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AUTHORIZATION FOR THE USE OF MILITARY

FORCE AND CURRENT TERRORIST THREATS

HEARING

BEFORE THE

COMMITTEE ON FOREIGN AFFAIRS 

HOUSE OF REPRESENTATIVES

ONE HUNDRED FIFTEENTH CONGRESS

FIRST SESSION

JULY 25, 2017

Serial No. 115–62

Printed for the use of the Committee on Foreign Affairs

(

Available via the World Wide Web: http://www.foreignaffairs.house.gov/ or

http://www.gpo.gov/fdsys/

(II)

COMMITTEE ON FOREIGN AFFAIRS 

EDWARD R. ROYCE, California, Chairman 

CHRISTOPHER H. SMITH, New Jersey 

ILEANA ROS-LEHTINEN, Florida 

DANA ROHRABACHER, California 

STEVE CHABOT, Ohio 

JOE WILSON, South Carolina 

MICHAEL T. MCCAUL, Texas 

TED POE, Texas 

DARRELL E. ISSA, California 

TOM MARINO, Pennsylvania 

JEFF DUNCAN, South Carolina 

MO BROOKS, Alabama 

PAUL COOK, California 

SCOTT PERRY, Pennsylvania 

RON DESANTIS, Florida 

MARK MEADOWS, North Carolina 

TED S. YOHO, Florida 

ADAM KINZINGER, Illinois 

LEE M. ZELDIN, New York 

DANIEL M. DONOVAN, JR., New York 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

ANN WAGNER, Missouri 

BRIAN J. MAST, Florida 

FRANCIS ROONEY, Florida 

BRIAN K. FITZPATRICK, Pennsylvania 

THOMAS A. GARRETT, JR., Virginia 

ELIOT L. ENGEL, New York 

BRAD SHERMAN, California 

GREGORY W. MEEKS, New York 

ALBIO SIRES, New Jersey 

GERALD E. CONNOLLY, Virginia 

THEODORE E. DEUTCH, Florida 

KAREN BASS, California 

WILLIAM R. KEATING, Massachusetts 

DAVID N. CICILLINE, Rhode Island 

AMI BERA, California 

LOIS FRANKEL, Florida 

TULSI GABBARD, Hawaii 

JOAQUIN CASTRO, Texas 

ROBIN L. KELLY, Illinois 

BRENDAN F. BOYLE, Pennsylvania 

DINA TITUS, Nevada 

NORMA J. TORRES, California 

BRADLEY SCOTT SCHNEIDER, Illinois 

THOMAS R. SUOZZI, New York 

ADRIANO ESPAILLAT, New York 

TED LIEU, California

AMY PORTER, Chief of Staff THOMAS SHEEHY, Staff Director

JASON STEINBAUM, Democratic Staff Director 

(III)

C O N T E N T S 

Page

WITNESSES 

The Honorable Michael B. Mukasey (former Attorney General of the United 

States) ................................................................................................................... 4

Brigadier General Richard C. Gross, USA, Retired, partner, Fluet Huber 

+ Hoang, PLLC (former legal counsel to the Chairman of the Joint Chiefs 

of Staff) ................................................................................................................. 12

The Honorable Matthew G. Olsen, lecturer on law, Harvard Law School 

(former Director of the National Counterterrorism Center) ............................. 20

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

The Honorable Michael B. Mukasey: Prepared statement ................................... 6

Brigadier General Richard C. Gross, USA, Retired: Prepared statement .......... 15

The Honorable Matthew G. Olsen: Prepared statement ...................................... 22

APPENDIX 

Hearing notice .......................................................................................................... 74

Hearing minutes ...................................................................................................... 75

The Honorable Eliot L. Engel, a Representative in Congress from the State 

of New York: Material submitted for the record ............................................... 77

The Honorable David Cicilline, a Representative in Congress from the State 

of Rhode Island: Material submitted for the record .......................................... 84

The Honorable Gerald E. Connolly, a Representative in Congress from the 

Commonwealth of Virginia: Prepared statement .............................................. 90

Written responses from the Honorable Michael B. Mukasey to questions submitted for the record by the Honorable Brad Sherman, a Representative 

in Congress from the State of California ........................................................... 92

(1)

AUTHORIZATION FOR THE USE OF MILITARY 

FORCE AND CURRENT TERRORIST THREATS 

TUESDAY, JULY 25, 2017

HOUSE OF REPRESENTATIVES,

COMMITTEE ON FOREIGN AFFAIRS,

Washington, DC. 

The committee met, pursuant to notice, at 10:00 a.m., in room 

2172 Rayburn House Office Building, Hon. Edward Royce (chairman of the committee) presiding. 

Chairman ROYCE. This hearing will come to order. 

Today we are going to review a critical national security issue: 

The role of Congress in authorizing the use of military force. We 

have a very distinguished panel to help us do so. 

Our Nation continues to face the threat of radical jihadist terrorism. We have confronted this deadly movement with some measure of success, largely because of the skill, the dedication, and the 

sacrifice of the brave men and women of our armed services. But 

as recent attacks on the United States and our allies—such as the 

United Kingdom—show, the threat remains high. Our response 

must be coordinated, using information and economic tools, too. 

Today, most U.S. combat operations are conducted under the Authorization for the Use of Military Force, or the AUMF, that was 

enacted following the vicious September 11th, 2001 attacks on our 

country. That AUMF has been used against al-Qaeda, the Taliban, 

and what have since become known as ‘‘associated forces.’’ Nearly 

3 years ago, the Obama administration determined that those 

forces include ISIS, which originated as al-Qaeda in Iraq. 

The continued reliance on this legal authority has spurred debate. Some maintain that the 2001 AUMF has been stretched too 

far. Some believe that Congress—most of whose members were not 

here in 2001—should debate and reauthorize our military engagement. We have Members of Congress who have fought these wars, 

whose voices carry strong weight. 

Over the last several years, this committee has conducted more 

than 45 hearings related to conflicts fought under the AUMF and 

we have often met in classified settings with military commanders 

and other officials to review the grave terrorist threat against our 

Nation. I know that our members on both sides of the aisle take 

their responsibilities very seriously. We have had many conversations about the AUMF. 

I believe that the President has the authority under the 2001 

AUMF to defeat and destroy ISIS. Key outside experts and officials 

from the previous administration who have appeared before this 

2

committee have testified to this. But I also believe that a new and 

updated authorization for the use of military force would be ideal. 

The challenge is getting agreement on what exactly it should contain. 

Proposed replacements vary widely. Some would empower the 

Commander in Chief. Others would constrain him. Some would target groups. Others would target ideologies. Some are limited in 

time and place and type of military force. Others are unlimited. 

What I cannot support is any effort to repeal the 2001 AUMF before reaching consensus on these issues. We face determined enemies—al-Qaeda, ISIS, and the Taliban—absolutely committed to 

harming us. There shouldn’t be any signs of wavering in our fight. 

Today’s witnesses will shed light on a few key questions: Does 

the 2001 AUMF provide sufficient legal authority to deal with all 

of today’s threats? Does continuing to rely on that authorization 

create any operational challenges or legal dangers? What should—

or shouldn’t—be a replacement and what should be included in 

that AUMF? 

Authorizing the use of military force is a critical and solemn congressional responsibility. This committee will continue its focus on 

it. 

I will now turn to Ranking Member Engel for his statement. 

Mr. ENGEL. Thank you. Thank you, Mr. Chairman. Thank you 

for calling this hearing. 

To our witnesses, welcome to the Foreign Affairs Committee. We 

are grateful for your time and expertise. 

The role of Congress in authorizing and overseeing the use of 

American military force around the world is really such an important issue. 

Some of us have been trying to advance this debate for the last 

several years. But for the most part, the topic has remained on the 

back burner in the halls of Congress. 

I am glad we are focusing on it today because I think the need 

for congressional leadership is more important now than ever. 

The authorization for the use of military force passed by Congress in 2001, and I was here then, authorized the President to 

take military action against, and I quote, ‘‘those nations, organizations, or persons he determines planned, authorized, committed, or 

aided the terrorist attacks that occurred on September 11th, 2001, 

or harbored such organizations or persons.’’

In the intervening years, it has been used as a legal justification 

for military force in a host of countries around the world. Today, 

it is the legal basis for the fight against ISIS. 

That gives you a sense of just how broadly this authorization has 

been interpreted by successive administrations. 

I was here when we passed this measure nearly 16 years ago, 

and I have to say that none of us envisioned we would still be relying on it nearly two decades later to fight an enemy that didn’t 

even exist when the Twin Towers came down. It has essentially become a blank check. 

Now, whatever you think of President Obama’s foreign policy, his 

administration did come to Congress and ask for an updated authorization. 

3

The current administration has not, and what concerns me now 

is that we have seen escalating military activity on a number of 

fronts—ratcheting up the use of force in Afghanistan, a pledge by 

the administration to ramp up the fight against ISIS, reckless talk 

about expanding the Guantanamo Bay Detention Facility—which 

even President Bush wanted to close—declaring parts of Somalia 

so-called ‘‘areas of active hostilities,’’ which decreased oversight of 

air strikes and increases the risk that American forces could be 

drawn into clan conflicts, and strikes against the Assad regime and 

associated forces. 

Now, I am not saying that we shouldn’t do some of this. I am 

not saying that we should withdraw from these challenges. 

The fight against ISIS is critical to protect the national security 

of the United States and our allies. We have seen too many murdered children and families and must continue to ensure that 

Assad does not use chemical weapons and we have invested too 

much blood and treasure in Afghanistan to stand by and watch it 

fall back into the hands of extremists. 

But we have to ask ourselves: Are we comfortable sending American service members into harm’s way based on a virtually limitless 2001 authorization? If so, what will be the next skirmish supposedly covered by this 16-year-old measure? Extended hostilities 

toward Assad’s forces? Shooting down a Russian MiG? This, to me 

feels like a slippery slope. 

So Congress needs to do its job. We need to do what we should 

have done years ago and pass a new authorization governing the 

conflicts we are engaged in today. And frankly, even though we call 

it an authorization, what we need is a limitation. 

The 2001 authorization is too broad. It needs to be put out to 

pasture and scaled back. We need an authorization tailored to the 

challenges we face today, one that gives the administration the 

tools it needs to ensure our security without dragging us into another war, turning the slippery slope into a dangerous cliff. 

Congress has the power to do this and we need to act. But for 

us to craft a measure with the right boundaries we need to know 

what strategies the United States is pursuing in these global hot 

spots. 

We have U.S. troops on the ground in Syria but we still don’t 

have a clear sense of the end game there or when the troops will 

come home. 

With the conflict in Afghanistan once again heating up and a disturbing spike in civilian casualties, we have yet to learn the Trump 

administration’s approach to America’s longest war. 

And now that we have received the administration’s plan to deal 

with ISIS, I am not clear how it differs at all from the approach 

of the last administration. 

We haven’t heard anything from the administration about how it 

intends to win the peace in all these places once the fighting is 

over. 

I can tell you one thing—slashing funding for diplomacy and development is the wrong approach that the administration is doing. 

Planning a war without planning to secure the peace is a sure path 

toward future conflict and instability and if we don’t have a strong 

4

State Department and USAID, we are taking away the tools to 

build that long-term solution. 

You cannot make foreign policy flying by the seat of your pants, 

especially when it comes to our men and women in uniform. The 

administration should be up here explaining how they plan to deal 

with these conflicts, not careening from crisis to crisis. 

But one way or another, we, Congress, need to act. It is time to 

retire the 2001 AUMF and stop shirking our responsibility. I have 

an approach that I have been working on. Other members have offered their views as well. 

If these approaches aren’t perfect at first, it doesn’t mean we can 

throw up our hands and walk away. It means we need to work 

across the aisle to find the right answer and the right approach. 

So I look forward to hearing from our witnesses. I thank you 

again, Mr. Chairman. I want to hear from our witnesses about the 

right way to grapple with this problem. 

Before I yield back, I would like to ask unanimous consent that 

Representative Barbara Lee be allowed to ask questions after all 

members of the committee have had their chance at this morning’s 

hearing. 

There is strong interest in this issue from the advocacy community. We have received statements for the record from Human 

Rights First, Third Way, and the Constitution Project as well as a 

letter from a coalition of human rights, civil liberties, and faithbased organizations and I would also like to ask unanimous consent to enter these documents into the record. 

Chairman ROYCE. Without objection. 

We are pleased to welcome our colleague, Congresswoman Barbara Lee from California. 

And as to your suggested approach there, Mr. Engel, I quite concur. I think it needs to be bipartisan. 

This morning we are pleased to be joined by a distinguished 

panel that we think will shed light on this. 

The Honorable Michael Mukasey served as the 81st Attorney 

General of the United States and as a U.S. district judge in the 

Southern District of New York. 

We have Brigadier General Richard Gross, partner at the FH&H 

law firm in northern Virginia. Previously General Gross served for 

over 30 years in the U.S. Army. He was the legal counsel to the 

chairman of the Joint Chiefs of Staff. 

We have Mr. Matt Olsen, a lecturer on law at Harvard Law 

School. Previously, Mr. Olsen served as the director of the National 

Counterterrorism Center. 

So without objection, the witnesses’ full prepared statements will 

be made part of the record and all members will have 5 calendar 

days to submit any statements or questions or any extraneous material for the record. 

Judge, would you like to begin? Thank you. 

STATEMENT OF THE HONORABLE MICHAEL B. MUKASEY 

(FORMER ATTORNEY GENERAL OF THE UNITED STATES) 

Judge MUKASEY. Thank you very much, Mr. Chairman. 

Before I make any remarks, I’d like to thank both the chair and 

the ranking member for having invited me and for holding this 

5

hearing, which is, as you both pointed out, enormously important 

and represents a real political commitment to putting this Congress on record as it should be with this country and I really appreciate that. 

I am not going to read my statement. It is in the record. I would 

simply make two additional points that are additional to what I 

said in my prepared remarks, one having to do with the sunset provision, which I endorsed simply because it does provide for this 

added opportunity on every several years to recommit to a course 

of action. 

Obviously, there are authorities that have to remain in force notwithstanding the arrival of a sunset so that, for example, people 

detained in an initial encounter, notwithstanding the sunset there 

would have to a be a separate determination with respect to them. 

It doesn’t become a home free all for them. 

And secondly, with respect to a requirement or statement of 

strategy, which I did not touch on in my remarks but I think that, 

obviously, it is important to have a general idea of what you are 

going to do. But a statement of strategy that tells your adversaries 

what it is you plan to do and how it is you plan to do it I don’t 

think is well taken and, as I believe the ranking member pointed 

out, micro managing any combat is a dangerous thing. So that that 

ought to be taken into account. 

So far as our not having been able to envision being in Afghanistan 16 years on from 9/11, I should point out that when the bombers hit Pearl Harbor, they did not also drop leaflets that said, don’t 

worry, folks, this is all going to be over by 1945. 

