ (2011) (S. 

Macedo, ed.). 40See Obama NDU Speech, supra note 3. In 2012, CIA Director John Brennan, then-Assistant 

to the President for Homeland Security and Counterterrorism, similarly stated: ‘‘[T]he use of 

force against members of al-Qaeda is authorized under both international and U.S. law, including both the inherent right of national self-defense and the 2001 Authorization for Use of Military Force.’’ John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism, Speech at the Woodrow Wilson International Center for Scholars (Apr. 30, 2012). 41 Id. 42See supra note 24. 43See David Remnick, ‘‘Going the Distance: On and Off the Road with Barack Obama,’’ The 

New Yorker, Jan. 27, 2014 (‘‘ ‘The analogy we use around here sometimes, and I think is accurate, is if a jayvee team puts on Lakers uniforms that doesn’t make them Kobe Bryant,’ Obama 

said.’’). 44 In recent War Powers Reports to Congress, for example, the administration has correctly 

taken pains to specify that ‘‘[t]he U.S. military has taken direct action in Somalia against members of al-Qaeda, including those who are also members of al-Shabaab, who are engaged in 

efforts to carry out terrorist attacks against the United States and our interests.’’ Letter from 

President Barack Obama to Speaker of the House, Presidential Letter—2012 War Powers Resolution 6-Month Report (Jun. 15, 2012) [hereinafter 2012 War Powers Resolution 6-Month 

Report], (‘‘the U.S. military has worked to counter the terrorist threat posed by al-Qaeda and 

al-Qaeda-associated elements of al-Shabaab’’) (emphasis added). By so saying, the administration has made clear that it has acted against particular individuals because they themselves 

are part of or co-belligerents with al-Qaeda, not because we are at war with all of al-Shabaab. 45 Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 at 635–36 (Jackson, J., concurring) 

(‘‘When the President acts pursuant to an express or implied authorization of Congress, his 

authority is at its maximum, for it includes all that he possesses in his own right plus all that 

Congress can delegate.’’). 46See generally Daskal & Vladeck, After the AUMF, supra note 24. 47 Barack H. Obama, President of the United States, Remarks by the President in State of 

the Union Address (Jan. 28, 2014), (‘‘with the Afghan war ending, this needs to be the year Congress lifts the remaining restrictions on detainee transfers and we close the prison at GuantaFOREI-43947 with DISTILLER

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namo Bay—because we counter terrorism not just through intelligence and military action, but 

by remaining true to our constitutional ideals, and setting an example for the rest of the 

world.’’). 48The March 9, 2012, Memorandum of Understanding (MOU) between Afghanistan and the 

United States transferred authority for Parwan detainees to Afghan control after a ‘‘Transition 

period, which [was] not to last more than 6 months.’’ Memorandum of Understanding between 

the Islamic Republic of Afghanistan and the United States of America on Transfer of U.S. 

Detention Facilities in Afghan Territory to Afghanistan (Mar. 9, 2012). 49See generally Marty Lederman,‘‘ Justice Breyer’s Intriguing Suggestions In Hussain: A Sign 

of Habeas Challenges to Come?’’, Just Security (Apr. 23, 2014, 10:30 AM), (‘‘[W]hen such active 

combat operations in Afghanistan do cease in the near future, and/or if and when the U.S. concludes that al-Qaeda’s capabilities have been sufficiently degraded so that it is no longer a continuing threat to strike the U.S., attorneys for the GTMO detainees will begin to more strenuously press the argument that the continued detention of Taliban and al-Qaeda forces is no 

longer necessary and appropriate, on the theory that there will be no ‘battle’ to which the 

detainees might return’’); Johnson Oxford Speech, supra note 26 (after al-Qaeda’s defeat, ‘‘[w]e 

will also need to face the question of what to do with any members of al-Qaeda who still remain 

in U.S. military detention without a criminal conviction and sentence. In general, the military’s 

authority to detain ends with the ‘‘cessation of active hostilities.’’). 50See Charlie Savage, ‘‘U.S. Report Addresses Concern Over Obama’s Plan to Close Guantanamo,’’ N.Y. Times, May 16, 2014, at A17. For the full text of the report, see U.S. Dep’t of Justice, Report Pursuant to Section 1039 of the National Defense Authorization Act for Fiscal Year 

2014 (May 14, 2014). 51Stephen I. Vladeck, ‘‘Detention After the AUMF,’’ 82 Fordham L. Rev. 2189 (2014). 52One recent proposal worth exploring may be ‘‘[a] compromise solution wherein the government transfers or otherwise releases all of the detainees who have been cleared for transfer, 

moves all of the other detainees into the United States, and accepts a repeal of the AUMF in 

favor of a more specific authorization for long-term civil detention of those detainees who are 

too dangerous to be released, and yet who cannot be subjected to trial in civilian or military 

court.’’ Stephen Vladeck, ‘‘Detention After the AUMF,’’ Just Security (Apr. 4, 2014, 1:39 PM). 

See also Benjamin Weiser, ‘‘Jurors Convict Abu Ghaith, Bin Laden Son-in-Law, in Terror Case,’’ 

N.Y Times, Mar. 26, 2014. In light of reports that Yemen is making progress toward building 

a secure rehabilitation center to hold Guantanamo returnees, the increasing feasibility of transfers to Yemen and other third countries will reduce the number of detainees who would need 

to be held in long-term civil detention. See ‘‘Yemen Takes Step to Set Up Secure Rehab for 

Guantanamo Detainees,’’ Reuters, May 14, 2014. 53 Abu Ghaith was convicted on three counts for which he could face life in prison. See Benjamin Weiser, ‘‘Jurors Convict Abu Ghaith, Bin Laden Son-in-Law, in Terror Case,’’ N.Y Times, 

Mar. 26, 2014; Karen McVeigh, ‘‘Abu Hamza Found Guilty of Terrorism Charges at New York 

Trial,’’ The Guardian, May 19, 2014. (Statement of U.S. Attorney Preet Bharara) (‘‘As we have 

seen in the Manhattan federal courthouse in trial after trial . . . these trials have been difficult, 

but they have been fair and open and prompt.’’). 54 After interrogation and charging, Warsame pleaded guilty in the Southern District of New 

York in 2011 and is awaiting sentencing. See Press Release, Federal Bureau of Investigations, 

Guilty Plea Unsealed in New York Involving Ahmed Warsame, a Senior Terrorist Leader and 

Liaison Between al-Shabaab and Al Qaeda in the Arabian Peninsula, for Providing Material 

Support to Both Terrorist Organizations (Mar. 25, 2013). See generally Charlie Savage, ‘‘U.S. 

Tests New Approach to Terrorism Cases on Somali Suspect,’’ N.Y. Times (Jul. 6, 2011). Abu 

Anas al Libi has pleaded not guilty to all charges, and currently awaits trial in the Southern 

District of New York. See Deborah Feyerick & Lateef Mungin, ‘‘Alleged Al Qaeda Operative Abu 

Anal Al Libi Pleads Not Guilty,’’ CNN (Oct. 15, 2013, 8:07 PM). See generally Koh Progress 

Report, supra note 10. 55These include the various statutory authorities enumerated in supra note 24. If Congress 

wished specifically to preserve the possibility of the kind of pre-presentment detention (used in 

the Warsame and Al-Libi cases) for the purpose of questioning surviving members of al-Qaeda 

or its co-belligerents about possible future attacks, it could narrow the AUMF’s detention authority to cover just this narrow circumstance. Congress could also codify the preferences for 

counterterrorism operations already explicit in the Presidential Policy Guidance: (1) Capture 

over targeted killing; (2) Law enforcement over military action; and (3) Local government action 

in countries whose governments are able and willing. Summary of White House PPG, supra note 

14. (‘‘The policy of the United States is not to use lethal force when it is feasible to capture 

a terrorist suspect, because capturing a terrorist offers the best opportunity to gather meaningful intelligence and to mitigate and disrupt terrorist plots. Capture operations are conducted 

only against suspects who may lawfully be captured or otherwise taken into custody by the 

United States and only when the operation can be conducted in accordance with all applicable 

law and consistent with our obligations to other sovereign states.’’). 56 Compare Hoover Report, supra note 22, with Jennifer Daskal & Stephen Vladeck, ‘‘After 

the AUMF, II: Daskal and Vladeck Reply,’’ Lawfare (Mar. 18 2013, 7:16 PM), (noting that the 

Hoover proposal would entail ‘‘a much more expansive use-of-force regime than that which currently exists.’’). 57See Press Release: Rep. Adam Schiff to Introduce Legislation to Sunset Authorization for 

Use of Military Force (June. 10, 2013). See also H.R. 2324 Sunset to the Authorization for Use 

of Military Force Act (2013). In three different years, Rep. Barbara Lee (D-Calif.) and 33 cosponsors have also introduced a bill that would repeal the AUMF 180 days after passage. See H.R. 

198, Repeal of the Authorization for Use of Military Force (2013), H.R.198 Bill Summary & Status, 113th Congress (2013–2014). 58The Patriot Act provides one model for sunset provisions, and illustrates how sunset clauses 

can force congressional debate at the time of reauthorization. See Uniting and Strengthening 

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America by Providing Appropriate Tools Required To Intercept and Obstruct Terrorism (USA 

PATRIOT) Act of 2001, Pub. L. No. 107–56, 115 Stat. 272. 59Such a provision would simply require as a matter of law what the President is already 

providing as a matter of policy. See Obama NDU Speech, supra note 3 (‘‘After I took office, my 

administration began briefing all strikes outside of Iraq and Afghanistan to the appropriate 

committees of Congress. Let me repeat that: Not only did Congress authorize the use of force, 

it is briefed on every strike that America takes. Every strike. That includes the one instance 

when we targeted an American citizen—Anwar Awlaki, the chief of external operations for 

AQAP. This week, I authorized the declassification of this action, and the deaths of three other 

Americans in drone strikes, to facilitate transparency and debate on this issue and to dismiss 

some of the more outlandish claims that have been made.’’). 60For examples of recent war powers reports that include drone strikes, see 2012 War Powers 

Resolution 6-Month Report, supra note 44. 61See Mark Mazzetti, ‘‘Senate Drops Bid to Report on Drone Use,’’ N.Y. Times, April 28, 2014. 62See Human Rights Watch, ‘‘Between a Drone and Al-Qaeda: The Civilian Cost of U.S. Targeted Killings in Yemen’’ (2013); Amnesty International, ‘‘Will I Be Next?: U.S. Drone Strikes 

in Pakistan’’ (2013); Philip Alston, ‘‘IHL, Transparency, and the Heyns’ U.N. Drones Report,’’ 

Just Security (Oct. 23, 2013, 4:15 PM). 63See Sarah Knuckey, ‘‘Human Rights Groups Release Investigation Reports into U.S. Targeted Killings: A Guide to the Issues,’’ Just Security (Oct. 22, 2013, 12:02 AM). 64See Koh Oxford Speech, supra note 8. 65One commentator has noted that proposals for a ‘‘drone court’’ modeled after the Foreign 

Intelligence Surveillance Court (FISC) face ‘‘formidable legal and policy obstacles,’’ but urges as 

a first step toward creating a meaningful regime of judicial supervision ‘‘the codification of a 

statutory cause of action for nominal damages . . . for those unlawfully injured by [drones] 

. . .’’. Vladeck Drone Court, supra note 23. 66See Summary of White House PPG, supra note 14 (‘‘Senior national security officials . . . 

and attorneys . . . including the senior lawyers of key departments and agencies—will review 

and determine the legality of proposals.’’). 67See Obama NDU Speech, supra note 3 (‘‘The establishment of a special court to evaluate 

and authorize lethal action has the benefit of bringing a third branch of government into the 

process, but raises serious constitutional issues about Presidential and judicial authority. Another idea that’s been suggested—the establishment of an independent oversight board in the 

executive branch—avoids those problems, but may introduce a layer of bureaucracy into 

national security decisionmaking, without inspiring additional public confidence in the process. 

But despite these challenges, I look forward to actively engaging Congress to explore these and 

other options for increased oversight.’’). 68 British officials were recently the subject of a domestic civil lawsuit for allegedly sharing 

intelligence used to conduct a drone strike outside the Afghan theater. See Noor Khan v. Secretary of State for Foreign and Commonwealth Affairs (2014). The German federal courts are 

currently considering whether the death of a German citizen in an alleged U.S. drone strike was 

conducted with the help of mobile phone data provided by the German Government. See Louise 

Osborne, ‘‘Germany Denies Phone Data Sent to NSA Used in Drone Attacks,’’ The Guardian, 

Aug. 12, 2013. See also Frederik Rosen, ‘‘Extremely Stealthy and Incredibly Close: Drones, Control and Legal Responsibility,’’ J. Confl. Secur. Law 24 (2013) (‘‘The rapidly growing surveillance 

capacity of drone technology combined with ever more sophisticated armed capabilities may suggest a capability for exercising a degree of control and authority over territories and persons 

that may trigger the extraterritorial application of the European Convention of Human 

Rights.’’). 69See Robert S. Mueller III, ‘‘Defeating Terrorism Through Partnerships, Fed. Bur. of Inves.’’ 

(2008). 

The CHAIRMAN. General Mukasey. 

STATEMENT OF HON. MICHAEL B. MUKASEY, PARTNER, 

DEBEVOISE & PLIMPTON, FORMER ATTORNEY GENERAL OF 

THE UNITED STATES, NEW YORK, NY 

Mr. MUKASEY. Mr. Chairman, first of all, thank you for holding 

this hearing, thank you for hearing me and having me here as part 

of the process. 

I did submit a brief statement. I do not want to duplicate what 

is in it, because this hearing has developed certain questions that 

I think are on your mind, on the minds of the rest of the members, 

and that I probably ought to address those rather than simply go 

off on my own oration. 

With respect to the questions that you posed to the other witnesses at the beginning: Is the AUMF—I think words you used 

were ‘‘broken, obsolete, inadequate’’? I am not sure what broken 

means in this context, but obsolete and inadequate, for sure. I 

think that the nature of the threat that we face now is essentially 

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the same as the nature of the threat we faced on and before 9/11, 

even though we may not have been fully aware of it before 9/11, 

and that is that there are people who are committed, as a matter 

of religious belief, so they say, to destroy Western civilization, and 

we are the principal focus of their energies and their activities, 

although we are not the only focus. We could declare, tomorrow, 

that the war was over, we could repeal the AUMF, we could repeal 

every enabling piece of legislation that we have, and that would not 

change their agenda. They get a vote in this. And I think that it 

is unrealistic for us to talk about simply taking a statute off the 

books, as if that, in fact, would change facts on the ground. 

I do think, however, that the AUMF can, and should, be changed. 

In what ways? It names—it does name particular entities; it names 

al-Qaeda, it names the Taliban, it talks about associated groups 

and groups that are working in concert with them. What that has 

necessitated, as you saw, to some extent, with the testimony of the 

prior witnesses, is some degree of somersaults to find out whether 

this organization or that organization is or is not associated, is or 

is not supporting al-Qaeda as it has been identified? I think, rather 

than doing that, you could come up with a list of organizations, 

come up with a set of goals that those organizations pursue in common, and then, in very much the same way that the State Department puts groups on the lists of foreign terrorist organizations, 

have a consultative process involving the State Department, the 

Defense Department, the Justice Department, and Homeland Security to include entities that, whether they are directly associated, 

or not, are pursuing the same goal that we know generated the 

attacks of 9/11 and attacks before that, that Congress would then 

maintain an ongoing involvement with that process and could 

examine the legitimacy of having groups on that list, or not, and 

could examine what steps had to be taken. 