You never know when at the beginning of combat how it is going 

to end. That is the nature of a conflict like this. But I don’t think 

that the fact that we don’t precisely know how and when should 

prevent us from opposing to the extent we can what we are up 

against. 

Thank you very much. 

[The prepared statement of Judge Mukasey follows:]

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26424a-1.eps

STATEMENT OF ~ICHAEI, B. MUKASEY 

UOGSE COMMITTEE ON FOREIGN AFFAIRS 

JULY 25, 2!117 

I am grateful to the Chainnan and to the Ranking Member for this opportunity 1o 

address issues surrounding the current authorization for the use of military force (AUMF), 

passed in the immediate allem1ath of the September 11,2001 attacks. Specifically, those 

issues are: whether the existing AUMF gives adequate authority to address current, 

critical operations against Al Qaeda, the Taliban, and ISIS; whether reliance on the 

existing Al.JMF presents problems; whether it is important to update or replace the 

current AUMF and what should be included in or excluded from any new AUMF. 

L Need for an AUMF 

Any discussion of those issues must proceed based on an lmderstanding of why an 

AUMF is necessary in order to protect the country. Is an AUMI' necessary for the 

executive, in the person of the President, to employ force in defense of the nation~ The 

War Powers Resolution of 1973, which became law when Congress overrode President 

Nixon's veto, has been the subject of controversy since it was passed. It requires the 

President to notifY Congress within 48 hours of using the anned forces of the United 

States overseas, and requires that such forces be removed within 60 days, unless that 

period is extended or an AUMF is enacted. Every President since Jimmy Carter has 
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26424a-2.eps

taken the position that the War Powers Resolution is uncons!i!utional as a violation of the 

separation of powers provided for in the Constitution, yet none have challenged it in 

court and Presidents have filed about 130 reports ofthc usc of armed forces abroad as 

required by the law. 

Because of the Armed Forces Resolution, it is arguably necessary to have 1m 

AUMF in place in order to have tfle laws of war rather than the laws of civilian society 

govern interactions between our troops and the enemies they cncmmter on the battlefield. 

The laws of war permit the detention !ll1d interrogation of enemy fighters without the 

need for fomml charges or the conventional warnings to the detainee as to the right to 

remain silent or to counsel. Moreover, detention may continue for the duration of the 

conflict in which the detainee participated, or until the detainee ceases to present a danger 

to the United States. 

The importance of detention is obvious. When someone is captured participating 

in tem>risl activities against the United States, the first requirement is to protect against 

resumption of those activities. Catch and release is not an acceptable formula. The 

importance of interrogating captured terrorists cannot be overstated. Signals intelligence 

is useful, even important. But with increased successful use of encryption and other 

devices of concealment by terrorist networks, reliance human intelligence is vital if we 

arc not to "go dark'' in attempting to track and fmstratc terrorist plans. Further, General 

Michael V. Hayden, fmmer Director ofthc CIA, has likened intelligence activities to 

trying to assemble a jigsaw puzzle. Signals intelligence can provide many pieces, 

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26424a-3.eps

although it is not even clear which of them belong in the puzzle one is attempting to 

assemble; human intelligence can provide a look at the picture on the box, and show 

where all the pieces fit 

H. The Current AUMF 

It has become increasingly apparent, ce1iainly since 200 I if not before, that 

whether we acknowledge it or not, those who adhere to a militant Islamist ideology 

regard themselves as at war with the West in general, and the United States as the 

principal embodiment and defender of Western values. Our constitutional system, on the 

other hand, does not appear to pennit the authorization of force simply against adherents 

to an ideology, but only against particular state or non-state actors who adhere to that 

ideology. That limitation requires us to assure that the AUMF is current as to the identity 

of those state and non-state actors who regard themselves as being at war with us, and 

with whom we are, through no choice of our own, at war as well. 

The current AUMF, passed in the immediate aftermath of the attacks of 

September 11, 2001, authorizes the use of armed force against those persons and entities 

responsible for those attacks, and against Iraq. The authorization of force against Iraq is 

irrelevant; the authorization offorce against those persons and entities responsible lor the 

attacks is likely inadequate and has necessitated the tracing of the lineage of current 

terrorist groups, including ISIS, to either A! Qaeda or the Afghan Taliban, which are 

specified in the current AUMF. ISIS is arguably an offshoot of Al Qacda, but using this 

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26424a-4.eps

tracing of origins- terTorist DNA, as it were- is an inefficient way to detcnnine whether 

a particular group is covered. For example, the current AUMF specifies that it applies to 

the Afghan Taliban, which created the anomaly that Faisal Shahzad, apprehended in 

connection with an attempted bombing in New York's Times Square in 2010, was not 

subject to it because he received support from the Pakistani Tali ban rather than the 

Afghan Ta!iban. As a result, he received the perverse benefit of treatment as an ordinary 

criminal. The same can hold hue for members of Al Shabab or even of AQAP. 

The identification of state and non-state actors in the AUMF should be as broad as 

possible, so as to avoid coverage being lost as the result merely of a change of name by a 

group, for example, hut not so inclusive so as to sweep in stale or non-state actors with 

whom we have no conflict- lraq, for example. 

Another shortcoming of the current AUMF, although it does not appear in text of 

the law, arises from its having been passed more than 15 years ago, before many now in 

Congress were serving, and before many now voting were of age. Quite simply, many 

now in Congress have no stake in the current AUMF. That leaves them free to criticize 

steps taken under the cmrent law even as they deny any responsibility for the law itself. 

That state of affairs, coupled with an electorate that includes many who were not eligible 

to participate politically at the time of enactment of the original AUMF, results in a lack 

of commitment among Members of Congress and the public to decisions vital to this 

country's defense. 

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In addition, it might be useful for an AUMF to address issues of detention so as to 

make it clear that those caph1rcd may be detained for the duration of the struggle against 

the groups to which they belong, or until they no longer present a danger to the United 

States. 

A new AUMF should correct the deficiencies noted above, insofar as the current 

law is both over-inclusive (for example, by including Iraq among its targets), and underinclusive (for example, for not including the Pakistani Taliban). A new statute should 

also embody a legislative recognition that long-term detention of unlawful combatants is 

necessary and appropriate. 

I have not been a fan of sunset provisions in authorizing legislation for 

intelligence gathering measures or other activities relating to our defense in our struggle 

with Islamist militants. However, I recognize the need for periodic adjustment of laws 

that enable us to conduct that defense so as to meet current needs, as well the need for 

periodic recommitment to that defense by our citizens and our legislators. Therefore, I 

would recommend a five-year sunset provision that would assure that adjustment and 

recommitment, even as we acknowledge that the struggle is not likely to end within the 

sunset period. 

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Finally, I believe that if a new AUMF better specified who the enemy is and what 

is necessary someone to quality as an enemy combatant, there is no reason why it should 

not include authorization for the use of force against Americans who travel abroad to 

participate in terrorist activity against the United States. I believe it would be anomalous 

for example, if we were to authorize the use oflcthal force against a terrorist leader 

abroad, but refrain simply because that leader is in the company of an American who 

travelled abroad to help him. The Supreme Court has already held, more than once, that 

Americans who join our foreign enemies have no claim to protection superior to the 

protection given those foreign enemies. Our legislation should recognize that. 

6 
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Chairman ROYCE. Thank you, your Honor. 

General. 

STATEMENT OF BRIGADIER GENERAL RICHARD C. GROSS, 

USA, RETIRED, PARTNER, FLUET HUBER + HOANG, PLLC 

(FORMER LEGAL COUNSEL TO THE CHAIRMAN OF THE 

JOINT CHIEFS OF STAFF) 

General GROSS. Thank you, Chairman Royce. Thank you, Ranking Member Engel and members of the committee. I am very grateful for the opportunity to——

Chairman ROYCE. Make sure, General, that you’ve got that red 

button on. There we go. 

General GROSS. It was. 

Chairman ROYCE. And maybe pull it a little closer would be the 

other suggestion. 

General GROSS. Yes, sir. 

Again, it is a privilege to appear before the committee today. I 

am purposely going to keep my remarks brief. 

What I hope to offer the committee is a military, legal practitioner’s view of AUMFs and in particular the 2001. 

As you mentioned, I retired after over 30 years in the U.S. Army, 

both as an infantry officer and as a judge advocate. I was the legal 

advisor to multiple joint and special operations task forces with 

multiple deployments to Afghanistan and Iraq. 

I was also the legal advisor for the Joint Special Operations 

Command, NATO ISAF, U.S. Forces Afghanistan and U.S. Central 

Command, and in my final 4 years I was General Dempsey’s legal 

advisor on the Joint Staff when he was the chairman of the Joint 

Chiefs of Staff. 

I worked closely when I was on the Joint Staff with the DoD general counsel, the National Security Council legal staff, and the 

interagency lawyers groups on national security law issues to include counterterrorism operations. 

I dealt with the 2001 and 2002 AUMFs multiple countless times 

over those 4 years both in the context of specific targeting operations as well as more general discussions on the scope of the 

AUMF and proposals to revise or amend it. Many of those discussions actually took place here in Congress in both the Senate and 

the House in briefings, hearings, and informal discussions with 

members and congressional staff. 

My views on the 2001 AUMF have not changed since I retired 

from the military. I continue to feel the 2001 AUMF is adequate. 

It contains adequate legal authority for the use of military force 

against the Islamic State of Iraq and Syria, which was a view first 

adopted by the previous administration and I believe to be the position of the current administration. 

I recognize, however, that reasonable minds disagree on this 

point and many have voiced criticisms of the decision to rely on the 

2001 AUMF as the domestic legal authority to conduct military operations against ISIS. 

While I believe the 2001 AUMF is adequate to address the ISIS 

threat, I also believe it would be prudent for Congress to enact the 

new AUMF to specifically address the threat of ISIS and other terrorist groups for a variety of reasons. 

13

First, a new AUMF would reflect the current will of the American people as exercised through their elected leaders regarding our 

ongoing operations against ISIS, al-Qaeda, the Taliban, and other 

terrorist groups. 

A new AUMF would also define the current scope and extent of 

our military’s mission against terrorist organizations, and finally, 

a new AUMF would signal congressional support to the U.S. armed 

forces. 

As the committee considers what provisions a new AUMF might 

contain, please allow me to give you my perspective as a practitioner. 

When I review an AUMF proposal, I think of it in terms of the 

mission—who, what, when, where, and how. Against whom are we 

using force, what force is authorized, and for how long? Where is 

the use of force authorized? Finally, how are we authorized to use 

that force? Are there restraints or restrictions? 

To be clear, I do not think it is helpful nor desirable to have all 

of these elements in an AUMF, a point I will expound upon more 

in a moment. 

With these elements, there is necessarily a trade-off between 

transparency and certainty, on one hand, and flexibility for commanders on the other. 

The more descriptive or proscriptive a provision of AUMF is, the 

less flexibility it may afford the President and military commanders to pursue a dynamic ever-changing enemy terrorist group. 

I would urge the committee to carefully consider that balance as 

it takes up the AUMF proposals. 

The most critical provision of an AUMF is the who—identifying 

the enemy against whom force may be used. Our current enemies 

do not wear a uniform, hide among civilian populations, and operate in a dynamic, disperse network of clandestine cells. This makes 

defining them challenging. 

Given that, there should be some flexibility in the AUMF to account for an ever-changing and expansive nature of the enemy 

while also defining with affiliates and co-belligerents rise to the 

level of associated forces. 

The what element defines the scope of the authorized force. The 

2001 AUMF authorized the President to use all necessary and appropriate force. This same language is also used in the Senate 

Joint Resolution introduced by Senators Flake and Kaine. 

This particular language provides maximum flexibility to commanders. Other elements—when, where, and how—often appear in 

AUMF proposals, but these elements may create unintended consequences. I will discuss each of these in turn. 

The when or for how long element usually arises in the form of 

a sunset provision which results in the automatic termination of 

the AUMF after a set period of time. These are generally included 

as a forcing function, a means of ensuring periodic review of the 

authority granted by Congress. 

However, sunset provisions may also create legal uncertainty for 

the President and military, particularly as the expiration date approaches without action to extend or reauthorize the AUMF. 

14

Sunset provisions could also be interpreted by both adversaries 

and coalition partners as a lack of resolve and could potentially embolden adversaries to wait this out. 

The where element is typically reflected as a geographic limitation. This provides certainty and transparency but may not afford 

the President and military commanders the flexibility necessary to 

pursue the enemy outside the named countries. 

Terrorist groups often seek safe haven in ungoverned and under 

governed spaces and publically announcing geographic limits in an 

AUMF may encourage adversaries to seek those countries out. 

Finally, the how element, which occasionally appears in some 

proposals, may be the most problematic, in my opinion. These are 

provisions that attempt to specifically define how the military will 

be used, a role normally reserved for the President and the military 

commanders. 

For example, some proposals seek to prohibit combat roles or 

boots on the ground, and one past proposal included a prohibition 

against the use of the military in enduring offensive ground combat 

operations. 

Provisions like these may significantly restrict the flexibility of 

the President and military commanders to adapt to a constantly 

changing dynamic enemy. 

I want to mention two final points. First, one should consider the 

AUMF in the broader context of other sources of law and policy. 

There are other sources of law and authority that act as restraints 

on the use of military force to include international law, domestic 

law, U.S. policy and the orders of the Commander in Chief and 

combatant commanders. 

Second, I want to assure the committee that before any military 

force is used, there is a robust review process in place. 

Up and down the military chain of command, senior commanders 

advised by trained and experienced staffs—including intelligence 

officers, operations officers, and judge advocates—review operations 

for compliance with the applicable law and policy, and for consistency with the orders of superiors in the chain of command. 

In counterterrorism operations, the AUMF is central to that robust review process. During my 30 years in the military it was my 

experience that commanders and their staffs worked very hard to 

ensure that all operations were conducted morally, legally, and 

ethically, and I have no doubt they will continue to do so in the 

future. 

I look forward to your questions. Thank you. 

[The prepared statement of General Gross follows:]

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Testimony of Brigadier General Richard C. Gross, US Army (Retired) 

Partner, Fluet Huber+ Hoang PLLC, and Former Legal Counsel to the Chairman of the Joint 

Chiefs of Staff 

"Authorization for the Use of Military Force and Current Terrorist Threats" 

Foreign Affairs Committee, U.S. House of Representatives 

July 25, 2017 

Chairman Royce, Ranking Member Engel, and members of the Committee, thank you for 

inviting me to testify today about authorizations for the use of military force against terrorist 

groups. It's a privilege for me to appear before this distinguished committee. 

I am purposely keeping my remarks brief today. What I hope to offer the Committee is a 

military legal practitioner's view on the Authorization for the Use of Military Force (AUMF). 