Detention authority is not even mentioned in the AUMF and, as 

I understand it, is simply a derivative authority from the existence 

of a war. I think we ought to provide for detention authority in a 

straightforward way, determining who, how, and under what 

circumstances. 

And I am happy to answer your questions. 

[The prepared statement of Mr. Mukasey follows:] 

PREPARED STATEMENT OF MICHAEL B. MUKASEV

First, I would like to thank the committee, through its chairman and its ranking 

member, for addressing an issue vital to the security of this country—namely, 

whether the Authorization for the Use of Military Force (AUMF), passed in the days 

following the attacks of September 11, 2001, still provides all the authority necessary to protect us. And thank you as well for the privilege of testifying on this 

subject. 

The AUMF, as you will recall, authorized the President to ‘‘use all necessary and 

appropriate force against those nations, organizations, or persons he determines 

planned, authorized, committed or aided the tenorist attacks that occurred on September 11, 2001, or harbored such organizations or persons. . . .’’ Upon passage of 

the AUMF, all three branches of government understood that language to authorize 

force against al-Qaeda—the organization that planned and carried out those 

attacks, and the Taliban, the organization that once controlled Afghanistan and harbored al-Qaeda. The power to detain prisoners is not specified anywhere in the 

AUMF; it has been read into the statute as an implied power of the sort incident 

to a war. 

Events since September 11, 2001, including successes of two administrations in 

combating both al-Qaeda and the Taliban, have made the AUMF not only obsolete, 

FOREI-43947 with DISTILLER

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but dangerously so; future events—including the current administration’s decision 

to cease the war in Afghanistan by mid-December 2014—threaten to make it even 

more irrelevant. 

What has been referred to colloquially as core al-Qaeda has been diminished, and 

the Taliban no longer formally control Afghanistan. However, other groups loosely 

related to al-Qaeda, or having the same goals, have sprung up across a broad arc 

of countries stretching from Asia to Africa, and perhaps in Latin America as well. 

Some call themselves al-Qaeda—for example, Al Qaeda in the Arabian Peninsula 

and Al Qaeda in the Islamic Maghreb; others do not—for example, Ansar al-Sharia 

in Libya and the al-Nusra Front in Syria. Their effects have been seen in conduct 

as diverse as the attack that killed our Ambassador and three others in Benghazi, 

in plots to set off bombs in New York’s subways and in Times Square. They are 

inspired by a common ideology that claims to find authority in the Quran. That 

claim is one that will have to be resolved by Muslims, but Western civilization in 

general, and the United States in particular, is the focus of that ideology and it is 

not going away any time soon. Simply saying that there is no war will not fend off 

the violence generated by that ideology any more than the absence of a state of war 

before September 2001 prevented the attacks of 9/11. 

In spite of the actual or potential lethality of these groups, it becomes increasingly 

difficult to identify them with any certainty as ‘‘affiliates’’ or ‘‘supporters’’ of 

al-Qaeda, and we find ourselves going through increasingly fanciful contortions in 

order to fit them within the definitions in the AUMF so as to permit action to be 

taken against them. 

There are some who have suggested that we can rely on the authority inherent 

in Article II’s grant of ‘‘the executive power’’—all of it, to the President, to authorize 

any response to these people and groups. Even if that authority is sufficient to permit a President to act in an emergency, I think there is no way it can be sufficient 

politically to permit long-term action. I believe that a basis in legislation is necessary to confer that kind of political authority. 

Although it might be possible to define the conduct of these groups in a comprehensive yet precise enough way to permit the President to act, there are bound to 

be close decisions to be made, and I do not think it is politically wise or even possible simply to delegate to the President the authority to determine who does and 

who does not fit the statutory definition. 

As others have, I urge the committee to consider and send to Congress legislation 

that would designate some groups that we know about, and create a mechanism for 

designating others, perhaps in the way that the Secretary of State now designates 

groups as Foreign Terrorist Organizations, through a group drawn from the Departments of State, Defense, Justice, and Homeland Security. I am certainly no fan of 

sunset provisions, and I do not believe that there is any sunset provision in any 

authority that inspires our enemies. However, I recognize that it may be politically 

difficult to authorize an open ended use of force, particularly when the people and 

groups against whom it is used may expand with time. Accordingly I recommend 

that a rational but limited deadline be established—perhaps 10 years—beyond 

which the authority would expire unless extended. 

You may also wish to address related issues, including criteria for targeting drone 

strikes against U.S. citizens abroad away from the battlefield and a requirement 

that at least the number of such strikes and the estimated number of victims, both 

intentional and collateral, be reported. 

These suggestions subsume many issues and invite many questions, and I would 

be happy to explore those issues and attempt to answer some of those questions in 

my oral testimony. Again, I am grateful to the committee for allowing me to participate in its important work. 

The CHAIRMAN. Well, thank you. 

Thank you both very much. 

Let me go to—ask you both of—one of the first questions I asked 

the previous panel. What does the 9/11 AUMF provide the President, in terms of authorities to use force, that he does not already 

possess in other authorities? 

Mr. KOH. So, Senator, I think a point that did not clearly emerge 

is, there are two states of affairs. One is armed conflict. When we 

are in an armed conflict with an organized group that is of a certain intensity and duration, as a matter of law, it is easier to conduct that ongoing struggle until you reach a point where they are 

FOREI-43947 with DISTILLER

54 

defeated. And certainly, on September 19, 2001, we were in that 

state of affairs. You had al-Qaeda, the Taliban, and associated 

forces. That went on, and many major actions were taken as part 

of an armed conflict. 

At a certain point—and this is what Jay Johnson called the ‘‘tipping point’’—you could say that that group has, essentially, been 

defeated. They may not surrender, but, at that point, they are less 

of an organized group than they are a set of threats. And when you 

have that set of threats and you consider them a continuing imminent threat, you can get rid of the belt and go with the suspenders, 

which is the authority to respond to those continuing imminent 

threats in self-defense against known attackers. 

And the question is, When do you do that? You have to do it 

when the situation on the ground permits. So, you were giving the 

example of Iraq. It may well be that now, several years after all 

troops are withdrawn, is a good time to withdraw the AUMF 

authority; where it might not have been, in the last days of the 

drawdown, when there were still American soldiers there. 

So, that is the key; we have a belt-and-suspenders system, but 

the armed-conflict scenario works best when you are in an ongoing 

armed conflict with an organized, armed group and you need to be 

using targeting and detention on a very regular basis. That does 

not fit well into the sporadic threat scenario. 

The CHAIRMAN. But, my question still prevails, in trying to get 

a greater clarity of answer. Could the President have—conduct and 

continue to conduct all activities that he has—being conducted, 

absent an AUMF of 9/11? 

Mr. KOH. Well, I do not—I am no longer part of the information 

flow on the threat stream. My view is that some parts of al-Qaeda 

have been pretty much subdued, other parts are still very active— 

AQAP, AQIM. And then there are other entities which are dangerous, but they are not going to attack the homeland and they are 

not part of al-Qaeda and they do not fall under the AUMF. However, they do present continuing and imminent threats. For example, the Benghazi attackers. So, you have the legal authority to 

respond to them, even without an AUMF. 

The CHAIRMAN. General Mukasey, do you have a view? 

Mr. MUKASEY. I think part of it was responded to before—the 

AUMF does override the War Powers Act. And so, any action taken 

would not have to be reported under the War Powers Act. In addition, it provides a coordinating mechanism for responses. Yes, there 

is Article 2 authority for the President to respond to imminent 

threats. But, evaluating imminence, as was pointed out before, can 

be an elusive process, particularly when obviously we are not privy 

to the plans of terrorists. They do not tell us precisely when they 

are going to act, they do not tell us, necessarily, even what, precisely, they are planning. But, once they are identified as a terrorist organization, it is, I think, rational, at least, to consider 

members of those organizations, and the organizations themselves, 

to constitute imminent threats, unless there is good evidence to the 

contrary. 

The CHAIRMAN. The previous panel suggested, I think, by their 

testimony, that, absent the AUMF, Article 2 provisions would give 

the President all the authorities that he needed to continue to conFOREI-43947 with DISTILLER

55 

duct those operations. Almost seemed like it was superfluous to 

have an AUMF. Is that a view that you share? And if not, what 

is the difference, in your view? 

Mr. KOH. So, Senator, a little history of the kind that Senator 

Durbin recalled, I think is helpful. On September 11, the Nation 

was shocked, people wanted the President to respond with all 

available tools. He could invoke his Article 2 authority, but Congress gave him a very broad statutory authority, as well. But, it 

was supposed to be against those people who were responsible for 

September 11 and to prevent a future September 11. 

In the last administration, these two rationales were merged. 

Constitutional authority was invoked all the time, the AUMF was 

used in a very broad way. There was a lot of objection to that. At 

the beginning of this administration—at this point, we were in the 

middle of habeas litigation, et cetera—the Justice Department 

offered a narrowing interpretation of the AUMF, and the Obama 

administration shifted to the AUMF as the main basis for its 

activities. It rejected the notion that there was a Global War on 

Terror, but said that there was a war against al-Qaeda, the 

Taliban, and associated forces that was not limited to just one 

country, but it was not limited—it was not the whole world, either. 

And the net result of that is, there has been more of a convergence 

on the legal rationales. 

A year ago, the President, at the NDU, not only gave a speech 

setting forth the standards, but signed Presidential policy guidance 

specifying those standards. So, I think we are now operating in a 

world in which the President’s power is, by his own statement, 

much more constrained. And he stated that his long-term goal is 

to bring the war to an end. 

The CHAIRMAN. So, based upon your answer, if the AUMF was 

repealed and the President, as you described, relying upon that 

AUMF for action, would either have to cease such activities or he 

would then have to turn to his—to make his Article 2 claims. 

Mr. KOH. Well, let me just make a hypothetical situation. If the 

President thought he needed to make 100 more strikes against 

al-Qaeda to defeat them, it would be very unwise to eliminate the 

AUMF. If he thought that the core of al-Qaeda has been defeated, 

that al-Qaeda—those remnants might occasionally strike, that 

would be a moment in which it would be safe to move for repeal 

of AUMF authority and rely on self-defense authorities, going 

forward. In other words, the self-defense arguments are not allpurpose alternatives. 

Finally, if Congress wanted to codify the self-defense authorities 

in a more limited way, that would be a narrowing of the AUMF. 

And, to my mind, that would be more appropriate for a situation 

in which there were fewer need to attack or detain al-Qaeda, the 

Taliban, or associated forces. 

The CHAIRMAN. What would happen to the government’s legal 

authority to continue to detain prisoners at Guantanamo if, hypothetically, the 2001 AUMF were repealed? 

Mr. KOH. Well, again, Senator, it would depend on how many 

people were there. If there are 150 people or so, if those who are 

in Yemen have been moved to Yemen pursuant to negotiations that 

are apparently going on, if those who are Taliban had moved off, 

FOREI-43947 with DISTILLER

56 

if you are talking about a small group of people, some of those individuals might be still detainable under criminal detention authorities, some of them might be detainable under immigration detention authorities, some of them might have to be dealt with by new 

legislation considered by you. But, that would be, at that point, a 

very small number of people, say 30 people as opposed to 150 

people. 

The CHAIRMAN. Regardless of the size, what is the legal authority if the AUMF is repealed? What is the legal authority to detain 

people at Guantanamo? 

Mr. KOH. Well, we just have to remember, Senator, that the 

AUMF is belligerent combatant authority, authority to use necessary and appropriate force against belligerent combatants. Individuals may not be detainable as belligerent combatants, but they 

may be criminals, they may have committed immigration violations, they may be subject to other forms of civilian detention. And 

you have to evaluate that on an individualized basis. 

The CHAIRMAN. But, civilian detention in a place like Guantanamo? 

Mr. KOH. My understanding is that the goal would be to move 

people off of Guantanamo. But, this is, to me, akin to the question—if you are trying to bail out a boat, you worry about the last 

4 inches of water when you get there. I think the main challenge 

now is to bring the numbers in Guantanamo down by moving off 

people who can be transferred, by moving off people—— 

The CHAIRMAN. I would disagree—— 

Mr. KOH [continuing]. Through negotiations—— 

The CHAIRMAN [continuing]. Insofar as that there is a broader essence of policy of what is the legal authority to maintain people in 

a place like Guantanamo, whether 150 are there and tomorrow 

there will be a different Guantanamo. And that is what I was trying to—— 

Mr. KOH. So, Senator Menendez, the Justice Department, last 

week, issued a report, in response to a congressional mandate, 

which described the legal authorities that would be used if individuals were brought from Guantanamo to the United States. And I 

think they would be anticipating a relatively small number at the 

point in which that would be exercised. They argued there are various legal authorities. I think you would have to engage them to 

see whether you agree. 

The CHAIRMAN. Senator Corker. 

Senator CORKER. Thank you, Mr. Chairman. 

And thank you both for being here. 

It seems to me that the description of ‘‘imminent threat’’ is one 

that, over time, needs to be teased out. I mean, do you guys agree 

that imminent threat is one that can evolve, determined—based on 

what someone actually wants to do and, really, is difficult to 

define? 

Mr. KOH. I think the term that is being used is ‘‘continuing and 

imminent threat,’’ which is even a narrower set of people. So, we 

know what an imminent threat is, Senator. You know, a guy gets 

on a plane wearing underwear in his bomb—a bomb in his underwear or in his sneakers, and the next thing to do is to launch the 

attack. That is an imminent threat. 

FOREI-43947 with DISTILLER

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But, if you have an organization which is repeatedly planning 

attacks, and sometimes they use underwear bombs, sometimes they 

use shoes, sometimes they use cartridges, sometimes they use 

something in Times Square, the need to act against them may 

come earlier, because they never use the same delivery mechanism 

twice. I mean, they will not fly a plane into the Twin Towers—— 

Senator CORKER. And I think the point you make about that type 

of threat is, certainly, really clear. But, my guess is, if we get into 

a classified setting and discuss these things, there are numbers of 

groups that the administration has determined that are under, you 

know, this imminent-threat issue, and, you know—I do not know, 

AQAP, I do not know, are they planning threats against us today? 

ISIS, in Syria, are they—right now, they have their hands full. My 

guess is, at some point they may well do that. But, if we determined that they were an imminent threat—— 

Mr. KOH. Senator—— 

Senator CORKER [continuing]. I think that would be an interesting—— 

Mr. KOH [continuing]. Your question—— 

Senator CORKER. Is that not an interesting question to you? 

Mr. KOH. You have looked at this intelligence and in—— 

Senator CORKER. No, I have not looked at intelligence. I want to 

make sure any intelligence people watching—I have not looked at 

the intelligence. I am just basing my question off the last witness. 

Mr. KOH. In general terms, the primary factors are whether they 

attacked us before, whether they had success in that, and whether 

they are planning to attack us again in the very near future, and 

whether all signs leave no innocent explanation for that. That is 

an imminent threat. 

Senator CORKER. And to the question that Mr. Preston raised 

earlier about Afghanistan and getting back to the fact that the 

administration has not called this a Global War on Terror, but 

has—you know, is certainly carrying out counterterrorist operations all around the globe, if Afghanistan winds down at some 

point—let us say 24 months from now we do not have people doing 

what they now, today, are doing—would there need to be an AUMF 

to continue to strike entities that, you know, could pose a threat 

to us down the road? And I would like both of you to answer that, 

if you would. 