I retired in December 2015 after serving over 30 years in the United States Army, both as an 

Infantry Officer and later as a Judge Advocate. Following the tragic events of 9/11, I served as 

the legal advisor to several joint and special operations task forces, deploying multiple times to 

Iraq and Afghanistan. I also served as the legal advisor for the Joint Special Operations 

Command, the NATO International Security Assistance Force (ISAF)/U.S. Forces-Afghanistan, 

and U.S. Central Command. During my final four years of active duty, I was the Legal Counsel to 

the Chairman of the Joint Chiefs of Staff, General Martin Dempsey. 

During my final assignment in the Pentagon, I worked closely with the Department of Defense 

General Counsel, the National Security Council Staff Legal Advisor, and the interagency lawyers 

group on national security law issues, to include counterterrorism operations. I dealt with the 

2001 and 2002 AUMFs on countless occasions during those 4 years, both in the context of 

specific targeting operations and in more general discussions on the scope of the AUMF and 

proposals to revise or amend it. Some of those latter discussions took place in the House and 
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the Senate, in briefings, hearings, and informal discussions with members and Congressional 

staff. 

My views on the 2001 AUMF have not changed since I retired from the military. I continue to 

believe the 2001 AUMF contains adequate legal authority for the use of military force against 

the Islamic State of Iraq and Syria (ISIS), a view first adopted by the previous administration that 

also appears to be the position of the current administration. I recognize, however, that 

reasonable minds disagree on this point, with some voicing criticism of the decision to rely on 

the 2001 AUMF as the domestic legal authority to conduct military operations against ISIS. 

While I believe the 2001 AUMF is adequate to address the current ISIS threat, I also believe it 

would be prudent for Congress to enact a new AUMF to specifically address the threat of ISIS 

and other terrorist groups, for a variety of reasons. First, a new AUMF would reflect the current 

will of the American people, as exercised through their elected leaders, regarding our ongoing 

operations against ISIS, al Qaeda (AQ), the Taliban, and other terrorist groups. A new AUMF 

would also define the current scope and extent of our military's mission against terrorist 

organizations. Finally, a new AUMF would send an important signal of Congressional support to 

the U.S. Armed Forces. 

As the Committee considers what provisions a new AUMF might contain, please allow me to 

give you my perspective as a military legal practitioner. When I review an AUMF proposal, I 

think of it in terms of the mission: who, what, when, where, and how. Against whom are we 

using force? What force is authorized, and for how long? Where is the use of force authorized? 

Finally, how are we authorized to use that force-are there restrictions or constraints? To be 

clear, I do not think it is helpful nor desirable to have all of these elements in an AUMF, a point I 

will expound upon more in a moment. 

With these elements, there is necessarily a trade-off between transparency and certainty on 

one hand and flexibility on the other. The more descriptive (or proscriptive) a provision of the 
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AUMF is, the less flexibility it may afford the President and military commanders to pursue a 

dynamic, ever-changing enemy terrorist group. I would urge the Committee to carefully 

consider that balance as it takes up AUMF proposals. 

The most critical provision of an AUMF is the "Who"-identifying the enemy against whom 

force may be used. Our current enemies do not wear a uniform, hide among civilian 

populations, and operate in dynamic, dispersed networks of clandestine cells. This makes 

defining them, in a static AUMF, challenging. Given that, there should be some flexibility in the 

AUMF to account for the ever-changing and expansive nature of this enemy, while also defining 

which affiliates and co-belligerents rise to the level of "associated forces" and therefore fall 

under the scope of the AUMF. 

The "What" element defines the scope of the authorized force. The 2001 AUMF authorized the 

President to use "all necessary and appropriate force"; this same language is also used in the 

Senate Joint Resolution introduced by Senators Flake and Kaine. This particular language 

provides the maximum flexibility to the President and military commanders. 

Other elements-When, Where, and How-often appear in AUMF proposals, but these 

elements may create unintended consequences. I'll discuss each of these in turn. 

The "When" (or "for how long") element usually arises in the form of a sunset provision which 

results in the automatic termination of the AUMF after a set period of time. These are generally 

included as a forcing function: a means of ensuring periodic review of the authority granted by 

Congress. However, sunset provisions may also create legal uncertainty for the President and 

military, particularly as the expiration date approaches without action to extend or reauthorize 

the AUMF. Sunset provisions could also be interpreted by both adversaries and coalition 

partners as a lack of resolve, and could potentially embolden adversaries to "wait us out." 
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The "Where" element is typically reflected as a geographic limitation. This provides certainty 

and transparency, but may not afford the President and military commanders the flexibility 

necessary to pursue the enemy outside the named countries. Terrorist groups often seek safe 

haven in ungoverned and under-governed spaces, and publicly announcing geographic limits in 

an AUMF may encourage adversaries to seek out those countries where the AUMF does not 

authorize military force. 

Finally, the "How" element, which occasionally appears in some proposals, may be the most 

problematic. These are provisions that attempt to specifically define how the military will be 

used, a role normally reserved for the President and military commanders. For example, some 

proposals seek to prohibit combat roles or "boots on the ground"; one past proposal included a 

prohibition against the use of the United States Armed Forces in "enduring offensive ground 

combat operations." Provisions like these may significantly restrict the flexibility of the 

President and military commanders to adapt to a constantly changing, dynamic enemy. 

I want to mention two final points. First, one should consider the AUMF in the broader context 

of other sources of law and policy-an AUMF is not the final word when it comes to military 

operations. There are many other sources of law and authority that act as restraints on the use 

of military force, to include international law (the U.N. Charter, treaties, the Law of Armed 

Conflict, etc.); other domestic law; U.S. policy; and the orders of the Commander-in-Chief, the 

Secretary of Defense, and Combatant Commanders. 

Second, I want to assure the Committee that, before any military force is used, there is a robust 

review process in place. Up and down the military chain of command, senior commanders, 

advised by trained and experienced staffs, including intelligence officers, operations officers, 

and judge advocates, review operations for compliance with applicable U.S. domestic and 

international law, including the law of armed conflict, and for consistency with the policies and 

orders of superiors in the military chain of command. In counterterrorism operations, the 

AUMF is central to that robust review process. During my 30 years in the military, it was my 
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experience that commanders and their staffs worked very hard to ensure that all operations 

were conducted morally, legally, and ethically, and I have no doubt they will continue to do so. 

I look forward to your questions. Thank you. 
20

Chairman ROYCE. Yes, Mr. Olsen, please. 

STATEMENT OF THE HONORABLE MATTHEW G. OLSEN, LECTURER ON LAW, HARVARD LAW SCHOOL (FORMER DIRECTOR OF THE NATIONAL COUNTERTERRORISM CENTER) 

Mr. OLSEN. Thank you, Chairman Royce and Ranking Member 

Engel and members of the committee. I am honored to be here this 

morning to address this very important issue. 

I am also pleased to join with such distinguished witnesses, 

Judge Mukasey and General Gross, this morning. 

I approach these issues from the perspective of my two decades 

working as a government official tackling national security and intelligence and law enforcement matters under both Republican and 

Democratic administrations. 

From this vantage point, my bottom line up front is that the importance of updating and clarifying the 2001 AUMF is quite clear. 

By renewing this authority in light of the current terrorism landscape, Congress can provide its explicit authority for our counterterrorism efforts while at the same time exercising that responsible 

oversight that is consistent with Congress’ role under the Constitution. 

So my views are based on my time in the intelligence community 

as well as my time at the Department of Justice. 

I most recently served as the director of the National Counterterrorism Center, which is an agency that provides intelligence analysis and the integration of intelligence about counterterrorism. I 

was responsible for briefing the President and the National Security Council as well as the strategic operational planning of counterterrorism activities. 

I also served in national security leadership roles at the Department of Justice, including having the privilege of working under 

Judge Mukasey for a period of time at the Justice Department. 

So let me begin briefly by emphasizing the dynamic and persistent threat that we face from terrorist groups. In short, the 

range of threats that we face from terrorists today is more diverse, 

more fragmented, and more geographically expansive than at any 

time in recent history. 

The so-called Islamic State, or ISIS, presents the most urgent 

threat to us. Its sanctuary in Syria and Iraq, while significantly diminished recently by the U.S.-led military coalition, has enabled 

that group to regroup and train and then execute external attacks, 

including more recently in Europe. 

The rise of ISIS more generally reflects the transformation of the 

jihadist threat over the past several years. ISIS and other groups 

have taken advantage of unrest in the region to expand their reach 

and establish safe havens. As a result the terrorism threat now 

comes from a decentralized array of networks and organizations. 

They include al-Qaeda, al-Qaeda’s affiliates, and then a range of 

violent jihadist groups that share al-Qaeda’s ideology. 

So it is against this backdrop of this very evolving and persistent 

terrorist threat that I think it is clear that the 2001 AUMF is illsuited to today’s threats. It was enacted just days after 9/11. It provided the authority to use all necessary and appropriate force 

against those responsible for the 9/11 attacks. 

21

Years later, the terrorist groups threatening the United States 

have changed but the 2001 AUMF remains the foundational authority for the use of force. 

The AUMF has now been invoked over 37 times in at least 14 

different nations and against more than half a dozen terrorist 

groups. It is unlikely, as you said, Ranking Member Engel, that 

Members of Congress who voted for the 2001 AUMF would have 

contemplated that the law would be used in this manner today. 

This lack of clarity about the scope and applicability of the 2001 

AUMF in today’s threat landscape has the potential to undermine 

our efforts to use force against terrorist groups that evolve or 

emerge and have emerged over the past 16 years. 

At the same time, it is my view that the AUMF’s lack of time 

limits and reporting requirements and the open-ended definition of 

who is covered by the AUMF have undermined Congress’ ability to 

conduct effective oversight of the use of military force. 

So in updating the AUMF to match the current threat environment, I would suggest, respectfully, that Congress consider several 

issues, and I will touch on these very briefly. 

First, Congress should start by specifying which groups are covered and for what purpose. The AUMF-based authorities are needed for armed conflicts against al-Qaeda, the Taliban, and ISIS but 

these authorities are not needed for groups that don’t pose a similar threat. That is one. 

Two, Congress should set a time limit on the AUMF to ensure 

continued congressional approval, engagement, and oversight as 

these conflicts evolve. 

I believe that a sunset signals to our partners and our adversaries that the United States is committed to use the force required 

to combat the current threats we face even as we sustain the fight 

for as long as it takes. 

And then third, Congress should include reporting requirements 

for the executive branch. The regular and detailed reporting to 

Congress and therefore to the public about the war effort is vital 

to our democracy and it is necessary for Congress to fulfil its oversight obligations and thereby strengthens the legitimacy of the mission overall. 

In conclusion, Mr. Chairman, the terrorist threat facing the Nation is persistent, it is complex, and it is evolving. I believe that 

Congress should update the increasingly outdated 2001 AUMF to 

explicitly provide a mandate for the use of force but subject to appropriate congressional oversight and constraints. 

I believe that fulfilling this responsibility will show our troops 

that Congress is behind them, it will assure our allies and partners 

that the United States is committed to human rights and the rule 

of law, and it will demonstrate to our enemies that we are committed to their defeat. 

I look forward to your questions. 

[The prepared statement of Mr. Olsen follows:]

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House Foreign Affairs Committee Hearing 

on 

"Authorization for the Use of Military Force and Current Terrorist Threats" 

july 25, 2017 

Statement ofthe Honorable Matthew G. Olsen 

Lecturer on Law, Harvard Law School 

Former Director of the National Counterterrorism Center 

Thank you, Chairn1an Royce, Ranking Member Engel, and distinguished members of the 

committee. I am honored to have this opportunity to appear before you to address the critical 

issue or authorizing the use or military force in the conte"t or the evolving terrorist threat. 

I am pleased to participate in the hearing today along with such distinguished witnesses, 

fonner Attorney Gcneml Michael Mukascy and former Legal Counsel to the Chairman of the 

Joint Chiefs of Staff Richard Gross. I was privileged to work for Judge Mukasey at the Justice 

Department when he was the Attorney General. 

I approach these issues from the perspective of my years of service as a national security 

lawyer and counterterTorism official in the executive branch. From this vantage point, the 

importance of updating and clarifying the 2001 Authorization for Use of Military Force 

("AUMF") is clear. By renewing this authmity in light of the ctment terrorism landscape, 

Congress can provide explicit authmity for our countertenorism efforts, while exercising 

responsible oversight consistent with Congress's role under the Constitution. 

I dedicated more than two decades to public service as a govenunent attorney and official 

on a range of national security, intelligence, and law enforcement matters under both Republican 

and Democratic administrations. Most recently, I was the Director or the National 

Countertenorism Center, an agency responsible for operating as the government's hub for 

terrorism intelligence and analysis. In this capacity, I was responsible for briefing the President 

and National Security Council on terrorism threats and trends and for the strategic operational 

planning of counterterrorism activities to help ensure we implemented a whole-of-government 

approach to our counterterrorism efforts. 

Prior to NCTC, I serYed as the General Counsel of the National Security Agency, where I 

was the agency's chief legal officer. At the Department of Justice, I held several leadership 

positions, including Acting Assistant Attomey General and Deputy Assistant Attorney General 

for National Security. Under President Obama, I served as Special Counselor to the Attorney 

General and led the review or detainees held at Guantanamo Bay. During Director Robert 

Mueller's tenure at the FBI, I serYed as his Special Counsel. I also worked as a federal 

prosecutor in Washington, D.C., for over a decade, and as a Trial Attorney in the Justice 

Department's Civil Rights Division. 
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I will begin by describing the current threat landscape and why continued reliance on the 

2001 Authorization for Usc of Military Force ("AUMF') for dealing with today's threats is 

problematic. Next, I will address the importance of carefully crafting any new AUMF to ensure 

that the gmwnment has sufficient authority and operational tlexibility to achieve the mission 

without ceding Congress' power over declaring and overseeing war, and without eroding 

American values. Finally, I will offer some thoughts on how Congress can draft a new AUMF to 

achieve these ends. 

Today's Threat Landscape 

The need to update and clarify the 2001 AUMF stems directly from the dynamic and 

persistent nature of terrorism threats to lhe United Slates. Over lhe past several years, lhe range 

of threats vvc face from terrorist groups has become increasingly diverse, fragmented and 

geographically expansive. The continuing appeal of the jihadist narrative and the adaptive nature 

of these groups have led lo lhe emergence of new threats and pose substantial challenges lo lhe 

efforts of our counterterrorism community. 

By any measure, the so-called Islamic State or ISIS presents the most urgent threat to our 

security today. The group has exploited the contlict in Syria and sectarian tensions in Iraq to 

entrench itself in both countries. Using both terTorist ar1d insurgent tactics, the gronp has seized 

and is governing territory, while at the same time securing the allegiance of allied tenurist 

groups across the Middle East and North Africa. ISIS's sanctuary-while significanlly 

diminished under pressure from the U.S.-led military coalition-has enabled the group to recruit, 

train, and e"ecule e"lernal attacks, as vve have seen in Europe, and lo incite assailants around the 

world. ISIS has recruited thousands of militants to join its fight in the region and uses ils 

propaganda campaign lo radicalize others in the Wesl. And al lhe same lime, we continue lo 

face an enduring threat from al-Qaida and its various affiliates, who maintain the inlenl and 

capacity to carry out attacks in the West. 

More broadly, the rise of ISIS should be viewed as a manifestation of the transformation 

of the global jihadist movement over the past several years. We have seen this movement 

diversify and expand in the aftermath of the upheaval and political chaos in the Arab world since 

2010. Instability ar1d unrest in large parts of the Middle East and North Africa have led to a lack 

of security, border control, and effective governance. In the last few years, four states-Iraq, 

Syria, Libya, a11d Yemen-have effectively collapsed. ISIS ar1d other tenorist groups exploit 

these conditions to expar1d their reach a11d establish safe havens. 

As a result, the threat now comes from a decentralized arTay of organizations and 

networks. Specifically, al-Qaida core continues to support attacking the West and is vying vvith 

ISIS lobe the rccogniLcd leader of the global jihad. There is no doubllhat sustained U.S. 

counter1errorism pressure has led to the steady elimination of al-Qaida's senior leaders and 

limited the group's ability to operate, lrain, and recruit operatives. Allhe same time, the core 

leadership of al-Qaida continues to wield influence over affiliated and allied groups, such as 

Yemen-based al-Qaida in the Arabian Peninsula ("AQAP"). Indeed, on three occasions over the 

past several years, AQAP has sought to bring down an airliner bound for the United States. And 

2 
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there is reason to believe it still harbors the intent and substantial capability to carry out such a 

plot. 

In Syria, veteran al-Qaida fighters have traveled from Pakistan to take advantage of the 

pennissive operating environment and access to foreign fighters. They are focused on plotting 

agaimt the West. AI-Shabaab also maintains a safe haven in Somalia and threatens U.S. interests 

in the region, asserting the aim of creating a caliphate across East Africa. The group has 

reportedly increased its recruitment in Kenya and aims to destabilize parts of Kenya. Finally, alQaida in the Islamic Maghreb ("AQIM"), its splinter groups, and Boko Haram-now an official 

branch of ISIS-continue to maintain their base of operations in North and West Africa and have 

demonstrated sustained capabilities to carry out deadly attacks against civilian targets. 

The Need to Update the 2001 AUMF 

Against this backdrop, it is dear that the 2001 AUMF is not well-suited to today's 

evolving terrorist threats. Enacted just days after the nation was attacked on September II, the 

200 I A UMF provided the president the authority to use "all necessary and appropriate force" 

agaimt those responsible for the attacks.' As Congress and the White House were negotiating 

the scope of this authori7ation, smoke was still rising from the ashes of the Pentagon, the number 

of dead was still being tallied, and fears of another attack were palpable 2 Even under these 

circumstances, Congress rejected calls for an open-ended AUMF that would have given the 

President untethered authority "to deter and pre-empt any future acts of terrorism or aggression 

agaimt the United States."' The 60-word authorization that Congress ultimately passed provided 

authority for using military force only against the perpetrators of 9/11 for the specific purpose of 

preventing those perpetrators from allacking the country again. 

Almost 16 years later, the 2001 AUMF has now been invoked over 37 times in at least 14 

different nations against more than half a dozen terrorist groups 4 It is unlikely that members of 

Congress who voted for the 2001 AUMF would have contemplated that the law would authorize 

1 Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224, 224 (2001) 

(codified at 50 U.S.C. § 1541 note), available at 

hlw;;.;L:;~_l.lc\' .congrs_;;~_O]~l)awsLpubl4(~LA \Y:::lO.lm!!JJ.::LQpill: ('That the President is 

authorized to use all necessary and appropriate force against those nations, organizations, or 

persons he detennines planned, authoriLed, commilled, 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."). 2 For a detailed accounting of the circumstances of the drafting and vote on the 2001 A UMF sec 

Gregory Johnsen, 60 Words and a War Wi!houl End: The Unfold S!nry of !he Mosl Dangerous 

Sentence in U.S. History, BuzzFeed, Jan. 16, 2014, available at 

.IJJ!l1B.JL'0:\0J!::J:mzzfq_.;;.cL<:l!Dligr,~g<:>cyQk:hn5cnL6.0::lc<:>n1"-::Jn4 :it-_>Ynr:.:~iili.'lm::c nd .-Jh>::::tJDIDJ.9.:SJm:Y_: 

4 Congressional Research Service, May 11, 2016 Memorandum, available at 

3 
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the current war with ISIS. And two thirds of the House and three quarters of the Senate were not 

in office when the 2001 AUMF was passed5 

The legal and policy reasons for applying the 200 I A UMF to "associated forces" of alQaida and the Tali ban and to ISIS haYe been well-documented.'' In my experience, the executiYe 

branch has approached the decision to apply the 2001 AUMF with deliberate care and 

seriousness. Such a determination has been made at the most senior levels of the govemment, 

following factual reviews based on input from the intelligence community. 

In particular, the decision to apply the 2001 AUMF to ISIS was based largely on the 

group's historic roots and close connection to al-Qaida. The government fmther determined that 

the more recent rirt in leadership between ISIS and al-Qaida did not undennine this conclusion. 

However, this decision has been viewed skeptically by some, and there have been good faith 

disagreements about the application of the 2001 AUMF to ISIS. This controversy has 

highlighted the fact that, as terrorist groups threatening the United Stales continue to splinter, 

eYolve, and emerge, it will become increasingly difficult to encompass them under the 2001 

A UMF. The legal and policy arguments for applying the 200 I AUMF to groups that threaten the 

United States aTe not "infinitely elastic."' 

Indeed, the language in the 2001 AUMF requiring a nexus to the 9/11 attacks may unduly 

constrain the executiye's ability to use military force in certain circumstances and invite legal 

challenges, including to the scope or detention authority, that complicate our counterterrorism 

efforts-' At the same time, the 2001 AUMF's lack of time limits, open-ended definition of who 

is covered, and omission or reporting requirements have undermined Congress's ability to 

conduct responsible oversight of the executive in its use military force against terrorist groups. 

The Founders wisely entrusted the legislative branch with the power to declare war. 

They recogni7cd that war authorities confer extraordinary powers on the president and that war 

should not be entered into lightly nor conducted secretly. But Congress' duties do not end with 

s See Senator Jeff Rake Press Release, June 20, 2017, available at 

See Report on the Legal and Policy Frameworks Guiding the United States' Use of Military 

Force and Related Operations, December 2016, available at 

hllps: //www .j ustsccuri l y .org/wpconlent/uploads/20 16/ 12/f ramcvv ork.Rcport_Final. pdf; 

see also Stephen Preston, The Legal Framework for the United States' Usc of Military Force 

Since 9111, Remarks at the American Society for International Law, Washington, DC, April10, 

2015, available at https://www.defense.gov/News/Speeches/Specch-View/ Articlc/606662/. 7 Is it Time for Congress to Pass an !SIS-Specific AUMF1, The Heritage Foundation, May I, 

2017, available at http://www .heritage.org/def ense/event/it-time-congress-pass-isis-specificaumf. 

'See Charles Stimson & Hugh Danilak, The Case Law Conceming the 2001 Authorization for 

Use of Military Force and Its Application to ISIS, The Heritage Foundation, available at 

http://www .heri tage.org/derense/reportlthe-case-law-conceming-the-2001-authoriLation-usemilitary-force-and-its. 

4 
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authori?ing war, whether through a formal declaration of war or the passage of an A UMF. 

Congress is also charged with overseeing the executive branch and making funding decisions. 

Regular oversight of military activities, including monitoring any changes on the ground and the 

adequacy of legal authorities, is required for Congress to fully discharge its constitutional dutics 9 

In light of changed circumstances, and with the benefit of 16 years of experience, 

Congress should reassess and clarify the authorities the President needs to defeat the teJTotist 

groups we face today and the checks that are necessary to maintain an appropriate balance 

between the executive and legislative branches of our govemment. 

Drafting an AUMF for Today's Threats 

In drafting our Constitution, the Framers entrusted Congress with the decision to send the 

country into war for good reason. As James Madison famously wrote to Thomas Jefferson in 

1798, "[t]hc constitution supposes, what the History of all Govcnu.nents demonstrates, thal the 

Executive is the branch of power most interested in war, and most prone to it. It has accordingly 

with studied care vested the question of war to the Legislature." 

In exercising its constitutional responsibility, Congress should begin by conducting a 

careful assessment of the extent of military force necessary ar1d appropriate for addressing 

today's terrorist threats. The govemment has a range of powerful and effective tools for fighting 

teJTorism. Military force is certainly one of those tools, but il is nol lhe right tool for all national 

security threats. Nor is military force, when it is needed, sufficient on its own. As Defense 

Secretary James Mallis recenlly testified before the Senate, "[o]ur recent experiences have 

reminded us thal we should engage more using all components of our national power, and use 

military force only when it is in the vital interest of the United Stales, when other elements of 

national power have been insufficient in protecting our national interests, and generally as a last 

resort. ~' 10 

In updating lhc authority for using military force against certain lerrorisl groups, 

Congress should assess key issues such as whom force should be authori?ed against, for what 

purpose, where, for how long, and subject to what reporting and transparency requirements. 

Congress should draft any new authorization to ret1ect Congress's intent with respect to such 

issues. Clear drafting and thoughtful limitations are critical to ensuring the operational 

effectiveness of the authmity and to prevent the authorization from being used beyond the scope 

of Congress' intent or in ways that undermine American values or our long-term security 

interests. 

Key issues lhat Congress should consider in drafting a new AUMF include: 

9 Deciding to Use Force Abroad: War Powers in a System of Checks <md Balances, The 

Constitution Project, available at 

Nomination Hearing Statement for James N. Mattis to be Secretary of Defense, Senate Armed 

Services Commillee, Jan. 12, 2017, available at hllps://www.an.nedservices.senate.gov/hearings/ 17-01-12 -confirmation-hearing_ -mattis. 

5 
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Whom Can Force Be Used Against 

Armed contlicts with non-state entities like ISIS arc more difficult to define than 

traditional wars against nations. The failure to carefully delineate the non-state entities subject to 

a statutory grant of authority for the use of force may lead to uncertainty and the kind of 

controversies that we have seen under the 200 I A UMF. This undem1ines Congress' role in 

determining whom the country goes to war against and makes it more likely that wmtime 

authorities to kill and detain will be used beyond their appropriate scope. Congress should name 

the specific groups il is authorizing military force against in such a way lhal is precise enough lo 

prevent unintended expansion of the authority, while also retaining sufficient t1exibility to 

encompass groups, such as ISIS, that may go by more than one name, or may in the future 

rebrand themselves under another name. 

For example, in authorizing force against "associated forces,'' Congress should dearly 

define the term to allow the executive branch to usc military force against groups that join ISIS 

in the armed contlict against the United States. The definition of the term should be tailored to 

the requirements of the cun·ent cont1ict and include only those groups that have entered the fight 

as a party to the contlict with the United States, not groups that merely express allegiance to ISIS 

or could hypothetically enter the fight in the future. Defining "associated forces" too broadly 

would allow the AUMF to be expanded beyond congressional intent, and could allow for 

detention and targeting authorities beyond what is permitted under the laws of war.u 

In this context, it is critical to remember that preemptively authorizing the president to 

use force against currently unknown groups is generally nol necessary for our security. Under 

Article II of the Constitution, the president has independent authority to use military force to 

defend the nation from attack. If Congress believes that a more expansive use of military force is 

needed, it can, and should, provide the executive with the appropriate authorization at that time 

based on the particulars of any new threat. In addition, law enforcement and other measures 

short of war may be used at all times to protect the nation from newly emerging threats. 

Specifying the Purposes for Authorizing Militarv Force 

Terrorism is a persistent threat that requires an active government response at all times. 

Wmtime authorities, however, are necessary when terrmist groups pose a sufficient threat that 

justifies the use of militmy force. It is important not to confuse our ongoing effort to fight 

terrorism, and the need lo use force against specific terrorist groups al certain limes. For 

exm11ple, AUMF-based military authorities are needed for the armed cont1ict against al-Qaida 

and ISIS. They are not currenlly needed, and should not be conferred to the executive branch, 

for other groups that do nol pose a similar threat. 

11 Benjamin Willes & Jennifer Daskal, The Intellectual-But Not Political-AUMF Consensus, 

Lawfare Blog, Mar. 2, 2015, available athllps://www.lawfareblog.com/intelleclual-not-polilicalaumf-eonsensus. 

6 
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To avoid this problem, Congress should clearly specify the purpose or purposes for which 

military force is authorized. In doing so, Congress should consult with the executive branch 

regarding its counter-ISIS strategy and tailor authorities to support that strategy. For instance, 

military force could be authorized for the purpose of protecting the national security of the 

United States from the threat posed by ISIS until that threat can be adequately addressed by nonmilitary means. Failure to include a clear purpose, or authmizing force for a mission that can 

neYer be fully achieYed, such as preYenting all future attacks, blurs the distinction between 

counterterrorism and war, and risks embroiling the nation in neYer-ending am1ed conflict. 

Specil~ing Where Militarv Force Can Be Used 

One of the challenges that Congress currenlly faces in drafting a new AUMF is reaching 

a consensus about where the new authorities will apply. Gi,en that non-state terrorist 

organizations like ISIS can moYe across national boundaries with relative case, the executive 

branch needs the operational flexibility to usc force against imminent terrorist threats and groups 

engaged in armed conflict with the United States, wherever they may reside. 

As a result, some leaders are understandably wary of geographic limitations that will 

restrict the e'\ecutiYe branch's ability to take the fight to ISIS. Others, howeYer, are concerned 

about supporting an authorization that could be used to authorize the use of force anywhere in 

the world subject only to the constraints of international law." Some AUMF proposals offer 

creative solutions to these competing concerns by specifying the countries where Congress is 

cunently authorizing force and proYiding a mechanism for the executive branch to seek 

expedited approval for expanding the use of force to additional countries. 

Specif~ing the Tvpe of Force that Is AuthoriLed 

The question of whether to place limitations on the usc of ground troops has posed a 

substantial challenge to Congress in considering a new AUMF. As a policy matter, on one side 

of the debate arc those who arc concerned about tying the Commander-in-Chief's hands in a 

tluid situation, and on the other side arc those who do not want to Yotc for an ISIS authorization 

that may be used to start another ground war on the scale of Afghanistan or Iraq, at least not 

without an explicit Yote from Congress. 