Mr. KOH. Unfortunately, there are many terrorist networks. But, 

you can distinguish two kinds: those who want to attack us—attack 

our buildings, attack our people, attack our soil—and those who 

are just dangerous or have local aspirations, and they may not like 

us. Now, the latter group are not members of al-Qaeda, we are not 

at war with them; and we may not like them and they may not like 

us, but we have to keep them under surveillance. The group that 

we care about are those who would attack the homeland and who 

pose a continuing and imminent threat of doing so, and where you 

think that there is a very good likelihood, because they did it 

before. 

Senator CORKER. Mr. Mukasey. 

Mr. MUKASEY. The standard is continuing imminent threat. I 

think where I part company, to a certain extent, with Professor 

Koh is the characterization of some of the local groups as people 

FOREI-43947 with DISTILLER

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who, ‘‘do not like us.’’ It is much more than that. They are people 

who have this attacking our homeland figuratively on their list of 

things to do on the refrigerator in the morning, if they had refrigerators. So, I think I would be somewhat more generous in my definition. But, yes, it has to be a continuing imminent threat, and one 

that can be rationally interpreted as continuing imminent threat. 

Senator CORKER. And so—but, let me come back. I mean, if we 

end the actual physical operations that we have ongoing in Afghanistan, I know there may be covert activities that would not as Murphy pointed out earlier, may not be defined under these—but, 

would we need to continue to have an AUMF of any kind to continue our fight against, not the Global War on Terror, per this 

administration, but terror that happens all around the world? 

Mr. MUKASEY. As a legal matter, there is at least one vote in 

Hamdi that says that we need it in order to detain. But, more 

broadly—and I know the last group was cautioned to stay away 

from policy, but this does trench into policy—we need some kind 

of backing from Congress in order for the country to be behind any 

effort that we make. And that is true regardless of where we do 

it. 

Senator CORKER. But, I do not think Mr. Koh agrees with that. 

Mr. KOH. Well, I agree with your view, Senator, that Congress 

has a role to play in defining how much authority it wants the 

President to have to deal with the current situation. And the current situation, it seems to me, is one where if the organizations 

with which we have been in armed conflict for the last 13 years are 

reduced in danger, you could shrink the AUMF to address their 

remnants or, at a certain point, when you think that they are a 

sporadic threat, you could eliminate the AUMF altogether and rely 

on continuing and imminent threat. But, that would allow you, for 

example, it seems to me, to have legal authority to—as an imminent threat, deal with the people who killed our citizens in 

Benghazi. They did it before, they pose a continuing imminent 

threat, they seem to raise those issues. Now, there would be things 

that would need to be done. If the Libyan Government is capable 

of addressing them, you might have to defer to that first. 

Senator CORKER. Mr. Chairman, thank you. 

And thank you both for being here. 

The CHAIRMAN. Senator Murphy. 

Senator MURPHY. Thank you, Mr. Chairman. 

Mr. Koh, I really appreciate your suggestions on how Congress 

can grapple with this expanded Article 2 authority, especially in 

perhaps the future absence of an AUMF. 

I guess you hear that one of the questions—this is a question for 

General Mukasey, as well—you hear that we have twin struggles 

here. We have a struggle with what authority we grant the President, and then we have a struggle with what role, then, Congress 

plays to oversee that authority. And part of the danger that I see 

is that, as more and more potential activities happen under covert 

authorities, there is a very small group of Senators and Congressmen that actually get to oversee those questions of what is an 

imminent threat. There is a tiny, select group of people who have 

jurisdiction and clearance in order to determine whether there is 

FOREI-43947 with DISTILLER

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or is not an imminent threat that would trigger those Article 2 

authorities. 

I would love to get rid of AUMF, but my concern is that we then 

live in a world in which the determination of imminent threat and 

the factors that go into that are available to be debated by a very 

small number of Senators and Congressmen. And, given how fuzzy 

the first panel suggested the limitations on that authority are, 

reserving the authority, as I heard it, to take action against a sovereign nation without consulting Congress first, what is both your 

recommendations on how we provide for a more robust and open 

debate in Congress about the specifics relative to authorities under 

Article 2? 

Mr. KOH. So, Senator, your questions, I think, illustrate the— 

how to—what is the relationship between constitutional authority 

of the President and statutory authority of the Congress. And 

maybe the best way to think of it is what we call ‘‘framework statutes.’’ There is a constitutional space in which the President can 

act. And if he acted under constitutional authority, it would not be 

illegal, but he has no guidance. And so, in many areas of the law— 

intelligence oversight, international emergencies, sanctions, arms 

export control—Congress has passed, essentially, framework legislation that defines what can or cannot be done, defines reporting 

requirements, defines who is supposed to be part of the process, 

and clarifies what some of these issues mean. For example, it could 

clarify what ‘‘continuing and imminent threat’’ means. 

Now, the reason why it is important to put it this way is, if that 

statute suddenly disappeared, would the President still have 

authority? As a constitutional matter, probably, yes. But, would 

that be the best policy, as opposed to working with Congress to be 

what they called in the ‘‘Steel Seizure Case,’’ category 1, the highest level of legitimacy? Clearly, it is better for Congress to have 

framed this constitutional space and then for the President to operate pursuant to these rules, both the restrictions as well as getting 

the authorities. 

Senator MURPHY. General Mukasey, do you see a policy danger 

in a limited number of Members of Congress being involved in 

these discussions about Article 2 authority in the absence of 

AUMF? 

Mr. MUKASEY. Of a statute? 

Senator MURPHY. Yes. 

Mr. MUKASEY. Absolutely. And I think you put your finger on a 

good reason for not simply letting the AUMF lapse or get off the 

books, but, rather, reshaping it, doing some of what Professor Koh 

suggested, maybe some of what I suggested before. You have— 

because if you have a statute on the books, then this committee, 

the Intelligence Committees, the Armed Services Committee can 

conduct their oversight functions in addition to having particular 

Members of Congress briefed, and—a limited number of Members 

of Congress briefed, and have that information restricted to only a 

few people. 

Senator MURPHY. And I think the claim that many of us is—have 

made is that, as we have seen broadened the authority to conduct 

activities under Article 2, to conduct ongoing large-scale military 

activities in a covert manner, it becomes more problematic to not 

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have the Foreign Relations Committee and the Foreign Affairs 

Committee read into those matters, because they have broad and 

sometimes crippling foreign policy implications for the United 

States. I think it is a worthwhile endeavor. 

I want to just follow up on some questions that the chairman 

was asking the first panel specific to the authority on operations 

in Syria. I am not sure that we got—I think the answer was—is 

that there was authority for the President to conduct military operations in Syria, as was initially proposed, without congressional 

authorization. I was not particularly clear as to where that authority would have come from. But, let me just ask that to both of you. 

Do you believe that the President had authority, should he have 

decided independently to take military action in Syria, as he had 

proposed and asked Congress for authority, without congressional 

authorization? 

Mr. KOH. So, I think it depends on what he would have done. If 

what he did was simply hit a bunch of chemical weapons sites, and 

that was a one-time thing, we would be hard-pressed to say that 

was unconstitutional. 

The question, as a matter of law, is, Is it war, in a constitutional 

sense? If it is war, Congress has to approve it. A one-time hit on 

a bunch of chemical weapons may not rise to the level. If it goes 

on for 60 days, then, under the War Powers Resolution, the question is, Is it hostilities, in a statutory sense? And, contrary to what 

Senator Corker said, the setting up of the no-fly zone happened in 

10 days. Sixty days on, less than 1 percent of the ordnance in 

Kosovo was being dropped in Libya. My view was then, and 

remains, that it was not hostilities, in a statutory sense. 

I want to come back to one point, Senator, which I think is important. I think Congress has three options. One bad option, which 

I would urge you not to pursue, which is to use a sense of frustration with the AUMF to expand it and extend it inadvertently. I 

think that would perpetuate war. I think you have two good options, or two better options than that. One is, if you want to narrow 

it to meet the current situation, and then ultimately repeal it, that 

is the best. If this is not a good time to legislate because people 

cannot agree, you could see whether the situation on the ground 

leads to the eventual diminishing of the threat of al-Qaeda, and 

just repeal it later. In other words, not narrow, but just move right 

to the repeal later on down the road. 

But, I think that is the real choice. Do not extend and expand. 

Either wait and repeal or narrow and repeal. 

Senator MURPHY. I know we have a vote on the floor, so I will 

yield back at this point. 

The CHAIRMAN. Okay. 

Well, with the thanks, to both of you, of the committee for your 

insights—and I have a feeling we will be continually seeking to 

engage you in the days ahead—the record for this hearing will be 

held open until the close of business on Friday. 

And, with that, this hearing is adjourned. 

[Whereupon, at 12:28 p.m., the hearing was adjourned.] 

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ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

WRITTEN STATEMENT OF HUMAN RIGHTS FIRST

SUMMARY AND RECOMMENDATIONS

Human Rights First welcomes the Senate Foreign Relations Committee’s attention to the status and future of the 2001 Authorization for the Use of Military Force 

(AUMF). The debate at hand raises profound legal and policy issues that are critical 

to our democracy and our security. Is the United States engaged in armed conflict 

as defined by international law? If so, does the 2001 AUMF meet domestic and 

international legal criteria for authorizing the types of use of force that the U.S. is 

now employing? 

These questions may seem inessential at best to policymakers and operators 

intent on securing authorization to go after a suspect or push an interrogation in 

real time. And they may seem academic or a luxury when placed against the lives 

of comrades lost on the battlefield in Afghanistan, or the fate of 200 girls ripped 

from school into sexual servitude. 

In fact, the strong wall between war and peace underpins the democratic stability 

that Boko Haram wants to keep out of Nigeria and Osama bin Laden sought to 

undermine here at home. A state of perpetual warfare skews our policymaking 

framework toward decisions designed to eliminate—rather than manage—threats, 

an unrealistic goal that leads to unbalanced and unhealthy policy results. The 

longer the United States remains in a state of armed conflict to take advantage of 

the flexibility war allows, the more likely it is that extraordinary powers become the 

norm and, in the worst case, that policies creep in that are the hallmarks of dictatorships and enemies of human rights: detentions without charge or trial, 

extrajudicial killings, military tribunals, and mass surveillance. 

In recent years, military and diplomatic leaders have documented the high 

increasing costs of prolonged and global armed conflict: partners and allies reluctant 

to cooperate on counterterrorism operations, authoritarian leaders cynically pointing 

to U.S. excesses to justify their own repressive policies, loss of support and trust 

in American efforts among publics in countries such as Yemen. At home as well, 

public controversy and distrust has risen around every aspect of our wartime activities. And counterterrorism professionals continue to point to a suite of core competencies—nonmilitary policies that are essential to our security—that are underemphasized and underresourced. 

To date, Congress, military leaders, and outside experts have debated reforms and 

transparency piecemeal. Below, Human Rights First reviews the legal and policy 

ramifications of maintaining the current AUMF, adopting a new one, or moving to 

reliance on nonwar national security authorities, and makes the following recommendations: 

• Congress and the administration should publicly debate and clarify the shifting 

nature of the threat posed by Al Qaeda, and the core competencies and additional legal authorities, if any, needed to keep Americans secure. 

• The administration should remedy the lack of transparency about current U.S. 

policy under the AUMF, by disclosing to Congress and the American people: 

Æ With which groups the administration considers the United States to be at 

war; 

Æ Which groups the administration considers to be ‘‘associated forces’’; 

Æ The countries in which military force is currently being used, the criteria 

it uses to classify targets and collateral damage; and 

Æ Any and all legal memoranda and policy guidance that govern lethal targeting operations. 

• The administration should describe in concrete and specific terms the conditions 

necessary to bring an end to the armed conflict with Al Qaeda and associated 

forces. 

• The administration should clarify and reform its legal and policy framework for 

the use of lethal force outside of active zones of hostilities to put it on more solid 

footing by bringing it further in line with the requirements of international 

human rights law. 

• Congress should hold a series of hearings, with the cooperation of the administration, to examine the most effective way to narrow and ultimately repeal the 

2001 AUMF. Congress should not pass any new AUMF that would expand the 

mandate contained within the 2001 AUMF. 

• The administration and Congress should seek and implement a bipartisan solution to remove one of the most problematic legacies of the AUMF—the detention 

FOREI-43947 with DISTILLER

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facilities at Guantanamo Bay—by transferring all cleared detainees to their 

home or third countries, prosecuting detainees suspected of criminal conduct in 

Article III courts, and transferring the remaining detainees to the United States 

with a view toward their ultimate release or prosecution elsewhere. 

INTRODUCTION

Is war the best way for the government to organize, and citizens to understand, 

a campaign that reflects few of the attributes of how we understood war for hundreds of years? 

The law has much to say about this; America’s best lawyers and soldiers believed 

a clear separation between wartime and peacetime behavior was essential, and 

worked to codify it in our laws and international law. 

This hearing has as its starting point a legal debate: is the United States engaged 

in armed conflict as defined by international law? If so, does the 2001 AUMF meet 

domestic and international legal criteria for authorizing the types of use of force 

that the U.S. is now employing? 

These questions may seem inessential at best to policymakers and operators 

intent on securing authorization to go after a suspect or push an interrogation in 

real time. And they may seem academic or a luxury when placed against the lives 

of comrades lost on the battlefield in Afghanistan, or the fate of 200 girls ripped 

from school into sexual servitude. 

In fact, the strong wall between war and peace underpins the democratic stability 

that Boko Haram seeks to keep out of Nigeria and Osama bin Laden sought to 

undermine here at home. A state of perpetual warfare skews our policymaking 

framework toward decisions designed to eliminate—rather than manage—threats, 

an unrealistic goal that leads to unbalanced and unhealthy policy results. The 

longer the United States remains in a state of armed conflict to take advantage of 

the flexibility war allows, the more likely it is that extraordinary powers become the 

norm and, in the worst case, that policies creep in that are the hallmarks of dictatorships and enemies of human rights: detentions without charge or trial, 

extrajudicial killings, military tribunals, and mass surveillance. 

Congress, military leaders, and outside experts have debated such reforms piecemeal, out of concern for fundamental rights and freedoms and a sense that U.S. 

counterterrorism efforts are warped by an overemphasis on tools available in wartime. 

Course correction must come with limiting the scope of the government’s claimed 

armed conflict to situations that actually resemble war—the exchange of hostilities 

of sufficient intensity between the United States and another state or an organized 

armed group. They can begin when the administration sets out clearly where and 

against whom it believes the United States to be in an armed conflict, and works 

with Congress to decide whether such authority is the wisest choice to achieve its 

objectives. The United States clearly remains in an armed conflict in Afghanistan. 

However, counterterrorism operations far from any battlefield against groups that 

have limited to no connection to core Al Qaeda or the Taliban and the 9/11 attacks 

do not fall within an armed conflict framework, unless the facts on the ground meet 

the legal test for what constitutes an armed conflict under international law: ongoing hostilities of sufficient intensity with an organized armed group. Sporadic acts 

of violence or terrorist attacks by groups or individuals do not meet this test. 

Despite the best efforts of intelligence and security agencies, the United States 

will likely continue to face threats from terrorism, which may result in successful 

terrorist attacks such as the attacks against our Embassy in Benghazi on September 11, 2012. The response, however, cannot and should not be to declare war 

or authorize the use of military force against any terrorist group that presents a 

concern to the United States. To do so would not only be inconsistent with the fundamental principles of the rule of law, but would also likely be ineffective in the 

long-term struggle against extremist groups that seek to goad the U.S. into overreaction. 