Legally, some mistakenly assume that Congress simply does not haYe the constitutional 

authority to limit the use of ground troops. Neither the history of past war authorizations 13 nor 

U.S. case law14 supports this view. While the Commander-in-Chief has wide strategic latitude 

12 See e.g., Remarks by Senator Rand Paul, RcYicwing Congressional Authorizations for the Usc 

of Military Force, Senate Foreign Relations Committee, June 20, 2017. 13 For a detailed analysis finding that 37 percent of past war authorizations have included 

limitations on the type or amount of force that can be used, sec Bill French & John Bradshaw, 

Ending the Endless War, at 23-26, National Secmity Network, Febmary 2015, available at 

htlJ;lJi11'llrcJll9rk. ~·rg;i:lllliGh'Sf;J5Llllil.9illl:<L.~Ll':l:iS£Ei';:fl.lli G-llii".::fl:;lllX;§S.:.}cV_!'tlLlc • .f(ili: 

7 
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26424c-8.eps

once force has been authorized, Congress has the power in the first instance to decide whether to 

authorize "all out war" or to authori7.c more limited uses of the armed forces for specific 

purposes. 

Sunsets and Renewal Provisions: Limiting the Duration of the Authoritv 

Another issue in Congress has been whether to include an expiration date, known as a 

sunset. Some fear that a sunset will signal to the United States' enemies that we plan to end 

hostilities at that time. However, as national security experts acrms the political spectmm have 

repeatedly explained, a sunset does not end lhe war- unless Congress and lhe American people 

decide it is time to do so. A sunset imposes a time limit for revisiting the authorities to assess 

whether any adjustments are necessary. As lhe sunset approaches, Congress would be required 

to assess any changed circumstances that warrant expanding, narrowing, or, al some point, 

ending the usc of military force. This forcing mechanism, which was lacking in the 2001 

AUMF, is critical for ensuring continued congressional approval, engagement, and oversight as 

conflicts evolve 15 

Such good govemment practices reflect our nation's strength and should not be viewed as 

a sign to our enemies that we plan to give up the fight. As former General Counsel of the 

Department of Defense and CIA recently explained, a properly structured reauthmization 

provision with a mechanism for revising and renewing the authority in advance of the sunset 

would signal to our partners and adversaries lhat the United Stales is commilled toils democratic 

institutions and will fight the fight for as long as it takes." And former Secretmy of Defense Ash 

Carter said lhal a 3-year AUMF sunsel was a "sensible and principled provision," though lhe 

conflict would very likely last far longer. 17 A sunset is imporlanl for preventing lhe new 

authorization from being used in unforeseen ways, and I believe lhat a 3-year sunsel is 

reasonable from a national security perspective. 

Requirements for Keeping Congress and the Public Informed 

One of the most significant improvements that Congress can make over the 2001 AUMF 

is to include relevant reporting requirements. Regular and detailed reporting to Congress and the 

1

' See Benjamin Wittes & Jennifer Daskal, The Intellectual-But Not Political-AUMF 

Consensus, Lmd.are Blog, Mar. 2, 2015, available at hllps:i-'" ww.b11 Jarcbkl2.com/imelleclualrr'll::J;1Qlili~!J]-aumf-cmtscnsu!i; see also Jack Goldsmith ct a!., Five Principles That Should 

Govern any U.S. Authori7ation of Force, The Post, Nov. 14,2014, available at 

Is it Time for Congress to Pass an ISIS-Specific AUMF?, Remarks of Stephen Preston, The 

Heritage Foundation, May I, 2017, available at http://www.hcritagc.org/defcnse/cventlit-timccongress-pass-isi s-specific-aumf. 17 Secretary of Defense Ash Carter, Statement on the President's Request for Authorization to 

Use Military Force Against ISIL before lhe Senate Foreign Relations Commillee, Mar. 11,2015, 

available at J~.JiP,v~-.tk~t-ens~_.:£2IiNc\vs/S:1ceches/Arti;;le/6006S2/. 

8 
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26424c-9.eps

public about the war effort is vital to our democracy, necessary for Congress to fulfill its 

oYersight functions, and strengthens the legitimacy of the mission. Many existing AUMF 

proposals include model reporting and transparency proYisions that should be considered. 

Examples include repo1ting on the legal and factual basis for any expansions of the contlict to 

new groups or locations, the number of civilians and combatants killed, and any changes to key 

legal interpretations. 

Ensuring Compliance with International Law 

Demonstrating to our allies and enemies alike that we are nation of laws and that we 

abide by our international commitments is c1itical to winning the fight against terrorism. As 

Secretary Mattis recently testified, "we must also embrace our international alliances and 

security partnerships. History is clear: nations with strong allies thrive and those without them 

wither. Strengthening our alliances requires finding common cause, even with impe1fcct 

partners; taking no ally for granted; and living up to our treaty obligations. When America gives 

its word, it must mean what it says." 18 

Complying with our commitments is not only imp01tant for maintaining allies and the 

legitimacy of the mission, but also because we want other countries to be bound by those same 

rules. As my friend John Bellinger told the Senate last month, "It is important that the United 

States observe intemationallaw rules governing the use of force not only because the U.S. has 

agreed to be bound by the U.N. Charter but because we want other countries like Russia and 

China to follow the same rules .. .If the United States violates or skirts intemationallaw regarding 

use of force, it encourages other countries-like Russia or China-to do the same and makes it 

more difficult for the United States to criticiLe them when they do so."''' 

While all statutes must already be interpreted, whenever possible, consistently with the 

international obligations of the United States, 20 explicitly stating in the authorization that force 

used under it must comply with international law would send a strong message to our allies and 

enemies alike about the enduring values of our country. 

Dealing with Existing AUMFs 

Two AUMFs remain on the books today. The 2001 AUMF passed after 9111 and the 

2002lraq authorization that targeted the Sadda.m Hussein regime. Passing a new AUMF could 

mean repealing these old authorities and passing one new consolidated authority; leaving the 

2001 AUMF in place and passing a new authorization for ISIS; or amending the 2001 

auth01ization to include ISIS. 

18 Nomination Hearing Statement for James N. Mattis to be Secretary of Defense, Senate Armed 

Services Committee, Jan. 12, 2017, available at https://www.annedservices.senatc.gov/hearings/17-0 1-12-confirmation-hearing_ -mattis. 19 Statement by John B. Bellinger lll, Reviewing Congressional Authorizations for the Use of 

Military Force, Senate Foreign Relations Committee, June 20, 2017, ami/able at 

https: //www Joreign.senate.gov limo/media/ doc/0620 17 _Bellinger_ Testimony. pdL 20 See Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804). 

9 
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26424c-10.eps

Whichever approach Congress takes, it should not leave any ambiguity about how the 

remaining authorities apply. The :?.00:?. Iraq AUMF is no longer needed and should be repealed. 

And any new authorization for ISIS should repeal and replace the :?.001 AUMF, or supersede the 

authorities in the :?.00 I AUMF as pertains to ISIS if the 200 I A UMF remains in place. 

Addressing Detention Authority 

By authorizing "all necessary and appropriate force" against the perpetrators of the 9/11 

attacks, the :?.001 AUMF provides the authority for the military lo detain members of a! Qaeda 

and the Tali ban engaged in armed conllict against the United States. 21 But because the 

application of the :?.001 AUMF to ISIS remains controversial, the authority to detain members of 

ISIS is on less solid legal ground. If the administration were to bring ISIS fighters to 

Guantanamo, where detainees arc entitled to bring habeas petitions, courts may determine that 

their detention is not lawful under the 2001 AUMF. 22 

A new AUMF that authorizes necessary and appropriate force against ISIS would provide 

the authority to detain ISIS fighters consistent with the laws of waT. This would allow for in 

theatre military detention and lawful, humane interrogation approaches to gather intelligence to 

support the mission. 

Conclusion 

The lerroristthreal confronting the nation is comple!l., serious, and evolving. Congress 

should update the 2001 AUMF-which is increasingly outdated given the threats the country is 

facing today-to explicilly provide a mandate for the use or military force and the authority that 

is warranted. In doing so, Congress should provide the e!l.eculive branch with the operational 

fie xi bi I ity to prosecute those wars effectively. 

Allhc same Lime, it should tailor those authorities to prevcnllhcm from being used for 

future wars against unnamed enemies that Congress, and the American people, did not intend to 

authorize. Passing a properly tailored A UMF with meaningful oversight and transparency is 

Congress' democratic responsibility. 

Fulfilling this responsibility will show our troops that Congress is behind them, bolster 

American leadership, assure our allies and partners that the United States respects human rights 

and the rule or law, and demonstrate lo our enemies that we are committed lo their defeat. 

21 See Hamdi v. Ramsfeld, 542 U.S. 507 (2004). 22 See e.g . .lack Goldsmith, The Practical Need for an lSIL AUMF, Lawfm·e Blog, Feb. 8, 2017, 

available at l1tlPJ3.JL~Y\l.}'C.l:l!i.[m:r.bls:u;.,;:.i>JIIiJlJ::J£1ifill:l G Z.'!.L ns&<,l:i~J1:!l.l!ll.lL Chari cs Stimson & 

Hugh Dm1ilak, The Case Law Concerning the :?.001 Authorization for Use of Military Force <md 

Its Application to ISIS, The Heritage Foundation, available at 

hlin~, \ v. h~n Utg.c .()f:ii de ten seLI~.!2So-ILLJbe-case:k~~l?Jl~mill!;.:J.l1c ·· 2C~D..l::£Lllih.illJ tali on -JJ~;emliiturY -foret'- and- ]~i:_ 

10 
32

Chairman ROYCE. Thank you, Mr. Olsen. 

I have reviewed with interest the bipartisan AUMF over in the 

Senate, the Flake and Kaine measure, and I want to ask you about 

that. 

Before I do, just a quick question on repeal and replacement. Do 

you believe that the 2001 AUMF should be repealed until a replacement is enacted? Because there is some debate on how that 

would create a problem for our national security. 

And so I just would ask you outright about just repealing it now 

and then waiting to see if we can reach accord on a replacement. 

Judge. 

Judge MUKASEY. I think that would be enormously dangerous. It 

would set off a debate as to whether there was existing authority 

to conduct any of the operations we are conducting now and would 

signal to our adversaries a level of uncertainty that I think could 

invite additional attacks. 

So the short answer is, no, I don’t think there ought to be a repeal until there is a consensus about what is going to replace it. 

Chairman ROYCE. General. 

General GROSS. Yes. Sir, I agree that there should not be a repeal until there’s a replacement in place, as the judge mentioned. 

But in addition, it would create an enormous amount of legal uncertainty with respect to our detention operations in Guantanamo 

Bay and other places. 

Chairman ROYCE. Mr. Olsen. 

Mr. OLSEN. I share that view. 

Chairman ROYCE. All right. 

Now, let me go to the Flake-Kaine bill. This would authorize the 

President for 5 years to use force against designated groups in designated countries and it would allow the President to add new ‘‘associated forces’’—as we used to use the term—if there is a spinoff 

group, and new countries. 

But you would have to report them to Congress, which would 

then have the opportunity to disapprove of those expansions. That 

is the way the bill is set up. 

So I just ask each of you what you think of that construct. Would 

it fix some of the ambiguities that we face with the 2001 AUMF 

by making sure that Congress receives clear, timely notice of the 

boundaries of the authority to use force? 

The other aspect of this is a little more complicated—would such 

a delegation of war making decisions—allowing the President to 

add groups to the AUMF without congressional action; in other 

words, this associated forces if there’s a spinoff terrorist group—

would handling it in that way be constitutional. 

So Judge? 

Judge MUKASEY. I think it would be constitutional. There is a 

lively debate as to whether the underlying problem here—which is 

whether the war powers resolution back in 1973 was itself constitutional—and that has never been tested. Rather, it has been tested 

through a back and forth between Congress and the President, 

which is probably the wisest way to do it. 

I think that is a rational way to treat the issue because otherwise, you have the exercise that we have now, which is we conduct 

a kind of DNA test on the various groups to find out whether they 

33

do or don’t carry the DNA of al-Qaeda and so far the judgment is 

that, for example, that ISIS does carry the DNA of al-Qaeda. 

That is a respectable point of view. On the other hand, you get 

further and further out on the branch it starts to look increasingly 

strained and——

Chairman ROYCE. Let me get General Gross’ view of it. 

General GROSS. Yes, Mr. Chairman. 

One of the things I noticed that—first of all, I do think it does 

a good job of laying out the authorities against the current threat. 

It mentions al-Qaeda, the Taliban, ISIS. It has a provision for associated forces that is fairly clear and would help. It includes other 

groups that we currently have or have had operations against—al 

Nusra Front, Khorasan Group, AQAP, al-Shabaab, and others that 

are listed in here. 

I can’t speak to the constitutionality or not of the approval-disapproval procedures. I would refer those to a constitutional expert. 

I do think it might create a lack of flexibility for the commander, 

a lack of flexibility for the President. As intelligence changes and 

they try to move quickly against an ever-changing enemy, I think 

that could be problematic. 

Chairman ROYCE. Well, this is an attempt to reconcile that so 

that a quickly changing or morphing enemy—but I would assume 

your major point would be the time frame. 

General GROSS. Yes, sir. 

Chairman ROYCE. And yet, we are in a bit of a conundrum here 

because in order to reach consensus with members of both sides of 

the aisle we are wrestling with this issue of a time frame. Otherwise, it puts us right back to where we are today. 

General GROSS. Yes, sir. 

Chairman ROYCE. Let me go to Mr. Olsen for his——

General GROSS. Sir——

Chairman ROYCE. Yes? 

General GROSS [continuing]. If I could just make one——

Chairman ROYCE. Yes. 

General GROSS [continuing]. One other point. One of the things 

in here, the disapproval procedure for a group—as I read it, once 

you disapprove a group, you can’t renominate that group and that 

seemed to me to be a——

Chairman ROYCE. Okay. 

General GROSS [continuing]. Unless I am misreading it——

Chairman ROYCE. Okay. So that is a technical change that we 

could, in theory, address. 

General GROSS. Yes, sir, because as intelligence changes——

Chairman ROYCE. Yes. Right. 

General GROSS [continuing]. A group that we nominate now——

Chairman ROYCE. Right. Right. 

General GROSS. Yes, sir. 

Chairman ROYCE. I understand. Good point. 

Mr. Olsen. 

Mr. OLSEN. Yes, sir. I actually think it is a sensible and reasonable good faith bipartisan approach. It has many of the elements 

that I would think are appropriate, including a sunset provision 

and reporting requirements. 

34

I think that the approval—or disapproval—process, that seems to 

me to be an appropriate way to reconcile Congress’ role relative to 

the executive branch’s role. 

My suggestion would be that an approval process versus a disapproval process might be more appropriate because of the consequences or difficulty of Congress disapproving an action once it 

has already started to take place. 

In other words, facts on the ground may make it more difficult 

for Congress to disapprove the additional——

Chairman ROYCE. But that would be the equivalent of having a 

whole new AUMF if you had an organization that changed its 

name. 

Mr. OLSEN. Not necessarily changed its name. In other words, 

changing its name could still fall under the actual group itself. 

But when a new associated force would be added by the executive branch, they would have to obtain the approval of Congress. 

I think that would be an appropriate question. 

Chairman ROYCE. I see my time has expired. 

Mr. Engel. Thank you, panel. 