WHAT IS THE AUMF?

Three days after the unprecedented attacks of September 11, 2001, Congress 

passed the most open-ended Authorization for the Use of Military Force (AUMF) in 

American history. This law’s key 60-word sentence granted then-President George 

W. Bush power to use ‘‘all necessary and appropriate force against those nations, 

organizations, or persons’’ that he determined either executed the attacks or aided 

those who did.1

The AUMF does not specify whom its mandate is directed against, or what military objectives would satisfy the mandate. Perhaps consequently, in the nearly 13 

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years since its passage, the AUMF has been invoked not only to conduct the war 

in Afghanistan but also to justify targeted killings under the drone program reaching from Somalia to Yemen and the prolonged detention without charge of prisoners 

in Guantanamo Bay and Bagram Air Field. It has contributed to a wartime climate 

enabling expanded government powers such as the PATRIOT Act and the NSA’s 

expansive domestic surveillance programs. 

WHY REVISIT IT

The 2001 AUMF was passed by Congress within days of the 9/11 attacks, before 

the Bush administration had identified with certainty the full universe of those perpetrators. 

As the Obama administration prepares to end combat operations in Afghanistan, 

numerous legal authorities have called into question the continued viability of the 

AUMF. The Supreme Court stated of the AUMF in Hamdi v. Rumsfeld that ‘‘If the 

practical circumstances of a given conflict are entirely unlike those of the conflicts 

that informed the development of the law of war, that understanding [of who may 

be detained until the cessation of hostilities] may unravel.’’ 2 This concern has been 

echoed by Brigadier General Mark Martins,3 chief prosecutor for the military commission trials at Guantanamo Bay, and former Pentagon General Counsel Jeh Johnson,4 now Secretary of Homeland Security. 

The 2001 AUMF is, on paper, confined to organizations responsible for committing 

or helping with the 9/11 attacks, or others who harbored them—generally understood to be core Al Qaeda, the group directly led by Ayman al-Zawahiri, and the 

Taliban in Afghanistan, and other groups directly engaged in hostilities with the 

United States. The administration has officially interpreted those organizations to 

include Al Qaeda and ‘‘associated forces,’’ including groups such as Al Qaeda in the 

Arabian Peninsula (AQAP), even though groups such as AQAP have little to no connection to the 9/11 attacks. 

Terrorist organizations in the headlines today, and groups that now pose specific, 

credible threats to the United States, often have a loose or unclear connection to 

‘‘core Al Qaeda’’ and the 9/11 attackers. Security professionals from across the political spectrum have commented that the 2001 AUMF bears little relevance to the 

shape of the struggle against terrorist groups that the U.S. remains engaged in. 

At least as important, the greatly varying tactics and levels of competence and 

ambition of our adversaries do not lend themselves to the set of rules and policies 

set aside in law as ‘‘armed conflict,’’ or the all-or-nothing approach evoked for Americans by the word ‘‘war.’’ 

‘‘Armed Conflict’’ is no longer the most effective paradigm for U.S. counterterrorism 

policy 

An overreliance on our military does a disservice to the extraordinary economic, 

diplomatic, and human capital resources that the United States can marshal in support of policy goals. Moreover, pursuing an unachievable goal of complete security, 

contributing to an inability to contextualize threats appropriately and deploy a full 

range of counterterrorism strategies short of war-making contributes to a dangerous 

stagnation in the foreign policy making apparatus of the U.S. Government. 

Shifting away from the authorities created by the overstretching of the 2001 

AUMF is the first step in reforming U.S. counterterrorism policy. By continuing institutional development of core competencies and acknowledging the shifting nature 

of the Al Qaeda threat, the U.S. Government can move from the post-September 11 

framework to a more nuanced and flexible approach to protecting our security. 

Given how our adversaries have evolved, where the existing approach has succeeded 

and where it has failed, such a shift will be more effective. Winding down controversial wartime activities will free resources and attention to remake our security 

assistance, promote security sector reform, the rule of law and democracy, and innovate in economic approaches. Those are changes that will ensure the United States 

can marshal its full military, economic, and human capital resources for ongoing 

efforts to thwart the tactics and perpetrators of terrorism. 

The large-scale wars in Iraq and Afghanistan conducted under the AUMF have 

carried a heavy price tag for the U.S. military, particularly on equipment, personnel, 

and veterans. The Department of Defense can anticipate an extremely large price 

tag for the withdrawal of military forces from Afghanistan, and even more costly 

will be the replenishing of obsolete or defective equipment. Linda J. Bilmes writes 

that ‘‘equipment, material, vehicles and other fixed assets have depreciated at an 

estimated six times the peacetime rate, due to heavy utilization, poor repair and upkeep in the field, and the harsh conditions in the region.’’ 5 In 2008 testimony to 

the Senate Armed Services Committee, General Richard Cody drew attention to the 

wars’ effects on readiness, arguing that because of heavy deployments, soldiers and 

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marines lacked training for major combat operations using their entire range of 

weapons. In this testimony, Cody stated that the Army did not have fully ready 

combat brigades on standby should another threat or conflict occur.6 At a time of 

tight budgets, and national debate over how to meet our obligations to the members 

of our Armed Forces and maintain readiness for tomorrow’s security threats, an 

existing AUMF which would permit a return to large-scale combat, and encourage 

the flow of resources into military counterterrorism as opposed to other policy options, is not in the Nation’s interest. 

As a world leader that promotes prosperity, opportunity, and liberty, the U.S. 

should be actively seeking a state of affairs in which armed conflict is minimized 

and cabined, rather than a permanent state of war with occasional lulls in the fighting. 

Asserting that we are entrenched in constant struggle and armed conflict projects 

to the world a lack of confidence in our ideals and institutions, and it sends the 

wrong message about the power of our opponents. As George Kennan wrote 68 years 

ago about another atypical international conflict, the cold war, the central challenge 

facing the United States was to ‘‘create among the peoples of the world generally 

the impression of a country which knows what it wants, which is coping successfully 

with the problems of its internal life and with the responsibilities of a world power, 

and which has a spiritual vitality capable of holding its own among the major ideological currents of the time.’’ 7

Instead, the continuation of the policies enacted within a war paradigm after 9/ 

11—ramped-up levels of targeted killings, lack of transparency about targets and 

outcomes, continued questions around rendition, detention, surveillance, detention 

at Guantanamo and prosecutions by military commission—is damaging our global 

leadership and credibility on basic human rights and the rule of law. 

Simply put, the war-based policies the U.S. has adopted are not popular with our 

allies or with civilians in the countries where we are engaged in a contest of ideals 

with extremists, and where the outcome may depend on people’s belief that the U.S. 

is on their side.8

The unpopularity of these policies is cynically exploited by those who wish us ill, 

and those who benefit from the United States diminished influence. Russian President Vladimir Putin, Zimbabwe’s Robert Mugabe, Syria’s Bashar al-Assad, and 

Iran’s Mahmoud Ahmadinejad have all pointed to Guantanamo to deflect attention 

from human rights abuses in their own countries. When the U.S. advocates with 

other governments for respect for human rights, its words are instantly undermined 

when a newscast sets images of Guantanamo against the American assertions of 

human rights as universal values. 

War-based policies have specific negative consequences for our security. Extremist 

groups use them to attract recruits; the New York Times has reported that ‘‘drones 

have replaced Guantanamo as the recruiting tool of choice for militants.’’ 9

These policies also undercut our ability to cooperate with crucial partners and allies. After a U.S. drone strike in Waziristan killed two German citizens in 2011, 

Germany restricted the type of information it shares with the U.S., a sharp reversal 

from being an eager partner in America’s fight against terrorism.10

Our insistence on using military commissions rather than federal courts to prosecute some terrorism suspects has also had negative consequences for the counterterrorism cooperation we depend upon. Attorney General Eric Holder said, ‘‘A number of countries have indicated that they will not cooperate with the United States 

in certain counterterrorism efforts—for instance, in providing evidence or extraditing suspects—if we intend to use that cooperation in pursuit of a military commission prosecution.’’ 11

AUMF-based military detention policies also continue to have negative ramifications. For example, the administration has stated that Guantanamo, which is based 

on AUMF authority, ‘‘plagues our bilateral and multilateral relationships, creates 

friction with governments whose nationals we detain, provides cover for regimes 

whose detention practices we oppose, and provides our enemies with a symbol used 

to foster anti-U.S. sentiments around the world.’’ 12

The choices made by Washington within an armed conflict framework are setting 

precedents that may harm our interests when used by other nations. John Brennan 

has said of drone use that the United States is ‘‘establishing precedents that other 

nations may follow, and not all of them will be nations that share our interests or 

the premium we put on protecting human life, including innocent civilians.’’ 13

WHY NOT LIVE WITH THE EXISTING AUMF?

Many observers have suggested that, either because the existing AUMF has 

allowed for counterterrorism policies under which no massive attacks on the U.S. 

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have been repeated, or because a polarized Congress in an election year is ill-suited 

to deliberate a new framework, the wisest course for the U.S. is to leave matters 

as they are. We disagree. 

First, while concern over the AUMF’s validity after withdrawal from the Afghanistan theater is real, the President retains sufficient authority to counter future 

threats from terrorism without the AUMF, as we lay out below. 

With respect to detention, the President and Congress should not allow the issue 

of Guantanamo to carry forward what has now become the longest war in American 

history. There is a reasonable path forward to dealing with Guantanamo, and legal 

experts agree that detainees must be prosecuted or transferred at the end of active 

hostilities. 

Second, the legal framework created by the AUMF is ill-fitting for the current 

threats we face and does not satisfy human rights advocates, the military, or 

counterterrorism professionals. Both liberals and conservatives have expressed concerns about the growing disconnect between the authorities and our actions. The 

further we get from 9/11, there is every reason to expect that the fit will grow more 

awkward, pushback from our partners sharper, and possibilities for abuse greater. 

Finally, standing war authorities are not needed for effective counterterrorism 

policy, and in some instances prove distorting and counterproductive to keeping 

Americans safe. 

THE U.S. CAN EFFECTIVELY COUNTER TERRORISM WITHOUT IT

Counterterrorism and military leaders agree that a successful U.S. policy will rely 

far less on the use of force, especially large-scale military engagements and occupations, than was the case in the years immediately following 9/11. From former 

Afghanistan commanders saying ‘‘we can’t bomb our way to victory’’ to recent media 

coverage of the difficulty the CIA is having transitioning away from wartime activities,14 evidence is mounting that Congress and the administration have much work 

to do to strengthen a comprehensive approach which leverages economic, diplomatic 

and human resources as well as intelligence and military assets. Continued emphasis on war authorities and the activities that flow from them has resulted in underdevelopment and underresourcing of some elements of a ‘‘whole-of-government’’ 

approach. The best counterterrorism policy for the post-post-9/11 era will put more 

resources into these core competencies, resources gained by getting away from the 

financial and human costs of the war paradigm. 

Conditional Security Assistance: The best way to keep America safe is to help 

partners ensure that terrorist threats are defeated in the countries where they 

start. This entails strong, effective support for military, intelligence, law enforcement and the rule of law. But too often over the last decade, resources for civilian 

security assistance have been stretched too thin, while counterterrorism training in 

Africa, the Middle East and Southeast Asia was carried out by contractors while the 

best U.S. counterterrorism troops were deployed in Iraq and Afghanistan. 

Sustainable Democratic Institutions and the Rule of Law: Funding to support 

independent strong courts, police, and local governments in countries facing the 

threat of terrorism has declined more sharply than military spending, while important parts of military assistance, such as vetting counterterrorism units for human 

rights abuse under the Leahy Law, remain grossly underfunded. The Leahy Law 

can also be used more robustly to resource and incentivize military justice in partner countries. 

Counter Threat Finance as a Tool to Marginalize Extremists: Perhaps Washington’s greatest counterterrorism innovation in the post 9/11 years, this approach is 

most effective when enforced multilaterally under U.S. leadership—which requires 

international support for U.S. approaches. 

Maximize the Role of the Criminal Justice System: More than 500 individuals 

have been convicted of international terrorism charges in federal court since 9/11.15

Improve Effectiveness, Focus of Intelligence Community: Observers continue to report that the intelligence community’s transition off a wartime footing is struggling 

and needs more emphasis from within and oversight from without. 

CHALLENGES AND RECOMMENDATIONS

In both his National Defense University (NDU) speech and the 2014 State of the 

Union Address, President Obama committed to moving the United States away from 

a permanent war footing, arguing that ‘‘We must define the nature and scope of this 

struggle, or else it will define us.’’ 16 His administration has since taken concrete 

steps toward transparency, oversight, and reform in specific areas including the targeted killing program and domestic surveillance efforts, and reinvigorated efforts to 

reduce the detainee population at Guantanamo and close the detention facility perFOREI-43947 with DISTILLER

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manently. Ending reliance on the AUMF and the policies that go with it is crucial 

to shifting United States counterterrorism policy off of a permanent war footing. 

To that end, Human Rights First urges Congress and the administration to work 

together to develop shared understandings about the shifting nature of the threat 

posed by terrorism; the current uses of wartime authorities and what they have 

accomplished; and the framework of an effective, whole-of-government counterterrorism policy that keeps Americans safe while reassuring our citizens and the world 

that we remain committed to human rights, liberty, and personal freedoms for ourselves and others. 

Recognize and clarify the shifting nature of threat 

Al Qaeda is no longer the same organization in terms of capability, structure, 

capacity, or ambition that launched the September 11 attacks against the United 

States. Policymakers no longer frame the counterterrorism challenge as hunting 

down a specific group of individuals responsible for specific attacks or protracted 

troop deployments in the Middle East. 

The Al Qaeda core leadership that threatened the United States in the aftermath 

of the September 11 attacks was the highly centralized critical node of a financial, 

ideological, and human capital terrorist network. This node has since been vastly 

reduced in terms of capability and influence. As then-Secretary of Defense Leon 

Panetta said in 2012, ‘‘over the last few years, Al Qaeda’s leadership ranks have 

been decimated. This includes the loss of four of Al Qaeda’s five top leaders in the 

last 21⁄2 years alone—Osama bin Laden, Sheikh Saeed al-Masri, Atiyah Abd alRahman, and Abu Yahya al-Libi.’’ 17

What has emerged in its wake is a complex web of groups, sharing at minimum 

an attraction to terrorist violence and a desire to trade on the Al Qaeda ‘‘brand.’’ 

Some, such as al-Nusra, have explicitly sworn allegiance to Al Qaeda’s core leadership and take direction from bin Laden’s successor, Ayman al-Zawahiri; 18 others 

appear to receive some training or financial support but limit their aims to internal 

or regional struggles, unlike Al Qaeda (Boko Haram appears to fit in this category); 19 and some have little or no operational connection or, as is the case of the 

Islamic State of Iraq and Greater Syria (ISIS, previously known as Al Qaeda in 

Iraq), have been thrown out of the Al Qaeda family.’’ 20

The AUMF categories of 9/11 perpetrators, supporters, or associated groups thus 

lack relevance to the current challenge. Specific groups, be they legitimate ‘‘franchises’’ of Al Qaeda core or merely imitators, must be assessed individually on the 

basis of their capabilities and ambitions, which vary significantly. 

It is misleading to characterize the rise of these other groups—connected in varying degrees or not at all to core Al Qaeda—as more or even equally dangerous to 

the United States. President Obama remarked that ‘‘in the years to come, not every 

collection of thugs that labels themselves Al Qaeda will pose a credible threat to 

the United States.’’ 21

Many pose an intense threat to their home governments and regional stability— 

in some cases American allies. Many, such as Boko Haram, ISIS, and al-Nusra have 

carried out large-scale attacks on civilians. Their rise must not be a matter of indifference to Americans. 

But that does not mean that a war footing—in legal terms, an armed conflict 

authorized by an AUMF—is the right policy response to most or all of them. It is 

simple logic that as Al Qaeda has changed, so must the U.S. response. By failing 

to recognize that many groups seeking to use the Al Qaeda label or connection for 

their own prestige do not constitute an imminent threat to the United States, we 

provide an overblown excuse to use far-reaching wartime policies that breed resentment in the international community and put our most fundamental rights and 

principles in jeopardy. 

Enable intelligent debate by clarifying for Americans where our Nation is using 

AUMF authorities and with what results 

Discussion of where armed conflict authorities are or are not needed is greatly 

hampered by the fact that the American people and many Members of Congress do 

not know basic facts about what operations are currently conducted under the 

AUMF, what other authorities are used to underpin uses of force, and what the results are. To gauge the costs and benefits of war authorities versus other authorities, enact new laws or repeal existing provisions, and conduct proper oversight, 

Congress must have this information. As noted above, transparency with the American people and the civilians around the world we aim to protect is essential to the 

long-term credibility of American counterterrorism policy and American leadership. 

Some Members of Congress have made requests, offered amendments, filibustered 

bills to acquire pieces of this information. Such a piecemeal approach will not 

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achieve the goal of making America safer and counterterrorism activities more sustainable: Coherence and a commitment to an articulated standard of transparency 

will make the drone strategy more defensible and effective. 

To that end, Human Rights First recommends that Congress connect its action 

on the AUMF, and its funding for the use of lethal force outside active zones of hostilities, to the release of the following information: 

(1) A list of organizations or groups the United States considers itself to be 

at war with; 

(2) A list of organizations or groups the United States considers to be ‘‘associated forces’’; 

(3) The specific laws and legal interpretations each U.S. Government agency 

involved relies upon in its use of lethal force, within and outside of armed conflicts, including: (a) An unclassified version of the Presidential Policy Guidance 

referenced by President Obama in his May 23, 2013, speech at the National 

Defense University 22 and (b) all relevant Department of Justice legal memos; 

(4) Where, when, and under what circumstances the U.S. believes it is using 

lethal targeting within an armed conflict, and where, when, and under what circumstances it believes it is acting outside an armed conflict; 

(5) The countries where the U.S. has conducted targeted killings since September 11, 2001, and identities of all individuals killed, both in the past and 

going forward; how each U.S. agency involved determines who has been killed 

after a strike; how each agency classifies those killed as ‘‘civilian,’’ ‘‘militant’’ or 

‘‘combatant’’; and summaries of all post-strike investigations, including who 

was killed, who was killed erroneously or constitutes ‘‘collateral damage’’ and 

whether and when apologies and/or compensation were provided for mistaken 

or collateral killings; 

(6) The criteria each U.S. agency involved (read: Department of Defense and 

CIA) uses to decide whom it may target with lethal force—that is, who constitutes a targetable member of Al Qaeda, the Taliban, or an ‘‘associated force;’’ 

what signatures are used to justify ‘‘signature strikes’’; and what exactly constitutes an ‘‘imminent threat’’ that justifies lethal force; 

(7) An explanation of how each relevant U.S. agency decides that capture of 

a target is not feasible and therefore warrants the use of lethal force, and explanations going forward why capture was not feasible in each instance. 

Elucidate a framework for effective post-armed conflict authorities 

U.S. and international law provide a comprehensive framework within which the 

United States can apprehend, detain, interrogate, prosecute, and—if necessary—use 

lethal force against, terrorism suspects without relying on AUMF-based law of 

armed conflict authorities. That framework also pertains to intelligence-gathering, 

an issue which is not discussed here, although Washington will face the same pressures to align its espionage and surveillance activities more closely with its partners’ understanding of international and domestic law, in order to retain support 

for its counterterrorism agenda abroad as well as at home. 

Transfer, arrest, and pre-trial detention 

In many cases, terrorism suspects will be arrested and prosecuted by foreign law 

enforcement and security officials, acting with the assistance of the United States 

Government and broader international community. Accordingly, building partner 

nation capacity to deal with threats must be the focus of a comprehensive counterterrorism strategy moving forward. 

However, in some cases where the terrorism suspect is of particular interest to 

the United States, U.S. officials must act to effectuate the arrest, despite the fact 

that the suspect is located abroad and subject to foreign criminal jurisdiction. 

In these cases, U.S. officials have authority to arrest terrorism suspects located 

abroad far before any terrorist attack has been committed or even planned. Several 

federal offenses apply extraterritorially, providing a basis for arresting individuals 

who have even limited connections to terrorist groups through providing training, 

money, logistical support, or other forms of assistance, irrespective of whether any 

terrorist attack has occurred.23

Terrorism suspects are often transferred to U.S. custody pursuant to extradition 

agreements or other formal procedures agreed upon by the U.S. and the country in 

which the suspect is located. In circumstances that require it, the military may 

effectuate capture, or assist U.S. law enforcement assets in apprehending and detaining terrorism suspects abroad. 

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Interrogation 

While a terrorism suspect is in custody, nothing prevents government officials 

from interrogating that individual, and using any information secured for intelligence purposes. Some have warned that the Miranda requirement forces the government to tell the suspect that he may remain silent and is entitled to a lawyer, 

thereby compromising an ability to effectively interrogate the suspect. This is incorrect for a number of reasons. 

First, in cases where there may be an ongoing terrorist threat, the public safety 

exception to Miranda would apply and government officials could interrogate the 

terrorism suspect and use the resulting information for any purpose, including prosecution, so long as the subject’s statements are voluntary. Second, even where government agents elect to read a suspect the Miranda warnings, in the majority of 

cases the suspect waives his rights or otherwise cooperates to provide information 

to the agents.24 Finally, Miranda violations occur, if at all, not at the point of interrogation, but only when and if the government attempts to introduce the ‘‘unMirandized’’ statements at the trial of the suspect. Therefore, government officials 

always retain the option of not reading a suspect the Miranda warnings and proceeding with an interrogation. The consequence of doing so is that government could 

use the information gained in such an interrogation for intelligence purposes, but 

not in a prosecution of the individual in question. The individual could still be prosecuted on the basis of other evidence, and even on the basis of subsequent interrogation by a ‘‘clean team’’ following Miranda warnings.25 Intelligence gained through 

lawful interrogations and law enforcement interviews includes: Al Qaeda communication protocols, Al Qaeda recruiting techniques, information on Al Qaeda’s 

finances, terrorist tradecraft used to avoid detection, information on Al Qaeda weapons programs and training, locations of Al Qaeda safe houses and training camps, 

information on Al Qaeda security protocols, identities of operatives involved in past 

and future planned attacks, and information about plots to attack U.S. targets.26

Prosecution 

The United States retains substantial flexibility to prosecute terrorism suspects 

irrespective of the circumstances surrounding their initial capture and interrogation. 

More than 500 individuals have been prosecuted and convicted in federal courts for 

international terrorism-related offenses. In dozens of these cases, the defendants 

were initially apprehended abroad. A number of these cases involved substantial 

periods of pre-trial detention and interrogation, and in many cases cooperation has 

extended throughout the prosecution phase and into the post-conviction phase. One 

such case is that of Lackawanna Six defendant Yahya Goba, who pled guilty to providing material support to Al Qaeda and was sentenced to 120 months in prison, 

but as part of his plea agreement, continued to provide information to aid the government investigation, even testifying as a government witness in several other 

cases.27

As noted above, military commissions have been a failure in every respect; they 

lack global credibility and have prolonged the wait for justice for victims. Recently, 

23 senior retired military leaders called the military commissions ‘‘a poor substitute 

for justice.’’ 28 To the degree that an end to wartime authorities require a move 

away from military commissions, this will not result in the loss of an effective tool 

for justice but rather will prompt reliance on the more credible and effective tools 

of our Federal court system. 

Post-conviction detention 

Likewise, 13 years’ experience has not indicated a necessary role for wartime 

authority for post-conviction detention. Hundreds of individuals convicted of terrorism-related offenses after 9/11 remain incarcerated in high-security U.S. prisons. 

According to Attorney General Holder, ‘‘Not one has ever escaped custody. No judicial district has suffered a retaliatory attack of any kind.’’ 29 After serving their sentences, noncitizen U.S. terrorism suspects are subject to immediate post-conviction 

deportation and mandatory detention pending the conclusion of removal proceedings. 

Lethal targeting 

The President has said that the number of instances in which lethal targeting is 

the chosen tool of counterterrorism should decline. Experts and military leaders 

have echoed this, for both moral and practical reasons.30 In narrow circumstances 

in which a terrorism suspect poses an imminent threat to the lives of Americans 

that cannot be dealt with through detention or other means, the President retains 

the authority under domestic and international law to use force against such 

threats. Christine Wormuth, Deputy Under Secretary of Defense, told Congress, 

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‘‘The President’s authority as Commander in Chief provides sufficient flexibility to 

respond to emerging terrorism threats posed by organizations not covered by the 

2001 AUMF.’’ 31 As a matter of domestic law, Article II of the Constitution provides 

clear authority for such operations, and Congress can and should play a role in further regulating and ensuring transparency, oversight, and accountability over such 

uses of force. 

As a matter of international law, uses of force in self-defense against groups that 

committed an armed attack against the United States are permitted under Article 

51 of the United Nations Charter.32 Further, international human rights law permits using force when it is required to save lives and there is no other means to 

deal with a threat.33

The administration has made significant progress toward compliance with applicable international law in articulating through Presidential Policy Guidance (PPG) 

criteria governing the use of lethal force outside of active zones of hostilities. However, important questions remain. The release, with appropriate redactions, of the 

underlying Presidential Policy Guidance (PPG), Office of Legal Counsel (OLC) 

memoranda, or other information pertaining to such lethal strikes is essential for 

Congress to make wise decisions about how the administration is defining key terms 

such as ‘‘imminence’’ and ‘‘feasibility of capture,’’ whether those definitions are consistent with Article II and international law—and whether the administration is 

fully complying with the criteria that it has laid out.34

Reject proposals to expand the AUMF’s mandate 

The post-armed conflict framework outlined above is legally sustainable and provides operators with substantial discretion to investigate, detain, interrogate, prosecute, and—where necessary—use lethal force against terrorism suspects, irrespective of whether such individuals are connected to Al Qaeda or the 9/11 attacks. By 

contrast, under the current AUMF, the government is only permitted to use law of 

war detention to detain individuals who are determined to be part of or substantially supporting Al Qaeda, the Taliban, or an associated force in hostilities against 

the United States. Where the individual does not have a strong connection to core 

Al Qaeda, hostilities in the Afghanistan war, or the 9/11 attacks, this is a difficult 

legal case to make. 

The weakness of the AUMF once applied beyond individuals with clear links to 

core Al Qaeda or 9/11 has called into question law of war detention and military 

commission trials at Guantanamo, as well as lethal targeting operations outside of 

the Afghan war theater against individuals and groups that have no connection to 

the 9/11 attacks. 

Noting these limitations, some have argued that Congress should pass a new 

AUMF to provide even broader wartime authorities to use the military to detain, 

prosecute, and target terrorism suspects. For example, one proposal would confer 

onto the executive branch authority to add groups to a list that would be covered 

by a new AUMF, even if such groups have not attacked the United States, and are 

not connected to core Al Qaeda, 9/11, or the conflict in Afghanistan.35

Congress should reject the idea of a new or expanded AUMF for three reasons: 

We have little or no evidence that preemptive U.S. military action against groups 

that do not pose us an imminent threat is either desired by the American people or 

is an operationally effective way of diminishing the long-term threat such groups do 

pose. Analysts have referred to groups such as Boko Haram in Nigeria, ISIS in Iraq, 

al-Nusra in Syria as ‘‘emerging threats.’’ There is no question that these groups are 

violent, anti-Western, and enormous threats to human rights and stability where 

they operate. But where such groups have not shown explicit capability or intention 

to target the security of the United States, the military activities permitted under 

an AUMF are the wrong response. 

An expanded AUMF directed at emerging terrorist threats would pose serious legal 

problems without conferring clear operational benefits. An AUMF encompassing 

groups that have not attacked the United States, or do not pose an imminent threat 

of attack, would not be consistent with international law. So-called ‘‘preemptive’’ 

uses of force against groups and individuals are not permitted under self-defense 

criteria. 

Similarly, authorizing AUMF-based wartime authorities in situations involving 

terrorist groups beyond active zones of hostilities would not be consistent with the 

laws of war, which can only be applied in ‘‘armed conflict’’—situations involving hostilities of sufficient intensity with organized armed groups. Although some groups, 

such as Boko Haram or Al Qaeda in the Islamic Maghreb, pose a serious threat in 

areas in which they operate, the United States is not engaged in an armed conflict 

with these groups under the laws of war and thus an AUMF directed at these 

groups would not be appropriate.36

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An AUMF directed at emerging threats also poses serious constitutional problems. 

Some have noted that an AUMF conferring authority to the executive branch to use 

force generally against emerging terrorist threats—without clear and specific limits—would run afoul of separation of powers principles, which require Congress to 

clearly define the scope of the authority conferred.37 Similarly, providing to the 

executive branch authority to bring new groups within an AUMF could constitute 

a violation of the nondelegation doctrine because Congress would be unconstitutionally delegating authority that is committed by the Constitution to the legislative 

branch. 

Finally, the value of an AUMF must be weighed against the risk of its use as a 

future blank check. The drafters of the 2001 AUMF have stressed that it is being 

used in ways they did not intend.38 Nothing would prevent this or a future administration from using even a carefully crafted new AUMF to justify another large-scale 

invasion or costly war without further congressional debate or authorization. 

SITUATIONS IN WHICH A NEW AUMF MAY BE APPROPRIATE

As noted, it is highly problematic as a matter of law and policy to expand the 

existing AUMF or pass a new one to target emerging terrorist threats that have not 

attacked the United States and do not pose an imminent threat of attack. Further, 

the United States has the authority under domestic and international law to use 

force to deal with imminent threats absent an AUMF. For these reasons, the administration has not requested additional AUMF authority and the President has indicated that he will not sign legislation that expands the AUMF’s mandate.39

However, there are circumstances in which an AUMF would be an appropriate 

and lawful response to a threat. The clearest example would be if the United States 

was attacked on a large-scale and Congress and the President intended to engage 

in a prolonged and sustained military campaign, which rose to the level of armed 

conflict, against one or more responsible armed groups. History also provides examples of Presidents choosing to act under imminent threat, and then come to Congress for authorization for an extended engagement. Congress has proven itself able 

to move quickly and supportively in such instances, and there is no reason to believe 

that has changed. 

In addition, in some situations, the United States may choose to engage on a prolonged basis in an ongoing armed conflict even if the United States has not yet been 

attacked. For example, if the United States were to decide to engage in military 

attacks on a sustained basis in the ongoing armed conflict in Syria, it would be appropriate for the executive branch to secure an AUMF from Congress before doing 

so. Similarly, most experts agree that there is an ongoing armed conflict in Yemen, 

and though Human Rights First does not take a position on whether that conflict 

is wise, the Congress may choose to authorize the United States to engage alongside 

the Yemeni Government in that armed conflict. 