Mr. ENGEL. Thank you, Mr. Chairman. Mr. Mukasey, it seems at 

least—please correct me if I am wrong—that you seem to favor giving any administration a blank check in doing whatever they deem 

necessary to combat whatever they are combatting. 

I feel—and I know a number of my colleagues feel on both sides 

of the aisle—that there is an important congressional role to be 

played here—that it is not simply a matter of passing an AUMF 

15 years ago and sort of relieving it as a catch-all for every administration, both parties, because they want maximum flexibility to 

do whatever they want. 

While I want to give the administration the tools to fight terrorism, I don’t want to give them or anybody else a blank check 

and I don’t care who is the President, Democrat or Republican. 

So could you please explain to me a little bit, or clarify to me a 

little bit that you don’t favor a blank check? Because I think from 

your remarks it seems to indicate that you do. 

Judge MUKASEY. Okay. I don’t understand what in my remarks 

suggests that I favor a blank check since I favored——

Mr. ENGEL. So clarify it for me, please. 

Judge MUKASEY [continuing]. A sunset provision and I favored 

updating the list of who. So I am kind of puzzled. 

Mr. ENGEL. Well, don’t be puzzled. Just tell me what your views 

are. I am happy to hear them. 

Judge MUKASEY. My views are, as I expressed them today and 

as I expressed them in my written statement, and my comment at 

the beginning about World War II not having started with a deadline remains true. 

The fact is that I can’t necessarily envision how all of this is 

going to end. On the other hand, there is nothing wrong with periodic reauthorizations, periodic reconsiderations of what it is we are 

doing. That is my view. 

Mr. ENGEL. Well, periodic reconsiderations are fine. But if they 

don’t happen, then are you in favor of just allowing things to continue as we have for the past 16 years? 

35

You seem to feel very complacent about it and some of us are 

really angry that 16 years later we are still doing the same things. 

And by the way, I voted for that 2001 authorization. 

Judge MUKASEY. Hardly complacent. I favored reconsidering the 

AUMF for years and the fact that Congress hasn’t done it has 

nothing to do with my complacency. 

Chairman ROYCE. Okay. 

Let me ask Mr. Olsen—many Americans are concerned about another escalation in U.S. military involvement overseas. While certainly there are important threats both in ISIS and, I would say, 

even Assad, I am very wary about getting us into another ground 

war in Iraq or Syria. 

You provided a lot of detail in your written testimony about what 

an updated AUMF could include. Can you summarize how you 

think an AUMF would responsibly limit the authority that currently exists under the 2001 AUMF and provide greater congressional oversight and transparency at the same time? 

Mr. OLSEN. Yes, certainly. 

In short, I think the key is that, first, that a new AUMF be tailored to the current threat environment. That, I think, is paramount. The threats have changed. The groups have changed. 

What the country faces in terms of terrorist threats have 

changed over the past 16 years. So updating the AUMF to reflect 

the current threat environment is actually an endorsement—a 

mandate for the current use of force in those appropriate circumstances. 

I think it is also important to say that there are many instances 

that don’t require the authorization for use of military force. In 

other words, there are a number of tools that the government has, 

speaking from my time at the National Counterterrorism Center, 

to take on the threats that we face and they include law enforcement, intelligence, and diplomatic tools. There is an array of capabilities that the United States has that are not the use of force 

which typically should be the last resort. 

So updating the AUMF to reflect the current threats, that is 

number one. Then there are a number of other requirements that 

are suggested procedural elements that I think should be kindled. 

First, a sunset provision—I recommended a 3-year sunset to ensure that, given how dynamic the threat is, that AUMF stays up 

to date. Two, that there are reporting requirements—in other 

words, that the executive branch be required to brief Congress and 

to provide reporting on the nature of the threats and what groups 

it is considering as associated forces. 

I also think that it is appropriate to consider similar restrictions 

or processes to balance the flexibility and transparency that General Gross talked about, including provisions like requiring an approval or disapproval of new associated forces and limitations on 

particular types of activities, such as sustained ground forces and 

occupation of territory. 

I think that is another element that Congress should consider including in an AUMF. 

Mr. ENGEL. General Gross, first of all, you are much too young 

to have served in the military for 30 years. I don’t believe it. 

Secondly, do you agree with Mr. Olsen? 

36

General GROSS. I agree with some of what he said, sir. 

I mean, I think the critical thing for Congress to consider is that 

balance—that the more proscriptive or descriptive an AUMF is, the 

less flexibility a commander and the President has. 

But Congress plays an absolutely critical role here and I think 

it is important that Congress speaks as to our current conflicts and 

where we ought to go with that. 

Mr. ENGEL. Okay. Thank you very much. 

Mr. SMITH. Thank you, Mr. Engel. 

Just let me ask a couple questions. Thank you for your very incisive testimony. 

Let me ask you, did the current AUMF restrict our efforts in any 

way over the last 16 years, and Mr. Olsen, you mentioned 37 times 

it has been invoked, or was it just a matter of the lawyers coming 

up with a way of explaining what had to be done and how do they 

get from here to there? 

Secondly, how might terrorists read or misread a re-examination 

of a new AUMF? We never want to unwittingly embolden the 

enemy. 

Could they misread this to think that a hard sunset is actually 

an exit strategy? Whether that is good or bad but it might embolden them. 

I have been around here long enough to know that nothing in 

Congress ever happens quickly and I am wondering—again, on 

sunsets we might not get to it, even if it is expedited on some way. 

Sequestration wasn’t supposed to happen in terms of imposition 

of it and yet it did and we know it has hurt severely our military 

because of it. But it was supposed to be such an unthinkable outcome that it wouldn’t happen. 

So, a 3-year sunset, 5-year sunset—House and Senate bills have 

that in it. A hard sunset, could that embolden the enemy unwittingly? 

And then, finally, what are the advantages, negative and positive 

consequences, to having a sunset date? I mean, could we just require more oversight to the existing AUMF from the administration or what does the sunset actually give us? 

Judge, if we can start with you. 

Judge MUKASEY. Taking the questions in order, did the AUMF 

limit us? In one case, I think it actually did or at least potentially 

did. 

There was a man named Faisal Shahzad who was apprehended 

in New York, planning to blow up Times Square with an—with an 

improvised bomb. 

Turned out he was funded by Pakistani Taliban rather than the 

Afghan Taliban with which we were familiar, and on one view of 

the AUMF he and his activities and those who funded him were 

not covered by the AUMF. 

Now, he was treated as an ordinary criminal. What else was 

done, I don’t know. But there was a lively argument as to whether 

or not the sources of that funding were covered by the existing 

AUMF when it shouldn’t have. There shouldn’t have been that 

kind of debate, number one. 

Secondly, could our enemies misread it? I think our enemies 

could misread it unless we make the message explicit that the sunVerDate 0ct 09 2002 16:41 Sep 29, 2017 Jkt 000000 PO 00000 Frm 00040 Fmt 6633 Sfmt 6633 Z:\WORK\_FULL\072517\26424 SHIRL
37

set provision is only to re-examine the way we focus our activities 

and is not and should not be read as a limit on our commitment 

to oppose the forces that are fighting us. 

I am sure that with the clever people—clever draftsmen here we 

can come up with language that would convey that loud and clear. 

And finally, what are the advantages of a sunset—I think what 

they do is refocus and recommit people who were not around when 

the original AUMF passed who may feel that politically it is easier 

to just find fault than it is to get behind something. 

I am not suggesting anybody here is doing that but there is always that temptation and I think a requirement that people focus, 

that Members of Congress focus, provides that advantage. 

Thank you. 

General GROSS. Yes, sir. As far as limitations, I mean, it is—I 

am thinking back. There had to have been over my 4 years times 

when there were individuals who were nominated for looking at 

military targeting operations that did not follow them—that we 

couldn’t find the authority within the AUMF to go forward. 

If I could remember the details they would be classified. But I 

can’t imagine I went 4 years. I just seem to recall there were times 

that individuals didn’t fit under the AUMF. 

As far as the sunset, I agree with what the judge said. I think 

the positive consequences, if you will, of a sunset provision are requiring that re-examination. 

It sets a date certain when both sides will—both sides being both 

the President and the executive branch and the Congress—will 

know the deadline is coming up and begin to re-examine that and 

look at that. 

I think the negative consequences—those that I pointed out in 

my testimony—it does create a lot of legal uncertainty. 

As you approach that deadline and as you get real close to that 

line, and particularly if you cross that line without a new authorization, there is a lot of uncertainty with whatever military operations are ongoing at that time and whatever detention operations 

are going on at that time. 

So that creates quite a bit of uncertainty there. 

Mr. OLSEN. Yes, sir. 

I think, first, on the question of the AUMF and whether it has 

restricted the government’s actions I think the answer is yes, if you 

look, for example, at detainees at Guantanamo. 

Judges have found in several cases that individuals at Guantanamo did not fit within the AUMF. I think an appropriate exercise 

of judicial oversight to look and see what the contours of the law 

are, who is part of al-Qaeda, who is an associated force, and making a determination, I agree with General Gross as well. 

Operational activities have looked at individuals and determined 

they did not fall within the AUMF; again, I think appropriately so. 

So I think that is, again, a reasonable exercise of executive and 

judicial branch discretion and judgment about who falls within. So 

that is one. 

Quickly, on the other two, the question of whether a sunset 

would embolden our enemies—I think exactly the opposite, to be 

quite honest. 

38

I think the reassertion of the authority to use military force on 

a timely basis really sends the message to our enemies that Congress, on behalf of the American people, stands behind our troops 

and is saying we are continuing to authorize force. I think it sends 

a message of commitment and dedication to the fight. 

And then, third, on the sunset, I think the pros and cons—I 

think one thing to consider, I would respectfully suggest, is that 

this particular conflict, now the longest in U.S. history, is different 

from conventional traditional wars we have come to know in World 

War II and in the past, and therefore a sunset is appropriate, given 

that terrorism is going to be with us. That is a fact. So the use of 

a sunset is appropriate under those circumstances. Thank you. 

Mr. SMITH. Thank you. 

Thank you, all three of you. 

Brad Sherman. 

Mr. SHERMAN. Our Founders wrestled with this issue over 200 

years ago. They knew that by vesting—they could have vested all 

power in the executive branch, thereby achieving security, secrecy, 

and flexibility. 

They chose not to. But the advocates of Presidential power keep 

pretending that they did and we are told that we would be best off 

if the executive branch could make all the decisions with secrecy 

and flexibility, and we should trust that because, well, our men and 

women in uniform and the Pentagon in general will be careful or 

that Congress can exercise oversight and consultation. 

That is not what the Constitution provides. It vests in Congress 

not only the power to declare war but control over the money that 

funds military operations. It also makes the President Commander 

in Chief. So how do we wrestle with those competing constitutional 

provisions? 

President Jefferson did and he is far more familiar with the Constitution than any of us. Americans had been attacked in the Mediterranean by the Bay of Tripoli. Not our allies attacked, not civilians of another country attacked—American ships were attacked 

and before sending our naval forces—basically most of the military 

power of the United States to the Mediterranean, to the shores of 

Tripoli—he sought congressional authorization, which was provided 

on February 2, 1802. 

The advocates of unlimited executive power without the need for 

congressional authorization—I am willing to do that as soon as we 

elect a President who is wiser than Jefferson. 

So in 1973, we passed the War Powers Resolution, known as the 

War Powers Act, that allows the President to do pretty much what 

he or she wants for 60 to 90 days but does provide real restrictions. 

Since then, every President has said that they don’t recognize the 

binding power of the AUMF but they will often act consistent with 

it. 

The most recent clear violation, because our attacks on ISIS may 

be authorized by the 2001 AUMF but was not authorized by an 

AUMF, was our many months of operations against Qaddafi. 

Qaddafi wasn’t associated with Saddam Hussein or al-Qaeda and 

we were told at that time that as a substitute for congressional authorization maybe there would be a U.N. resolution or NATO or coalition of the willing. 

39

The fact is that at least in that circumstance the President, and 

others have as well, simply violated the War Powers Act. 

What we did, though, in 2011, at least in the House of Representatives, is provide a way to enforce the War Powers Act, because although the War Powers Act is argued by some to violate 

the constitutional right to be Commander in Chief, no one doubts 

Congress’ right to control what happens to appropriated funds. 

And so in 2011 I proposed an amendment—failed the first time, 

finally got it passed—to say that no funds shall be spent in contravention of the War Powers Act and that has been part of the 

base bill for defense appropriations ever since, as it will be this 

year. 

We don’t need to pass a new AUMF to show the world we support our troops. We provide funds for them and support them in 

so many other ways. But repeal now replace later doesn’t work for 

health care. I don’t know if it will work here but I know I am very 

much opposed to it in health care. 

And while I think the general has argued that specificity is the 

opposite of flexibility, I would point out that vague authorization—

a blank check, if you will—is the opposite of democracy. 

My question for all three panellists is, would you advise a President that the War Powers Act is not constitutionally binding on the 

President or is it the law of the land that the President must adhere to? Can I get a one-word answer from each? Mr. Olsen. 

Mr. OLSEN. My experience, Mr. Sherman, is similar to yours, 

which is that, at least with the Obama administration where I was 

most familiar, that——

Mr. SHERMAN. I need a one-word answer. I’ve got limited time. 

I will go on to the general. 

Mr. OLSEN [continuing]. That it was considered to be something 

that the administration complied with. 

Mr. SHERMAN. Something they will comply with because it is convenient or something that is legally binding? 

General, why don’t you answer? 

General GROSS. Sir, I am not a constitutional expert. 

Mr. SHERMAN. Okay. I will go to the judge. 

Judge MUKASEY. I give the same answer that every Attorney 

General since Jimmy Carter’s Attorney General gave, which is yes. 

Mr. SHERMAN. Yes, it is binding? 

Judge MUKASEY. No. Yes, it is unconstitutional. 

Mr. SHERMAN. Yes, it is—okay. I will follow that up with one 

quick question. 

Can Congress legally provide that moneys provided by the defense approps bill cannot be spent in contravention of that act? 

Judge MUKASEY. Sure. 

Mr. SHERMAN. So that is the way to enforce it. 

I will yield back. 

Judge MUKASEY. That is a way. 

Mr. SMITH. Chair recognizes the gentleman from California, 

Dana Rohrabacher. 

Mr. ROHRABACHER. Well, first and foremost, I would like to 

thank our chairman, Mr. Royce, and Mr. Engel for calling this 

hearing. I think this is the type of hearing we need to have where 

40

you have various points of view being expressed and on a very important issue for us to understand. 

So and I will have to say that my depth of knowledge has been 

increased due to your testimony today and I thank the witnesses 

for that. 

Let me just note some of the points that have been made. But 

first, Mr. Sherman mentioned Thomas Jefferson’s sending this 

issue to Congress. 

Let us note that Thomas Jefferson also, when sending this issue 

of how to deal with the Barbary Pirates in Tripoli, he received a 

certain, how do you say, instructions from Congress. Yes, he did 

and he disobeyed them. 