CONCLUSION

The work of protecting the United States from terrorist violence is far from done. 

Yet it is increasingly clear that, both for effective counterterrorism and for preserving U.S. stature as a leader on human rights and the rule of law, the 2001 

AUMF and the wartime attitudes and policies it has facilitated are outdated. The 

domestic and international laws that built a strong wall between wartime and 

peacetime have a vital policy purpose; absent them, powers that were once extraordinary become the norm, and policies that are the hallmarks of dictatorships become 

associated with America. Congress and the administration have the opportunity to 

move beyond piecemeal attempts at reform to set a clear legal and policy framework 

that combats terrorism effectively and makes clear to our friends and enemies that 

we will not be goaded into eroding our national strength through a permanent state 

of war. Human Rights First supports this goal and looks forward to engaging in the 

hard work of elaborating specific legal and policy understandings on these vital 

questions. 

———————— 

End Notes 

1 Authorization for Use of Military Force § 2(a), 115 Stat. 224, 224 (codified at 50 U.S.C. § 1541 

note) (2001). 2 Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004). 3Karen DeYoung, ‘‘Afghan War’s Approaching End Throws Legal Status of Guantanamo 

Detainees into Doubt,’’ Wash. Post, Oct. 18, 2013. 4 Hon. Jeh Charles Johnson, General Counsel, U.S. Dep’t of Def., ‘‘The Conflict Against Al 

Qaeda and its Affiliates: How Will It End?,’’ Speech Before the Oxford Union (Nov. 30, 2012). 

FOREI-43947 with DISTILLER

71 

5Linda J. Bilmes, ‘‘The Financial Legacy of Iraq and Afghanistan: How Wartime Spending 

Decisions Will Constrain Future National Security Budgets’’ (Cambridge, MA: Harvard Kennedy 

School, 2013), p. 3. 6 Ann Scott Tyson, ‘‘Heavy Troop Deployments Are Called Major Risk,’’ The Washington Post 

(Washington, DC, United States), April 2, 2008. 7George F. Kennan (‘‘X’’), ‘‘The Sources of Soviet Conduct,’’ Foreign Aff., July 1947. 

8Pew has documented a marked decrease in global approval of the administration’s international policy including drone strikes. See, e.g., ‘‘Global Opinion of Obama Slips, International 

Policies Faulted: Drone Strikes Widely Opposed,’’ Pew Res. Global Attitudes Project (June 13, 

2012). 9 Jo Becker & Scott Shane, ‘‘Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will,’’ 

N.Y. Times, May 29, 2012, at A1. 10 Holger Stark, ‘‘Drone Killing Debate: Germany Limits Information Exchange with US Intelligence,’’ Spiegel Online Int’l (May 17, 2011). 11 Eric Holder, Att’y Gen., Address at Northwestern University Law School (March 5, 2012). 12White House Plan for Closing the Guantanamo Bay Detention Facility (July 24, 2013). 13 John O. Brennan, Assistant to the President for Homeland Sec. and Counterterrorism, 

Remarks at Woodrow Wilson Int’l Ctr. for Scholars: The Ethics and Efficacy of the President’s 

Counterterrorism Strategy (Apr. 30, 2012). 14Kimberly Dozier, ‘‘Exclusive: CIA Falls Back in Afghanistan,’’ The Daily Beast (May 4, 

2014). 15 Adam Serwer, ‘‘Courts Can Win Terror Convictions After All,’’ MSNBC (March 26, 2014). 16President Barack Obama, Remarks by the President at the Nat’l Def. Univ. (May 23, 2013) 

[hereinafter NDU Speech]. 17Kate Brannen, ‘‘Leon Panetta: Al Qaeda’s Leadership ‘Decimated’ ’’, Politico (Nov. 21, 2012). 18 ‘‘Al-Nusra Commits to Al Qaeda, Deny Iraq Branch ’Merger’ ’’, Naharnet (April 10, 2013). 19Michael Stothard, William Wallis & Javier Blas, ‘‘West African Nations Pledge United Front 

against Boko Haram,’’ Fin. Times, (May 19, 2014). 20 Abu Bakr Al-Baghdadi, head of ISIS, scoffed that ‘‘I have to choose between the rule of God 

and the rule of Al Zawahiri, and I choose the rule of God. See, e.g. Aryn Baker, ‘‘Why Al-Qaeda 

Kicked out its Deadly Syria Franchise,’’ Time (Feb. 3, 2014). 21 NDU Speech, supra note 16. 22 NDU Speech, supra note 16. 23See generally Charles Doyle, Cong. Research Serv., 94–166, Extraterritorial Application of 

American Criminal Law (2012). 24 Richard B. Zabel & James J. Benjamin, Jr., in Pursuit of Justice: 2009 Update and Recent 

Developments 30, Human Rights First (2009). 25See, e.g., Benjamin Weiser, ‘‘Hearing on Terror Suspect Explores Miranda Warning,’’ N.Y. 

Times, Dec. 13, 2011, at A31. 26See generally David S. Kris, ‘‘Law Enforcement as a Counterterrorism Tool,’’ 5 J. Nat’L 

Security L. & Pol’y 1 (2011). 27 Richard B. Zabel & James J. Benjamin, Jr., In Pursuit of Justice: Prosecuting Terrorism 

Cases in Federal Courts 118–19, Human Rights First (2008). 28Letter from retired U.S. generals and admirals to Senators Richard Durbin and Ted Cruz, 

Chairman and Ranking Member, Senate Judiciary Committee, Re: Subcommittee on the Constitution, Civil Rights and Human Rights Hearing on Closing Guantanamo: The National Security, Fiscal, and Human Rights Implications (July 24, 2013). 29 Eric Holder, Att’y Gen., Address at the Univ. of Cal. Berkeley School of Law Commencement (May 11, 2013). 30See generally Joshua Foust, Oversight for Effectiveness: A Counterterrorism Perspective on 

the Targeted Killings ‘‘White Paper,’’ Nat’l Sec. Network (2013). 31 Advance Questions for Christine E. Wormuth, Nominee for the Position of Under Secretary 

of Defense for Policy, S. Armed Serv. Comm. (Feb. 25, 2014). 32 U.N. Charter art. 51. 33 Report of the Special Rapporteur on extrajudicial, summary, or arbitrary executions, Philip 

Alston, U.N. Doc. A/HRC/14/24/Add.6 (May 28, 2010). 34 In active zones of hostilities where the United States may be using force to aid a foreign 

government in an armed conflict against a local group with terrorism-related ties, broader lawof-war based lethal targeting authorities would continue to apply. 35 Robert Chesney, Jack Goldsmith, Matthew C. Waxman, & Benjamin Wittes, A Statutory 

Framework for Next—Generation Terrorist Threats, Hoover Inst. (2013). 36 Although an AUMF does not constitute a Declaration of War under domestic law and cannot create a state of armed conflict under international law, historically AUMFs have nonetheless constituted, in effect, war authorizations and signaled an intent to engage in armed conflict. 37 Jennifer Daskal & Steve Vladeck, After the AUMF: ‘‘A Response to Chesney, Goldsmith, 

Waxman, and Wittes,’’ Lawfare (March 17, 2013). 38See Andrew Rosenthal, Op-Ed., ‘‘The Forever War,’’ N.Y. Times Taking Note (May 17, 

2013); Jack Goldsmith, ‘‘Congress Must Figure Out What Our Government Is Doing In the 

Name of the AUMF,’’ Lawfare (May 17, 2013). 39 NDU Speech, supra note 16. 

RESPONSES OF STEPHEN W. PRESTON TO QUESTIONS

SUBMITTED BY SENATOR BOB CORKER

Question. Imminent Threats.—In answering the below question, please in every 

instance clearly distinguish between which portions of your answers relate to: legal 

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authorities versus policy guidance; U.S. versus international law; and the authorities granted by the 9/11 AUMF versus those granted by Article II of the Constitution. 

In your testimony, you discussed the authority of the President to use lethal force 

against ‘‘imminent’’ threats to the United States. 

♦ Please define ‘‘imminent’’ and explain in detail both the legal authorities on 

which that definition is based and how the administration arrived at that definition. Does a group that has previously conducted an attack against Americans 

constitute an imminent threat? 

Answer. Article II of the Constitution provides the President with the authority 

to take military action for the purpose of protecting important national interests, 

and stopping an imminent threat would be a clear and compelling example of an 

important national interest. Clearly, an individual or group that is planning a specific attack to take place in the near term and that has the capability to carry out 

such plans would constitute an imminent threat. Attorney General Holder, in his 

remarks on March 5, 2012, at Northwestern University School of Law, explained 

that the determination of whether an individual presents an ‘‘imminent’’ threat may 

incorporate consideration of (1) the relevant window of opportunity to act against 

that individual, (2) the possible harm that missing the window would cause to civilians, and (3) the likelihood of heading off future disastrous attacks against the 

United States. As the Attorney General said: 

As we learned on 9/11, al-Qaeda has demonstrated the ability to strike 

with little or no notice—and to cause devastating casualties. Its leaders are 

continually planning attacks against the United States, and they do not 

behave like a traditional military—wearing uniforms, carrying arms openly, 

or massing forces in preparation for an attack. Given these facts, the Constitution does not require the President to delay action until some theoretical end-stage of planning—when the precise time, place, and manner of 

an attack become clear. Such a requirement would create an unacceptably 

high risk that our efforts would fail, and that Americans would be killed. 

Indeed, in comments similar to the Attorney General’s, John Brennan, thenAssistant to the President for Homeland Security and Counterterrorism, noted in 

his speech at Harvard Law School in September 2011 that we are finding increasing 

recognition in the international community that a more flexible understanding of 

‘‘imminence’’ may be appropriate when dealing with terrorist groups and that what 

constitutes an ‘‘imminent’’ attack should be broadened in light of the modern-day 

capabilities, techniques, and technological innovations of terrorist organizations. 

Timely, credible, and accurate intelligence and information are critical in determining whether an individual or group presents a ‘‘continuing, imminent threat to 

U.S. persons.’’ 

Question. Lethal Action Against al-Qaeda.—In answering the below question, 

please in every instance clearly distinguish between which portions of your answers 

relate to: legal authorities versus policy guidance; U.S. versus international law; and 

the authorities granted by the 9/11 AUMF versus those granted by Article II of the 

Constitution. 

♦ Does the 9/11 AUMF authorize the President to take lethal action against 

al-Qaeda or its members or its associated forces regardless of whether they pose 

an imminent threat? Does the United States currently undertake lethal action 

outside of Afghanistan against al-Qaeda or its members or its associated forces 

where they do not pose an imminent threat? 

Answer. The AUMF authorizes the use of military force against al-Qaeda, the 

Taliban, and associated forces. This authority is not limited to imminent threats. 

Pursuant to the President’s policy guidance, the Department of Defense currently 

undertakes lethal counterterrorism direct action outside the United States and 

areas of active hostilities only against targets that pose a continuing, imminent 

threat to U.S. persons. 

Question. Lethal Action Against Nonimminent Threats.—In answering the below 

question, please in every instance clearly distinguish between which portions of your 

answers relate to: legal authorities versus policy guidance; U.S. versus international 

law; and the authorities granted by the 9/11 AUMF versus those granted by Article 

II of the Constitution. 

♦ Does the 9/11 AUMF authorize the President to take lethal action against foreign individuals or members of foreign terrorist organizations (other than 

al-Qaeda or its members or its associated forces) that do not pose an imminent 

threat? 

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Answer. The AUMF authorizes the use of military force against al-Qaeda, the 

Taliban, and associated forces. This authority does not depend on whether there is 

an imminent threat. 

Question. Article II Lethal Action Authorities.—In answering the below question, 

please in every instance clearly distinguish between which portions of your answers 

relate to: legal authorities versus policy guidance; U.S. versus international law; and 

the authorities granted by the 9/11 AUMF versus those granted by Article II of the 

Constitution. 

♦ Does Article II authorize the President to take lethal action against foreign individuals or members of foreign terrorist organizations that do not pose an imminent threat? 

Answer. Article II of the Constitution provides the President with the authority 

to take military action for the purpose of protecting important national interests. 

Any use of military force by the United States would be governed by the law of 

armed conflict, which includes limitations on the use of military force to actions that 

are necessary and proportionate and that are consistent with the principles of distinction and proportionality. 

Pursuant to the President’s policy guidance, the Department of Defense currently 

undertakes lethal counterterrorism direct action outside the United States and 

areas of active hostilities only against targets that pose a continuing, imminent 

threat to U.S. persons. 

Question. Lethal Action Taken.—Has the administration taken lethal action 

against members of a foreign terrorist organization that was not covered by the 9/ 

11 AUMF? 

Answer. Yes. For example, members of the designated foreign terrorist organization Kata’ib Hezbollah were reportedly among those killed in the course of U.S. or 

combined U.S.-Iraq military operations in Iraq during Operation IRAQI FREEDOM. 

Question. Extent of AUMF Authorities.—In answering the below question, please 

in every instance clearly distinguish between which portions of your answers relate 

to: legal authorities versus policy guidance; U.S. versus international law; and the 

authorities granted by the 9/11 AUMF versus those granted by Article II of the 

Constitution. 

♦ Does the AUMF authorize the President to use force against groups or individuals that pose a threat, imminent or otherwise, to anyone or anything other 

than the United States and U.S. persons? What about U.S. coalition partners 

whether located inside or outside Afghanistan? What about U.S. allies? What 

about U.S. national security or other U.S. national interests? 

Answer. The 2001 AUMF authorizes the President to use military force against 

al-Qaeda, the Taliban, and associated forces. As those groups also present ongoing 

threats to a number of U.S. coalition partners and allies, U.S. counterterrorism 

operations pursuant to the 2001 AUMF serve mutual interests of the United States 

and those partners and allies. 

Question. Article II Versus AUMF.—In answering the below question, please in 

every instance clearly distinguish between which portions of your answers relate to: 

legal authorities versus policy guidance; U.S. versus international law; and the 

authorities granted by the 9/11 AUMF versus those granted by Article II of the 

Constitution. 

♦ If the AUMF is repealed, how does the scope of Article II authority differ, if at 

all, from current U.S. policy governing the use of force outside of Afghanistan? 

Answer. The AUMF authorizes the use of military force against al-Qaeda, the 

Taliban, and associated forces. This authority does not depend on whether any such 

group poses a threat of imminent attack. Article II of the Constitution provides the 

President with the authority to take military action for the purpose of protecting 

important national interests. Pursuant to the President’s policy guidance, the 

Department of Defense currently undertakes lethal counterterrorism direct action 

outside the United States and areas of active hostilities only against targets that 

pose a continuing, imminent threat to U.S. persons regardless of the legal authority 

for that action. 

Question. Presidential Guidance.—Will you provide the Senate Foreign Relations 

Committee with the text of any current or prior Presidential policy guidance related 

to the 9/11 AUMF? 

Answer. The administration is committed to keeping the appropriate congressional committees fully informed of matters within their jurisdiction, and consistent 

FOREI-43947 with DISTILLER

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with this commitment, senior administration officials have briefed the Congress on 

the written policy standards and procedures approved by the President in May 

2013, concerning operations to capture or employ lethal force against terrorist targets outside the United States and outside areas of active hostilities. Beyond that, 

access to Presidential policy guidance related to the 9/11 AUMF is not controlled 

by the Department of Defense. I have therefore referred your request for the text 

of any such Presidential guidance to the White House. 

Question. Exceptions to Policy.—Does the Presidential policy guidance related to 

the 9/11 AUMF provide for exceptions to its baseline policy requirements, and, if 

so, have such exceptions been employed and in what circumstances? Has the administration ever failed to apply, or has it ever deviated from, any applicable Presidential policy guidance related to the 9/11 AUMF in the use of lethal force? 

Answer. As noted in the section captioned ‘‘Reservation of Authority’’ of the May 

2013 fact sheet on U.S. Policy Standards and Procedures for the Use of Force in 

Counterterrorism Operations Outside the United States and Areas of Active Hostilities, those standards and procedures do not limit the President’s authority to 

take action in extraordinary circumstances when doing so is both lawful and necessary to protect the United States or its allies. To date, the President has not 

authorized any Department of Defense counterterrorism operations under this 

‘‘extraordinary circumstances’’ exception to the policy standards. 

Question. Feasibility of Capture.—The administration has limited lethal action to 

those individuals ‘‘whose capture is not feasible.’’ How is the feasibility of capture 

determined? What factors are considered and how are they balanced? Is the feasibility determination made with or without consideration of factors relating to the 

use of lethal force? In other words, is the feasibility, or comparative advantage, of 

the use of lethal force a factor in determining the feasibility of capture in that 

instance? 

Answer. There is no rigid formula for evaluating feasibility of capture; it is a judgment based on the facts and circumstances in the particular situation. Military 

determinations about feasibility of capture are largely driven by an assessment of 

risks, such as the risk to the capturing forces, the risk of civilian casualties, and 

the risk that the operation may not be successful. 

Question. New Terrorist Groups.—Have any foreign terrorist groups been covered 

by, or targeted under, the AUMF, at any time since its enactment, that were not 

in existence on 9/11/2001? If so, how many? 

Answer. Yes. For example, as I noted in my prepared remarks, in Afghanistan, 

the U.S. military currently conducts operations pursuant to the AUMF against 

al-Qaeda, the Taliban, and other terrorist and insurgent groups that are engaged 

alongside al-Qaeda and the Taliban in hostilities against the United States or its 

coalition partners. In addition, the International Security Assistance Force and U.S. 

rules of engagement permit targeting of hostile personnel in Afghanistan based on 

the threat they pose to U.S., coalition, and Afghan forces or to civilians. 

To give another example, as I noted in my prepared remarks, in Yemen, the U.S. 

military has conducted direct action under the 2001 AUMF targeting members of 

Al Qaeda in the Arabian Peninsula (AQAP), which is an organized, armed group 

that is part of, or at least an associated force of, al-Qaeda. AQAP was not known 

by its current name until 2007, but al-Qaeda has been present in Yemen in some 

form since before the attacks of September 11, 2001. Al-Qaeda was responsible for 

the attack on the USS COLE in Yemen in October 2000. 

Question. List of Terrorist Organizations.—Does the administration maintain a 

list of terrorist organizations that fall within the 9/11 AUMF? If so, can this list 

be shared with the Foreign Relations Committee either in a public or classified 

setting? 

Answer. In my prepared remarks, I described the three contexts in which the 

United States is currently relying on the 2001 AUMF and the groups against which 

the U.S. military has taken direct action pursuant to the AUMF. 

Beyond those groups against which we have taken or contemplated taking military action, we do not maintain a comprehensive list of all groups that theoretically 

could be subject to military action pursuant to the AUMF. Whether any particular 

group is an ‘‘associated force’’ of al-Qaeda is a fact-intensive inquiry that requires 

a careful examination of relevant intelligence at the time military action is being 

contemplated. The administration generally undertakes that careful examination 

only if a concrete situation is presented for review. Accordingly, the fact that a terrorist group has not been determined to be an associated force of al-Qaeda does not 

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mean that the administration has made a final determination that the group is not 

an associated force. 

Per your request during the hearing, additional information on this topic has been 

provided by separate, classified communication to the committee. 

Question. Definition of Associated Force.—How do you define the term ‘‘associated 

force’’ with respect to al-Qaeda and the Taliban? What factors are considered in 

making the ‘‘associated force’’ determination? What level of confidence is required, 

and what legal standard must be met, in making such a determination? Would any 

of the following be sufficient on its own for a group to constitute an ‘‘associated 

force’’ of al-Qaeda: (1) a group’s pledge of loyalty to al-Qaeda; (2) adoption of the 

al-Qaeda brand; (3) acceptance of al-Qaeda’s command and control; (4) adherence to 

al-Qaeda’s ideology; and (5) use of al-Qaeda’s tactics, techniques, and procedures. 

What if in addition there is intelligence indicating that members of the group are 

actively planning operations against U.S. persons? Would a group’s explicit rejection 

of affiliation with al-Qaeda and of its command and control be sufficient to remove 

such a group from coverage by the 9/11 AUMF? What if in addition there is intelligence indicating that members of the group share al-Qaeda’s goal of targeting U.S. 

persons? What if in addition there is intelligence indicating that members of the 

group are actively planning operations against U.S. persons? 

Answer. As I indicated in my prepared remarks, the concept of an ‘‘associated 

force’’ is based on the well-established concept of cobelligerency in the law of war. 

To be an ‘‘associated force’’ of al-Qaeda or the Taliban, a group must be both (1) 

an organized, armed group that has entered the fight alongside al-Qaeda or the 

Taliban and (2) a cobelligerent with al-Qaeda or the Taliban in hostilities against 

the United States or its coalition partners. A group that embraces al-Qaeda’s ideology without actually joining the fight alongside al-Qaeda is not an ‘‘associated 

force,’’ nor is every group that commits or threatens to commit terrorist acts against 

U.S. persons an ‘‘associated force.’’ 

Question. AUMF and the Taliban Post-2014.—Does it continue to be the policy of 

the President that all combat operations in Afghanistan by U.S. Armed Forces will 

end in 2014? If so, will the 9/11 AUMF continue to apply to the Taliban after January 2015? If not, is it possible that United States will nevertheless remain in a state 

of armed conflict with the Taliban for purposes of international law? 

Answer. As described in the President’s May 27, 2014, speech as well as his most 

recent State of the Union Address, if the Afghan Government signs a security agreement that we have negotiated, a small force of Americans could remain in Afghanistan with NATO allies to carry out two narrow missions: training and assisting 

Afghan forces, and counterterrorism operations to pursue any remnants of al-Qaeda. 

The President has been clear that it is not in our interest to remain on a perpetual 

wartime footing, and that this war, like all others, must at some point come to an 

end. 

The change in the U.S. military mission in Afghanistan is an important milestone, 

but it will not in itself mean that the 2001 AUMF will not apply to the Taliban 

after 2014. Whether and to what extent an armed conflict with the Taliban continues will need to be assessed at that time based on conditions on the ground. 

Question. Law of War Detention Against Taliban.—Will the President maintain 

the ability to conduct law of war detention against members of the Taliban and its 

associated forces after January 2015? 

Answer. The change in the U.S. military mission in Afghanistan is an important 

milestone, but it will not in itself mean that the United States will no longer have 

authority to detain members of the Taliban in law of war detention after 2014. 

Whether, and to what extent, an armed conflict with the Taliban continues will 

need to be assessed at that time based on conditions in Afghanistan. 

Question. Termination of Active Military Operations in Afghanistan.—Are there 

any legal implications of the termination of active military operations in Afghanistan on the ability of the United States to conduct lethal or detention operations 

under the 9/11 AUMF against al-Qaeda and its associated forces? Are detention authorities under the 9/11 AUMF against al-Qaeda and its associated forces dependent 

on the existence of a ‘‘hot battlefield’’? What locations are considered today by the 

administration to be a ‘‘hot battlefield’’? 

Answer. The change in the U.S. military mission in Afghanistan is an important 

milestone, but it will not in itself mean that the 2001 AUMF will not apply to 

al-Qaeda and associated forces after 2014. The United States will continue to have 

legal authority to detain individuals from the al-Qaeda, and associated forces until 

the end of the armed conflict, as a matter of international law, and under the 

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AUMF. As Ms. McLeod noted in her prepared remarks, we remain optimistic that 

there will come a point when our efforts to disrupt, dismantle, and defeat al-Qaeda 

have succeeded to such an extent that we will no longer describe ourselves as being 

in an ‘‘armed conflict’’ with al-Qaeda to which the law of war applies. 

Question. Presidential Action Regarding AUMF.—Can the authorities provided by 

the 9/11 AUMF be terminated by the President acting alone, including through a 

statement declaring the end of the conflict? Can the President terminate the 9/11 

AUMF in part (i.e., terminate with respect to a specific group but not to others)? 

If so, by what mechanism? 

Answer. The President has expressed his commitment to move the United States 

off a permanent war footing and has made clear the intent to engage with Congress 

to ‘‘refine, and ultimately repeal’’ the AUMF. The President cannot, acting alone, repeal the AUMF, which is a U.S. statute. However, military operations that the 

AUMF authorizes are, like all U.S. military operations, subject to the President’s 

direction and control. Thus, the President could issue guidance limiting the military 

operations conducted pursuant to the AUMF. Additionally, a cessation of hostilities 

between the United States and al-Qaeda or the Taliban could mark the end of the 

armed conflict, after which the use of U.S. military force in the prosecution of that 

conflict would no longer be necessary and might be inconsistent with international 

law. 

Question. AUMF Termination.—Would the termination of the 9/11 AUMF toward 

any or all covered groups, whether by congressional action to repeal or by the President acting alone, end the armed conflict with such groups under international law, 

including with al-Qaeda? 

Answer. The repeal of the AUMF would not, in itself, necessarily end the conflict 

between the United States and al-Qaeda or the Taliban under international law. 

Whether and to what extent an armed conflict with the Taliban continued at that 

point would need to be assessed at that time based on conditions on the ground. 

Question. End of Armed Conflict Terminating AUMF.—Would the end of the 

‘‘armed conflict’’ for purposes of international law with all groups covered by the 

9/11 AUMF terminate the authorities granted to the President by the 9/11 AUMF? 

Answer. The end of the armed conflict between the United States and al-Qaeda 

and the Taliban would not itself terminate the 2001 AUMF. The AUMF is a U.S. 

statute that can only be modified or rescinded through the process prescribed in the 

U.S. Constitution. 

Question. Article II Authority for Detention.—In your testimony, you discussed 

the Article II authority of the President to use lethal force against an imminent and 

continuing threat to the United States. In such an instance, and in the absence of 

statutory authorization, would the President also have an Article II authority to 

detain enemy combatants under the laws of war? If so, what are the legal parameters of such a detention authority, including at what point would such a detention 

authority terminate? Is such a detention authority coextensive with the detention 

authority currently provided by the 9/11 AUMF as it relates to al-Qaeda and its 

associated forces? If not, does that factor weigh in favor of the use of lethal force 

in any way, including when assessing the ‘‘feasibility of capture’’? 

Answer. Where the President has authority under Article II to use lethal force 

against individuals who pose an imminent terrorist threat to the United States, he 

would also have authority to detain individuals posing that threat for some period 

of time. The legal parameters of the President’s authority for military detention in 

the absence of a statutory authorization are an unsettled area of law, (in part 

because military detention in the current conflict has been pursuant to the 2001 

AUMF). That said, any legal uncertainty about the long-term disposition of captured 

terrorists would not be a factor relevant to the ‘‘feasibility of capture.’’ It is the 

President’s policy that capture is preferred whenever feasible. 

Question. Article II Authority for Use of Lethal Force Versus Detention.—Are 

there circumstances where the President has Article II authority to use lethal force, 

but where he lacks law of war detention authority? In such a circumstance, would 

the lack of detention authority be a factor weighing in favor of the use of lethal force 

in any way, including when assessing the ‘‘feasibility of capture’’? 

Answer. The answer to both questions is ‘‘No.’’ Where the President has authority 

under Article II of the Constitution to employ lethal military force against individuals who pose a continuing imminent terrorist threat to the United States, he would 

also have authority to detain individuals posing that threat for some period of time. 

The legal parameters of the President’s authority for military detention in the 

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absence of a statutory authorization are an unsettled area of law (in part because 

military detention in the current conflict has been pursuant to the 2001 AUMF). 

Any legal uncertainty regarding the long-term disposition of a detainee would not 

be a factor in applying the President’s policy preference to capture rather than kill 

terrorist suspects when capture is feasible. 

RESPONSES OF MARY MCLEOD TO QUESTIONS

SUBMITTED BY SENATOR BOB CORKER

Question. In answering the below questions, please in every instance clearly distinguish between which portions of your answers that relate to: legal authorities 

versus policy guidance; U.S. versus international law; and the authorities granted 

by the 9/11 AUMF versus those granted by Article II of the Constitution. 

♦ Does the April 1, 2011, OLC Memorandum on Authority to Use Military Force 

in Libya reflect the administration’s current understanding of Presidential 

authority to take military action without prior congressional authorization? 

Answer. Yes, the April 1, 2011, OLC Memorandum on Authority to Use Military 

Force in Libya continues to reflect the administration’s position on the scope of Presidential authority to take military action without prior congressional authorization 

for the operations under consideration in that Memorandum. 

Question. The Libya OLC Memo states: ‘‘We have acknowledged one possible constitutionally based limit on [. . .] Presidential authority to employ military force in 

defense of important national interests—a planned military engagement that constitutes a ‘war’ within the meaning of the Declaration of War Clause may require 

prior congressional authorization’’(emphasis added). 

♦ Does this administration believe that conflict that constitutes a ‘‘war’’ within the 

meaning of the Declaration of War Clause might not require prior congressional 

authorization? 

♦ If so, under what circumstances? 

♦ Was congressional authorization necessary under the Constitution to conduct 

Operation Iraqi Freedom? 

♦ Was congressional authorization required at any point under the War Powers 

Resolution to conduct Operation Iraqi Freedom? If so at what point? 

♦ What is the definition of a ‘‘planned’’ military operation? 

Answer. While acknowledging a possible constitutionally based limitation on Presidential authority under the Constitution to employ military force in cases involving 

a planned military operation that constitutes a war within the meaning of the Declaration of War clause, the OLC Memorandum in question concluded that the anticipated nature, scope, and duration of the operations under consideration did not rise 

to the level of war in the sense of that clause. At the same time, this and other 

OLC opinions have recognized the congressional interest, including as reflected in 

the War Powers Resolution, in providing express congressional authorization for the 

use of force by the U.S. military in major, prolonged conflicts such as the wars in 

Vietnam and Korea, where a fact-specific assessment has been conducted regarding 

the anticipated nature, scope, and duration of the planned military operations and 

of the exposure of U.S. military personnel to significant risk over a substantial 

period. By providing for United States involvement in hostilities to continue for 60 

days (or 90 days for military necessity), Congress signaled in the War Powers Resolution that it considers express congressional authorization most critical for such 

major, prolonged conflicts. 