And in fact, I am sure our witnesses know about the William 

Eaton effort that overthrew the Government of Tripoli, which was 

done in direct contradiction to what Congress had instructed the 

President to do. 

So with that note, there are various interpretations about various things that were going on during that time period. 

We do know that Congress has—as Mr. Sherman noted—that we 

do have the authority here and we need to exercise that. The executive branch, obviously, has the major portion of authority. I do not 

believe that—and one of the points made today was that when you 

limit a commitment to a goal, that is a bad thing. 

We should not be limiting—if we have a goal and it is verified 

by Congress, we shouldn’t put limits on a commitment to the goal 

but instead the AUMF is actually a commitment to get the job done 

in a timely manner and I think that that is a very legitimate analysis. We aren’t limiting the commitment. 

We are just telling people if you got a commitment to military 

action, you better get it done and that this is not just going to linger forever. 

The sunset provisions, which were the majority of discussion 

today, are vital for us to understand. I would have to say that authorizing—telling someone that you only have between now and 

then before you have to get a reauthorization in no way, I believe, 

weakens our position. 

The fact is that if indeed the American people are supportive of 

a military action and the Congress knows that—and the military 

and our executive branch knows they are going to have to come before the government again to have an approval, that if the American people are not supportive of it, maybe that sunset should be 

able to function and we should maybe walk away. 

Maybe we should have walked away from Vietnam 4 years into 

the action rather than let it linger 10 years. And I left Vietnam in 

1967 and I was just there a couple months—I was not in the military—I was doing some things up in the Central Highlands and I 

knew we were going to lose then. I knew—I walked away. I said, 

we are going to lose this war, and there were 30,000 casualties 

after that. So it would have been a good thing for us to have to 

re-evaluate after 4 or 5 years that whole Gulf of Tonkin resolution. 

So I appreciate, again, you giving us, really, food for thought 

today. The one example, the Guantanamo example—what was your 

point in that in terms of saying that when you had some authorization of force that it didn’t include certain prisoners in Guantanamo 

41

that we shouldn’t have had then? What was the point of that whole 

example? 

Mr. OLSEN. Yes, sir. My comment was with respect to the application of the existing AUMF to the current detainees at Guantanamo and the fact that the executive branch and the judicial 

branch have determined on a number of occasions that individuals 

at Guantanamo did not fall within the purview of the AUMF. I 

suggest that was an appropriate exercise of that judgment. 

But the other issue is the lack of certainty around the existing 

AUMF as it applies to ISIS and how that might affect detention 

operations. 

Mr. ROHRABACHER. Then could that be interpreted as, again, how 

do you say, fine tuning? Are we going to micro manage? 

When we permit something to happen that we should be micro 

managing it in that way, again, determine what enemies are going 

to be going to Guantanamo and what enemies are not? 

Mr. OLSEN. Well, respectfully, I wouldn’t suggest that is micro 

managing for Congress. 

Congress would name the group—the organization that is subject 

to the AUMF and then it would be up to individual cases based on 

the facts—the executive branch, with oversight from the judicial 

branch—to determine who falls within that definition. 

Mr. SMITH. Time of the gentleman——

Mr. ROHRABACHER. Thank you very much. 

Just for the record, I believe in sunsets but I also believe that 

once you have provided an authorization of force that the executive 

branch should be able to do their job and do it right. 

Thank you. 

Mr. SMITH. Mr. Deutch. 

Mr. DEUTCH. Thank you, Mr. Chairman. I would like to thank 

you and the ranking member for holding today’s hearing. It is one 

that this committee should be having and, frankly, I think we 

would all agree it is one that we should have had many times over 

the recent years. 

I know, Mr. Chairman, that both you and the ranking member 

believe strongly in the jurisdictional prerogative of this committee 

to lead on the authorization of the use of military force. 

So I hope that today is only the start of what will become a serious conversation about the situation we find ourselves in where we 

continue to rely on an AUMF post-911 in order to guide every military action that we take around the world. 

For more than 4 years now, we have not been having a serious 

conversation at all in this Congress about this. Discussion about a 

new AUMF does bubble up. It comes up when we are reacting to 

a new horror in the Syrian conflict, whether it was after the 2013 

chemical weapon attack or the latest decision by the administration 

to strike Assad’s air base in April. 

In 2015, the Obama administration sent a proposed AUMF to 

Congress. We did not consider it. We did not consider an alternative. It is a hard conversation to have and we passed. 

I know it is hard. There are divisions on both sides of the aisle. 

But not having a conversation at all, a real robust debate in the 

United States Congress, just because it is hard is an abdication of 

our responsibilities to represent our constituents. 

42

It is clear that relying on the 2001 AUMF for the new fight 

against terror is no longer the best option to protect this country 

and our men and women in uniform. 

It is even more clear that the AUMF for the Iraq war has to be 

repealed. So let us at least start where we have some agreement. 

Our inaction only enables this administration—or any administration, frankly—to continue operating militarily with a free pass 

from the American people—a free pass from the United States Congress. 

I am deeply concerned about what happens when Congress continually refuses to act and that is what I would like to ask about. 

Mr. Olsen, I will start with you. Every time Congress consents 

to the President using military force without prior congressional 

approval, whether it is in Libya or in Syria, the President seems 

to rely on Congress’ failure to act as evidence in support of even 

stronger unilateral executive war powers. 

Does the lack of congressional action on authorizing force increase the likelihood that this President and future Presidents will 

engage U.S. troops in more conflicts without congressional consent? 

Mr. OLSEN. Well, I think the answer to that question is yes. In 

other words, the consistent failure for the Congress to act does tend 

to erode Congress’ appropriate role under the Constitution over 

time relative to the executive branch in, one, declaring war but also 

exercising appropriate oversight over the executive branch. 

I think there is that potential for an erosion of congressional authority in this particular space. 

Mr. DEUTCH. General Gross. 

General GROSS. Sir, at the level that I operated for the things 

that I did that conversation didn’t go on. 

The conversation that went on as a practitioner was here’s the 

proposed operation, here’s the proposed enemy or person or group 

or target or objective, and is there legal authority right now under 

the existing framework to conduct that military operation? And 

that is the conversation that I participated in. 

Mr. DEUTCH. Judge Mukasey. 

Judge MUKASEY. I can answer it only from a legal perspective. 

A congressional failure to act is considered probably the weakest 

kind of legislative evidence because it can show a whole lot of 

things other than endorsement. 

That said, I certainly agree that there ought to be a reconsideration and a reauthorization. 

Mr. DEUTCH. General Gross, just a question about the Syrian 

conflict specifically. On the one hand, the question is how do we ensure that a new AUMF both gives us the flexibility we need to go 

after various actors and at the same time or can it at the same 

time help reduce the risk of unintended military conflict with other 

actors in Syria? 

General GROSS. Well, sir, I think that is a good question and I 

think the Flake-Kaine amendment does that—the proposal. 

You define the groups that you are going after. You can, obviously, define geographic limits but that wouldn’t, in this case, do 

that, and you define other parameters, as Congress would deem appropriate, and that provides the framework within where we have 

to operate. 

43

And so if a certain force in a certain country doesn’t fit within 

the definition of the named groups or fit within the definition of an 

associated force, then the AUMF can’t be the source of domestic 

law for that particular operation. 

Mr. DEUTCH. And if the AUMF can’t be the source of domestic 

law, then you are violating—it would be a violation of the AUMF. 

General GROSS. Not necessarily because the President can and 

often does fall back on their Article 2 authority which then kicks 

in the War Powers Resolution and the 60-day. There is still authority for the President under Article 2 and Presidents from both parties have relied on that throughout history as the authority. 

Mr. DEUTCH. That wouldn’t have been authorized before. 

Thank you. Thank you to our witnesses and thank you, Mr. 

Chairman. 

Mr. SMITH. Mr. Wilson. 

Mr. WILSON. Thank you, Mr. Chairman. Thank each of you for 

being here today on this very important issue. 

As a member of this committee and the House Armed Services 

Committee, and as the grateful dead said, four sons serve in Iraq, 

Egypt, and Afghanistan in the global war on terrorism, I particularly appreciate the efforts that you are expressing today. I also 

agree with the comments of Chairman Ed Royce that any effort to 

repeal the 2001 authorization for use of military force without having more effective replacement that does not place arbitrary restrictions on the present military commanders. 

This is so important because if we play around with the wording 

we should always be mindful that we are dealing with illegal 

enemy combatants who are not in uniform who will be placing 

American families at risk. 

We have a circumstance of where ever changing—their names 

are changing, the people are changing, the places are changing. 

Over and over again we see them using civilians as human shields, 

targeting civilians, as we saw again yesterday—incredibly enough, 

mass murder again in Kabul. Over and over we see this. 

For each of you, we have had administrations that have claimed 

the AUMF is not strictly necessary—a new one. They claim that 

they possess ample legal authority to prosecute the war against alQaeda and associated forces such as ISIS. 

Just last week, General Joseph Dunford, chairman of the Joint 

Chiefs of Staff, stated, ‘‘We are now relying on the 2001 authorization for use of military force. What I have said is we have all the 

legal authority that we need now to prosecute al-Qaeda, ISIS, and 

other affiliated groups.’’

For each of you, do you agree with the assessment that the 2001 

AUMF provides, in the words of General Dunford, all the legal authority? 

Beginning with Judge Mukasey. 

Judge MUKASEY. If we are talking legal authority and we are 

talking ISIS, I believe the answer is yes. But that doesn’t mean 

that we ought not to reauthorize and ought not to pass a new 

AUMF. 

If the question is whether the military efforts now in the field 

are backed by legal authority, I believe they are. 

Mr. WILSON. Thank you. 

44

And General. 

General GROSS. I would agree with that answer, sir, in the sense 

that it is adequate for ISIS, al-Qaeda, Taliban, and associated 

forces. 

Mr. OLSEN. I agree with both of those comments that the current 

interpretation is appropriate and that there is adequate authority. 

I think it is important, though, to emphasize this notion that it 

is simply adequate but I think there is a consensus among all three 

of us that it is appropriate to update the AUMF for a variety of 

reasons, including the dynamic threat and how it has changed, and 

to really clarify how it applies to ISIS, which remains a controversial interpretation to this day. 

Mr. WILSON. Well, thank you to each of you. But the key thing 

is that we are operating under legal authority properly for our military. 

And General Mukasey, thank you for identifying the Taliban distinctions—Afghan versus Pakistani. The 2001 AUMF—and this is 

a question for you—has been used against al-Qaeda, the Talibanassociated forces, groups that have joined al-Qaeda or the Taliban 

in their fight against the United States. 

So far, they have included al-Qaeda affiliates in the Arabian Peninsula, Libya, and Syria, al-Shabaab and ISIS from North Africa 

to the Philippines. 

Are there terrorist groups that pose a serious threat to the 

United States that do not have enough of an al-Qaeda or Taliban 

nexus to qualify as associated forces under the 2001 AUMF? If so, 

is the threat urgent enough that they be included in a new AUMF? 

Judge MUKASEY. It may be that Hezbollah, potentially, poses 

that threat. Whether they can be traced to organizations that were 

active against us at the time the AUMF was passed, I seriously 

doubt. 

There are separate entities that ought to be perhaps the subject 

of a separate AUMF like the Somali pirates and so on, but that is 

something beyond, probably, this hearing. 

Mr. WILSON. And I appreciate your raising that—Hamas, 

Hezbollah, the pirates. It is incredible what the American people 

face and our ally, Israel, simultaneously. 

And, General Gross, I am really going to conclude by thanking 

you for your service. I served, myself, 31 years Army Guard Reserves. 

But as a fellow JAG officer, I am particularly grateful for your 

service and for all three of you. 

So thank you and best wishes on your service. 

Mr. SMITH. Mr. Keating. 

Mr. KEATING. Thank you, Mr. Chairman. I want to thank the 

chairman and the ranking member for having this important hearing and taking a leadership role on really an important issue that 

Congress has gone silent on for many years now. 

I want to also thank our witnesses and thank you for your service to this country and thank you for being here to share your 

thoughts on this. 

Our success and what we have had as a game plan has depended 

so much, and I think in the future will depend on so much of our 

ability to deal as a coalition with other countries. 

45

To me, going it alone is perilous in today’s world. And I just want 

to ask, particularly Mr. Olsen at first, we have on one hand, counterterrorism to balance, but we have on the other a coalition to 

maintain dealing with this—a coalition that has been with us during such difficult times. 

Now, in the absence of having a new AUMF and making those 

lines clearer, given some of the dialogue that has occurred with our 

allies and with our NATO allies, the failure to do that, going forward, what could you see as a problem in keeping our coalition together if things aren’t defined? Or do you think we are better off 

keeping the flexibility that appears to be there now? 

Mr. OLSEN. So, first of all, let me agree wholeheartedly with your 

observation about the importance of the United States taking on 

terrorist groups as part of a broader coalition. I think we have seen 

operationally over time that there is really no question about our 

effectives when we work with our allies, whether those are our European allies or our partners in the region and that has been proven over and over again. 

Mr. KEATING. I would say yes, that—to interrupt you with that—

our long-term success it is essential because we can win militarily 

but holding that area, too. 

So it is not just our allies that are participating. It is the world 

community that we are seeing now where the people have a stake 

in the action on the ground and will hold what we are able to accomplish militarily against ISIS or other groups. 

Mr. OLSEN. Absolutely right. I totally agree with that, and I do 

think—bringing it back to this discussion—that including in a new 

AUMF both some requirements for a sunset and reporting requirements, they reassure our allies about how we view this conflict, 

that it is not never ending, that there is the support of the American people as voiced through Congress as well as a clear commitment to the application of international law, which is an important 

element to our allies. 

I believe in developing and building a coalition that will be sustained not just in the short term through military conflict, as you 

point out, but over the long haul, which is required, I think, for our 

success. 

Mr. KEATING. Yes. 

General Gross, too, if you could comment on the other aspect of 

having countries with a stake in the action, being able to hold that 

territory when we see terrorist groups like ISIS moving forward. It 

is important for our coalition to be maintained but it is also important to have nations on the ground willing to hold that territory. 

General GROSS. No, sir. I couldn’t agree more. I mean, fighting 

in a coalition really is virtually essential today to have the capabilities, the international credibility, the support. 

Different countries bring different things to the fight and I think 

we are stronger for it when we fight as a coalition than when we 

try to go it alone. And so I agree completely. 

My experience, talking to allies—and we often had discussions on 

legal authorities—is they tended to focus more on whether or not 

there was an international legal basis for a particular military operation because if we didn’t have one they didn’t have one. 

46

And so that tended to be the focus. They were concerned with domestic legal authority, particularly when it came to detention operations because often some countries might not have a domestic 

legal basis for detaining someone in a particular theater or operation and therefore they couldn’t and they might want to transfer 

detainees to a country that did and so they would be concerned 

that the country receiving detainees had a domestic legal authority 

for that. 