While what constitutes a ‘‘planned’’ military operation is a fact-specific question, 

the President decided to seek an Authorization to Use Military Force for Iraq in 

2002 prior to the commencement of Operation Iraqi Freedom, the Congress provided 

such an authorization in H.J. Res. 114, and the President in his signing statement 

set forth his position in relation to that authorization. These actions by Congress 

and the President moot the question whether such an authorization would have 

been required under the Constitution and the War Powers Resolution. Given international concerns with Iraq’s weapons of mass destruction (WMD) program and 

Iraq’s failure to comply with relevant United Nations Security Council resolutions, 

there was a sustained period of almost 10 months of preparation and planning for 

possible military action while the United States and others sought a diplomatic resolution of the crisis. In addition to publicly signaling the ongoing planning for military operations by passing the AUMF-Iraq, the United States actively sought (and 

received) commitments from a number of allies and partners for the deployment of 

a multinational force in the event that it became necessary to enforce applicable 

United Nations Security Council resolutions through military force. 

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78 

Question. According to the Libya OLC memo, the President has the constitutional 

authority to use force if he can ‘‘reasonably determine that such use of force [is] in 

the national interest.’’ 

♦ Can the President take lethal action against foreign individuals or members of 

foreign terrorist organizations that do not pose an imminent threat so long as 

he determines it is in the national interest to do so? 

♦ If so, what if any limits are there on such action? 

Answer. As the April 1, 2011, OLC memorandum indicated, the President has 

authority under the Constitution to use force not amounting to ‘‘war’’ in the constitutional sense, where he reasonably determines that such force is in the national 

interest, at least insofar as the Congress has not specifically restricted it by statute. 

In the case of Libya, the OLC memorandum identified regional stability and supporting the U.N. Security Council’s credibility and effectiveness as a sufficient basis 

to justify, under Article II of the Constitution, the President’s use of military force 

in Libya (a determination that did not involve a conclusion that Libya or any Libyan 

party posed an imminent threat to the United States). Whether and how the President’s constitutional authority to use force might be invoked in future cases, including the determination of the national interests that form the basis of potential military actions, will necessarily turn on the particular facts of those cases. 

As indicated in my testimony, any use of military force by the United States 

would be governed by international law. Under international law, the United States 

has an inherent right of self-defense to use force to respond to an armed attack, or 

the imminent threat of an armed attack. In addition, the United States may use 

military force on the basis of State consent or when authorized to do so by the UN 

Security Council. In the case of Libya, on March 28, 2011, the UN Security Council 

adopted Resolution 1973, which authorized member states, acting individually or 

through regional organizations, ‘‘to take all necessary measures . . . to protect civilians and civilian populated areas under threat of attack’’ in Libya. 

Question. Can a conflict constitute a ‘‘war’’ within the meaning of the Declaration 

of War Clause, or constitute ‘‘hostilities’’ for the purposes of the War Powers Resolution, in situations where the U.S. takes military action but there are no ‘‘boots on 

the ground’’? 

At what point or under what circumstances do unmanned drone strikes constitute 

a ‘‘war’’ within the meaning of the Declaration of War Clause, or constitute ‘‘hostilities’’ for the purposes of the War Powers Resolution? 

Answer. Whether the use of military force constitutes a ‘‘war’’ within the meaning 

of the Declaration of War Clause would, as described in previous OLC opinions, involve the need for a fact-specific assessment of the anticipated nature, scope, and 

duration of the planned military operations and of the exposure of U.S. military personnel to significant risk over a substantial period. Whether a military operation 

rises to level of ‘‘hostilities’’ for purposes of the War Powers Resolution similarly is 

a fact-based assessment. Whether there are ‘‘boots on the ground,’’ and how and to 

what extent the United States may be employing unmanned aerial vehicles or other 

weapons systems, would be among the considerations in conducting such assessments, but it is not possible in the absence of a specific factual context to anticipate 

how those factors would be assessed in every case. 

Question. In your testimony, you appeared to suggest the President had the 

authority to strike Syria after the August 2013 chemical weapons attack without 

congressional authorization. Is this the position of the administration? 

♦ If so, under what specific constitutional and statutory authority would those 

strikes have been conducted? 

♦ Please also provide your analysis of how such authorities apply to permit such 

strikes. 

♦ Under what theory of international law would such strikes be authorized? 

♦ Would the President have been required to notify Congress or seek congressional authorization pursuant to the War Powers Resolution of any such 

strikes? 

Answer. In his August 31, 2013, Rose Garden speech, the President communicated his decision to seek authorization for the use of force from the American 

people’s representatives in Congress prior to taking military action against targets 

in Syria. In describing the planned military action, he explained that U.S. military 

action in Syria would not be an open-ended intervention and would not involve putting ‘‘boots on the ground,’’ and that instead military action would be designed to 

be limited in duration and scope. In explaining his decision, the President said that 

‘‘while I believe I have the authority to carry out this military action without specific congressional authorization, I know that the country will be stronger if we take 

FOREI-43947 with DISTILLER

79 

this course, and our actions will be even more effective.’’ As the crisis was avoided 

and no military engagement in fact occurred, it is not possible to assess the precise 

nature and scope of notifications and reports that would have been provided consistent with the War Powers Resolution had military action taken place. 

The administration did not present a position on the international law implications of a possible Syrian military engagement in August 2013, although the President made clear in his August 31, 2013, speech that he was prepared to take military action ‘‘without the approval of a United Nations Security Council that, so far, 

has been completely paralyzed and unwilling to hold Assad accountable.’’ Any finalized U.S. position on this question would have been articulated after close consultation with allies as part of our efforts to develop a coalition to pursue military action; 

the resolution of the crisis through Syria’s agreement to disarm its chemical weapons capabilities in accordance with United Nations Security Council Resolution 2118 

obviated the need for these consultations. 

RESPONSES OF STEPHEN W. PRESTON TO QUESTIONS

SUBMITTED BY SENATOR BENJAMIN L. CARDIN

DOD DIRECTIVE 2311.01E REPORTABLE INCIDENTS

Department of Defense Directive Number 2311.01E requires that ‘‘all reportable 

incidents committed by, or against, U.S. personnel’’ be ‘‘investigated thoroughly, and 

where appropriate, remedied by corrective action.’’ This reflects law of war and 

international human rights law requirements to investigate potentially unlawful 

killings. 

Question. What steps are U.S .personnel required to take to investigate reports 

of civilian deaths or potentially unlawful deaths, including from drone strikes, as 

a matter of law and U.S. policy? 

Answer. The United States goes to great lengths to avoid civilian casualties, providing protections as a matter of policy that go well beyond those required by the 

law of armed conflict. Unfortunately, civilian injuries or deaths may occur in U.S. 

counterterrorism operations despite these precautions. Where there is credible information that civilians may have been injured or killed, the United States investigates the matter, drawing on available information to make an informed determination about whether civilians were, in fact, injured or killed. After-action 

reviews are conducted both to ascertain what occurred and to ensure that the 

United States is taking the most effective steps to minimize the risk of noncombatants being injured or killed in future operations. Additionally, longstanding DOD 

policy requires prompt reporting, thorough investigation and, where appropriate, 

corrective action in response to any possible, suspected, or alleged violation of the 

law of war for which there is credible information. 

Question. Does this directive apply to all Department of Defense personnel, 

including those operating under Title 50 covert action authority? 

Answer. DOD personnel are required to conduct themselves consistent with law 

of armed conflict principles at all times, and always remain subject to the War 

Crimes Act of 1996 and, in the case of military members, to the Uniform Code of 

Military Justice. DOD’s long-standing practice is entirely consistent with the classified annex to the joint explanatory statement accompanying the National Defense 

Authorization Act for Fiscal Year 2014. 

Question. How does the executive branch interpret the laws of war with regard 

to the authority to use lethal force and the legal definition of armed conflict? 

Answer. During an armed conflict, the United States views the law of armed conflict as the relevant legal framework governing the conduct of hostilities. Under the 

law of armed conflict, military operations, including the use of lethal force, must 

comply with the principles of necessity, proportionality, distinction, and humanity. 

The use of force, including lethal military force, in prosecuting the armed conflict 

against al-Qaeda, the Taliban, and associated forces is consistent with the law of 

war. All U.S. military operations against al-Qaeda, the Taliban, and associated 

forces are conducted in a manner consistent with Common Article 3 of the Geneva 

Conventions and all other international law applicable in noninternational armed 

conflicts. 

Question. In particular, how does the administration’s claim to be in a global 

armed conflict of indefinite duration comply with the requirement for armed conflict 

that hostilities be between the United States and a group that is sufficiently organized and reach a level of intensity that is distinct from sporadic acts of violence? 

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80 

Answer. The U.S. conflict against al-Qaeda qualifies under international law as 

an armed conflict not of an international character. The U.S. Supreme Court 

adopted this characterization in 2006 in determining that Common Article 3 of the 

Geneva Conventions of 1949 is applicable to detainees captured in the conflict. 

RESPONSE OF MARY MCLEOD TO QUESTION

SUBMITTED BY SENATOR BENJAMIN L. CARDIN

Question. The executive branch has stated that the AUMF authorizes the use of 

force against al-Qaeda and its ‘‘associated forces,’’ defined as organized armed 

groups that have ‘‘entered the fight alongside al-Qaeda’’ and are ‘‘co-belligerent[s] 

with al-Qaeda in hostilities against the United States or its coalition partners.’’ 

♦ What specific organizational features or conduct would lead a group to be classified as an associated force? 

Answer. As indicated in previous U.S. Government statements, including in the 

prepared remarks for this hearing of my colleague, Stephen Preston, the concept of 

an ‘‘associated force’’ is based on the well-established concept of co-belligerency in 

the laws of war. To be an ‘‘associated force’’ of al-Qaeda or the Taliban a group must 

be both (1) an organized, armed group that has entered the fight alongside al-Qaeda 

or the Taliban and (2) a co-belligerent with al-Qaeda or the Taliban in hostilities 

against the United States or its coalition partners. A group that embraces 

al-Qaeda’s ideology without actually joining the fight alongside al-Qaeda is not an 

‘‘associated force,’’ nor is every group that commits or threatens to commit terrorist 

acts against U.S. persons an ‘‘associated force.’’ 

RESPONSE OF PROF. HAROLD HONGJU KOH TO QUESTION

SUBMITTED BY SENATOR BENJAMIN L. CARDIN

Administration officials have reported that U.S. reliance on war authorities 

undercuts our ability to cooperate with crucial partners and allies. In response to 

the 2011 deaths of two German citizens in Waziristan, Germany restricted information-sharing with the U.S. Further, Attorney General Eric Holder said ‘‘A number 

of countries have indicated that they will not cooperate with the United States in 

certain counterterrorism efforts if we intend to use that cooperation in pursuit of 

a military commission prosecution.’’ The administration has also stated that Guantanamo, which is based on AUMF authority, ‘‘plagues our bilateral and multilateral 

relationships, creates friction with governments whose nationals we detain, provides 

cover for regimes whose detention practices we oppose, and provides our enemies 

with a symbol used to foster anti-U.S. sentiments around the world.’’ 

Question. How would a U.S. decision to expand or extend our use of war authorities to combat terrorism affect our global security cooperation? 

Answer. As a former Legal Adviser and Assistant Secretary at the State Department, I am concerned that a U.S. decision to expand or extend our use of war 

authorities to combat terrorism could negatively affect our global security cooperation by undermining the trust and cooperation of critical allies. As I noted on page 

14 of my written statement, ‘‘European courts are showing increased initiative in 

reviewing European cooperation in targeting operations for compliance with domestic and international law,’’ which will likely have a chilling effect on multilateral 

cooperation. History suggests that concerns about legal liability may well reduce our 

allies’ intelligence and security cooperation with the United States. 

In the German example you cite, the claimants argued in a German federal court 

that Germany’s transmission of data allegedly used to conduct a drone strike that 

resulted in the death of a German citizen abroad violated both international criminal law and the German criminal code.1 Apparently, the threat of judicial review 

of drone strikes has already undermined intelligence-sharing with some key European allies who are worried about potential liability under their own domestic laws 

for cooperation. For example, in 2013, an anonymous British Government source 

told The New York Times that British intelligence agencies are increasingly concerned about the possibility of being ‘‘punished by the judiciary for something the 

Executive ordered them to do.’’ 2 In 2013, British officials were sued by a Pakistani 

citizen of the United Kingdom whose father allegedly died in a U.S. drone strike 

abroad on a charge that they had unlawfully shared intelligence used to conduct the 

strike.3 Although the Court of Appeal ultimately declined to hear the case based on 

the act of state doctrine, citing concerns that it would ‘‘necessarily entail a conFOREI-43947 with DISTILLER

81 

demnation of the activities of the United States,’’ 4 British human rights groups condemned the dismissal and may well seek future litigation of similar cases. 

European allies are also becoming concerned about potential liability under international law. In 2013, two human rights organizations filed a complaint with the 

International Criminal Court accusing several NATO member states, the United 

Kingdom, Germany, and Australia, of complicity in war crimes as a result of their 

alleged cooperation with American drone strikes abroad.5 A Dutch NGO filed a similar lawsuit in November 2013, demanding that Dutch intelligence services stop 

using NSA data—which allegedly had not been obtained in accordance with Dutch 

law—to conduct drone strikes in Somalia, and expressed hope that the lawsuit 

would serve as a model for similar lawsuits challenging the legality of intelligence 

sharing with the United States.6 Although the European Court of Human Rights 

has not considered the legality of targeted killing, in 2006, the Council of Europe 

asked the Venice Commission to review the application of the European Convention 

of Human Rights to collaborative intelligence activities. The resulting report 

asserted ‘‘member states have a strong duty to ensure that [the Convention] is 

respected by allied intelligence services operating within their own territory.’’ 7

Recent history suggests that such issues introduce diplomatic tension with allies 

and reduce their intelligence and security cooperation out of concern for avoiding 

legal liability.8

———————— 

End Notes 

1See Louise Osborne, ‘‘Germany Denies Phone Data sent to NSA Used in Drone Attacks,’’ The 

Guardian, Aug. 12, 2013. 2 Ravi Somaiya, ‘‘Drone Strike Lawsuit Raises Concerns on Intelligence Sharing,’’ N.Y. Times, 

Jan. 30, 2013. 3See Noor Khan v. Secretary of State for Foreign and Commonwealth Affairs, England and 

Wales Court of Appeal (Jan. 20, 2014). 4Shaheed Fatima, ‘‘Noor Khan: A Missed Opportunity?’’ Just Security (Jan. 30, 2014, 11:30 

AM). 5Kevin Jon Heller, ‘‘The Reprieve Drone Strike Communication: Jurisdiction,’’ Opinio Juris 

(Feb. 24, 2014, 3:55 PM). 6See New Europe Online, ‘‘Dutch Minister Faces NSA Lawsuit’’ (Jun. 11, 2013) (statement 

of lawyer for the coalition, that ‘‘[w]e based our case on European jurisdiction, so the case could 

simply be copied in other countries.’’). 7 Richard J. Aldrich, ‘‘US-European Intelligence Co-operation on Counter-Terrorism: Low Politics and Compulsion,’’ 11 Br. J. Polit. Int. Relat. 122, 133 (2009). Aldrich, a professor of international security at the University of Warwick who studies transatlantic intelligence cooperation, further noted that in recent years, Europeans are increasingly ‘‘looking over their shoulder 

at the provision of ECHR when working with the Americans whatever the location.’’ Id. at 134. 8For example, in 2008, British officials demanded full details of intelligence-gathering flights 

the United States flew from a base in Cyprus, in case they ‘‘put the U.K. at risk of being 

complicit in unlawful acts.’’ HMG Outlines New Procedures for Requesting Intel Flight Clearances (Apr. 18, 2008). 

Æ 

FOREI-43947 with DISTILLER