So that tended to be when that conversation came up. But for the 

most part, the international legal basis was the focus of discussions 

country to country when you talked about legal authority. 

Mr. KEATING. Do you see the ability right now, because a lot of 

this is about timing—do you see the ability right—or, really, do you 

see any warning signs that our failure to act as a Congress could 

endanger future coalitions, going forward? 

General GROSS. I don’t—again, I think if they felt like we had 

some authority internationally—under international law and domestic law to continue operations that would be their focus. 

It is just hard for me to say how much they pay attention to 

whether or not Congress is acting. I just can’t recall ever having 

those discussions. 

Mr. KEATING. Great. I yield back. 

Mr. DUNCAN. I thank the gentleman. 

The Chair will now recognize himself for 5 minutes. 

Drone strikes—we had this debate back when the Libya involvement was going on and whether the AUMF authorized drones 

strikes in Libya. 

Can you cover—and I will ask Mr. Olsen first—drone strikes and 

how they fit in this AUMF wherever they may occur, whether it 

is Middle East, North Africa, Africa proper. How do you feel about 

that? 

Mr. OLSEN. Well, certainly, from a legal perspective and from a 

domestic law perspective, when the government considered carrying out a lethal strike, whether by drone or otherwise—one of the 

critical determinations or considerations was whether the target 

fell within the authorization for use of military force. 

So the application of the AUMF to a particular proposed individual was certainly part of that discussion. 

I do think, from my own experience in the last administration 

where there were heightened standards in place for carrying out 

drone strikes—again, these are typically—I am thinking of strikes 

off of the hot battlefield in places like Yemen or Somalia, not Afghanistan, for example—that the heightened standard of requiring 

a near certainty of no civilians being killed was an appropriate way 

to, as a policy matter, impose a standard that, again, we are in a 

new era of warfare where we are taking legal action outside of a 

hot battlefield. That seemed to me to be both appropriate and actually operationally workable, in my experience under the last administration. 

Mr. DUNCAN. Are we seeking authorization of using airspace 

where drones are flown? 

Mr. OLSEN. I don’t think so. That is more a question probably 

better posed to somebody who is actively operating in the military. 

But my expectation would be no. 

47

Mr. DUNCAN. Right. So I remember at Benghazi the argument 

was made that we didn’t have over flight rules to send in help for 

the guys in Benghazi but yet there was a drone flying overhead 

providing live real-time feed. 

So I am in conflict with whether we had over flight permission 

or not in that instance. Do you care to comment? 

Mr. OLSEN. Well, the only thing I would say, when I think of 

Benghazi, in a successful military operation I think of the apprehension of Abu Khattala in his home on the Mediterranean in 

Benghazi and who is now here in the United States facing trial for 

his role in the Benghazi attacks. That was certainly a very successful military operation which was carried out in combination with 

our law enforcement authorities. 

Mr. DUNCAN. Right. So thank you for that. 

I want to shift gears a little bit and talk about the adequacy of 

current legal authority in the AUMF, and although most would 

agree that the new and updated AUMF would be a good thing, especially because of the signal it would send to our troops overseas. 

I wonder about the legal authority, and General Dunford recently 

said that, let me see, I don’t have the date for that—‘‘We were relying on the 2001 AUMF. What I have said is that we have all the 

legal authority that we need right now to prosecute al-Qaeda, ISIS, 

and other affiliated groups even though they are not ISIS, as mentioned.’’

Do you agree with the assessment of both the Obama and Trump 

administrations that the 2001 AUMF provides, in the words of 

General Dunford last month, ‘‘all legal authority that we need right 

now to prosecute al-Qaeda, ISIS, and other affiliated groups?’’

General. 

General GROSS. Sir, I like to say adequate legal authority but 

that is probably mincing words. I mean, it provides legal authority. 

As a lawyer, when I advise a commander you talk about the 

amount of legal risk and the amount of legal clarity, and in a case 

where a law is very clear and it is bright line, you can say that 

absolutely this law applies. 

If the speed limit is 25 miles an hour, I can say that you’re going 

25 absolutely you are complying with the law. On the other hand, 

if the law says you must drive a reasonable speed for the conditions and if someone says, I am driving 25, does that comply with 

the law? Maybe. 

And then you identify the legal risk and you say the conditions 

are this and that. And so in this case, I think we can say that the 

2001 AUMF is adequate to provide legal authority for going against 

ISIS on its own terms. It doesn’t say ISIS. It says al-Qaeda, 

Taliban, and organizations, et cetera, and you have that language. 

And so as we made the determination that ISIS was a follow-on 

successor, really the same organization as al-Qaeda in Iraq and 

had never cut that tie, then we felt like that was adequate to provide the——

Mr. DUNCAN. ISIS and al-Qaeda would argue with you over that 

but——

General GROSS. Well, and again, that is where the legal risk 

comes in. You could imagine reasonable minds disagreeing with 

that and saying——

48

Mr. DUNCAN. So we have advisors and maybe limited combat 

troops in Syria right now, or western Iraq and possibly Syria. I am 

extrapolating from what I read in the news. Does the AUMF cover 

countries like Syria? 

General GROSS. It doesn’t mention countries, sir. 

Mr. DUNCAN. Right. 

General GROSS. It mentions, you know, who——

Mr. DUNCAN. Groups. 

General GROSS [continuing]. Enemy groups. 

Mr. DUNCAN. Right. 

General GROSS. And so if you were conducting operations——

Mr. DUNCAN. Do you think that is wherever they crop up? 

General GROSS. Well, there is no geographic limitations in the 

2001 AUMF. There are other sources of international law and domestic law that provide constraints and restraints on issues like 

violating another country’s sovereignty and things like that. So 

you——

Mr. DUNCAN. So I am going to use a total hypothetical here—and 

the press is covering this. This is totally hypothetical. 

But let us just say that Abu Sayyaf terrorists evolved into an 

ISIS organization in the Philippines. Does the AUMF authorize the 

United States to go there to fight that ISIS-affiliated group? 

General GROSS. I don’t know, and that would be one where you 

would have to examine the intelligence, examine all the facts that 

you have at hand. 

You would have to decide or make a legal determination if they 

can be considered an associated force of al-Qaeda or the Taliban. 

What we don’t know—one of the uncertainties is, we have always 

determined as a legal matter that an associated force of al-Qaeda 

or a group that is part of al-Qaeda would fall under the AUMF. 

I don’t know that we have ever looked at an associated force of 

ISIS, and whether or not they have done that since I left I don’t 

know and I can’t recall whether we looked at that. 

And so now you are starting to get more and more attenuated 

and so the legal risk raises that you may say, yes, this falls within 

the AUMF but reasonable minds can disagree and a court or someone else may say no, that wasn’t what we intended with that law. 

My——

Mr. DUNCAN. So just—I agree—so just a last question. My time 

has expired. The Houthis in Yemen—are they an ISIS-affiliated 

group? We have had military strikes there. I am just asking. 

General GROSS. I don’t know enough of the current intelligence 

and facts about that. 

Mr. DUNCAN. Just trying to get my head wrapped around what 

this AUMF covers, what it may not cover, and going forward what 

we might need to include for potential future threats. 

General GROSS. So the current AUMF as it has been interpreted 

by the administrations, you would have to look at whether or not 

they are an associated force—and we have a definition that we 

have used for associated force—must be both an organized armed 

group that has entered the fight alongside al-Qaeda and a co-belligerent with al-Qaeda in hostilities against the United States or its 

coalition partners. 

49

That is the definition of associated force that the previous administration adopted and used and that is what I used as my working 

definition for legal analysis. 

I don’t know what the current administration or the current lawyer on the joint staff is using. But I can’t imagine that has changed 

significantly. 

Obviously, Senator Flake and Kaine have put their own definition in their proposal, which defines associated force, and if enacted 

that would become the definition you would use to analyse that. 

Mr. DUNCAN. I thank you for that. 

And I will now go to Mr. Bera. 

Mr. BERA. Thank you, Mr. Chair. 

You know, our founders in the design of our country really laid 

out a brilliant design. But part of that brilliance was a separation 

of powers giving, very clearly, Congress in Article 1 the ability to 

declare war; giving the Commander in Chief, our President, the 

ability to execute on those plans. Doesn’t seem ambiguous. 

But as we are having conversations here, the current AUMF is 

rife with ambiguity in there, and I think it is consistent. Just listening to each of the witnesses, I think each of you is consistent 

that it would be appropriate to update the AUMF. Is that correct? 

And I think just listening to my colleagues on both sides of the 

aisle we also think it would be appropriate to update the AUMF. 

Now, there is recognition it is not going to be easy. It is going 

to require vigorous debate. It is going to require, you know, talking 

to our military commanders, talking to the executive branch. 

But we owe it to our men and women who are making that ultimate sacrifice to their families to clear up this ambiguity—to give 

them a clear sense that the American people are with them—to 

give them a clear sense of what their mission is. That is our job 

as Members of Congress. 

I would argue we are not doing our job by not having the courage 

to engage in what are not easy conversations. But that is what we 

ought to do. 

I guess I will ask you, General Gross. By having that debate, by 

giving clear definitions, removing some of the ambiguity, that 

sends a message to our troops, does it not? 

General GROSS. Yes, sir. 

Mr. BERA. So we ought to and, again, we shouldn’t do the easy 

things. The American people expect us as their representatives to 

engage in the necessary things and it is pretty clear from the discussion and dialogue that updating this AUMF that is 16 years old 

is absolutely necessary, particularly given that the majority of us, 

as Members of Congress, weren’t here when this AUMF was authorized. 

So if we are actually going to do it, many of you have referred 

to the Flake-Kaine amendment and framework as a potential starting point. 

I guess starting with you, Mr. Olsen, would that be a reasonable 

starting point if we were to debate this? 

Mr. OLSEN. I do think that is a reasonable starting point. If I 

could just go back to your introductory comments about the current 

ambiguity. 

50

I think it is worth pointing that, again, the AUMF that we are 

operating under now actually mentions no groups. It doesn’t mention al-Qaeda. It doesn’t mention the Taliban. 

It talks about those organizations and individuals responsible for 

the attacks of 9/11. So it is tied to a particular heinous act of terrorism which occurred 16 years ago. 

So as you get to groups like Abu Sayyaf or the Houthis, whether 

they are tied to other groups, you get into this area of extreme ambiguity and that is why I think you hearing from this panel a consensus view, as you expressed, of support for updating the AUMF. 

So yes, and I do think that the Kaine-Flake bill is a sensible starting point for that discussion. 

Mr. BERA. General Gross. 

General GROSS. Yes, sir. I think it is a good starting point and 

I know in particular Senator Kaine has been a deep thinker on this 

issue and I can remember talking to his staff years ago about this. 

So he has given it a lot of thought. 

Mr. BERA. Judge Mukasey. 

Judge MUKASEY. I agree that it is certainly a sensible starting 

point as long as we remember that it is a starting point and that 

it is going to need the debate that you referred to. 

But certainly it is a good place to start and some of the comments that were made today about, for example, adding groups on 

either an approval or disapproval basis is something that ought to 

be considered. 

Mr. BERA. So, again, we have a starting point, and I am not suggesting that it is the end point. It is the starting point of a debate 

that we ought to have, that the American people expect us to have 

and, most importantly, that we owe to our troops—our men and 

women and their families. 

There is no greater responsibility that we have when we send 

someone’s son or daughter, mother or father, husband or wife, into 

harm’s way and, again, I feel that this body owes it to them to have 

that debate. 

Also, when we talk about a sunset provision, from my perspective 

that is not an expiration date. That is a forcing function to have 

this body evaluate where we are, update and refresh and perhaps 

end an AUMF but also perhaps reinforcing an AUMF. 

And is that the right interpretation when we are talking about 

sunset provisions? 

General GROSS. Sir, except that—I mean, I think by its own 

terms, at least for the Flake-Kaine bill, it expires at the end of that 

5-year period if Congress hasn’t acted. 

And so I think that risk of uncertainty in particular with, for example, detainees who are currently held, that the authority could 

lapse to hold them and therefore you have to look at that. 

Ongoing operations that were being conducted under that AUMF 

arguably would expire and then, you know, that would set off a debate. 

So, if there were to be a sunset provision, and I am not taking 

a position one way or the other. I am just pointing out different 

pros and cons, if you will. There might be ways to design language 

such that the AUMF expires but there’s a tail of authority that surVerDate 0ct 09 2002 16:41 Sep 29, 2017 Jkt 000000 PO 00000 Frm 00054 Fmt 6633 Sfmt 6633 Z:\WORK\_FULL\072517\26424 SHIRL
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vives that would allow detention for a certain period of time or ongoing operations or et cetera. 

Now, I don’t know how to write that but I know you all have——

Mr. BERA. But, again, that is our job, right? 

General GROSS. Yes, sir. Exactly. 

Mr. BERA. Thank you. I will yield back. 

Mr. DUNCAN. Gentleman’s time is expired. 

The Chair will now go to Mr. Perry from Pennsylvania for 5 minutes. 

Mr. PERRY. Thanks, Mr. Chairman. Thanks, gentlemen. General 

Gross, thanks for your time and uniform service. 

Gentlemen, you all referenced the Flake-Kaine legislation, and I 

should be familiar but I am not. But can you tell me if it identifies 

the enemy or an enemy by name? 

General GROSS. Yes, sir, it does. 

Mr. OLSEN. It does. I can tell you, it identifies ISIS, al-Qaeda, 

Taliban, and their associated persons or forces. 

Mr. PERRY. All right. So it seems to me, and I have had an 

AUMF that I have offered in the past and I have one sitting right 

in front of me that I have offered again this session, which seems 

somewhat analogous to the ones that Mr. Flake and Mr. Kaine 

have authored, or offered. 

But I feel like we are lacking in identifying correctly the enemy 

and that has been my frustration because the enemy keeps changing, whether its name, whether its affiliations. 

We are attacking ISIS now under the provisions of some associate with al-Qaeda when they both eschew one another at least in 

name even though they have the same eventual ultimate goal. 

And then you have the myriad list of different actors, which ebbs 

and flows and changes on a regular basis. Mine determines that 

the enemy and the use of force would be against Islamist extremism, which seems to be whether you determine that is fundamentalism, the strict following of the Koran by generally Sunni groups 

as opposed to Shi’a or something else. It seems to me that that can 

be described that way and cover all these groups, and I go on further. 

I include, of course, al-Qaeda and ISIS, AQAP, AQIM, alShabaab, Boko Haram, al-Nusra, Haqqani, the Taliban, Houthis, 

Khorasan, Hezbollah, and then I put substantial supporters, associated forces, or closely-related successor entities. 

Now, I, too, agree, obviously, since I have authored this that we 

need to refresh this and we need the American people’s and Congress’ involvement in it. 

I would take some issue with the time frame. As a person who 

has been privileged to serve in uniform as well, I just see that as 

an opportunity for opposing forces to use that to be victorious when 

we cannot. 

And I don’t know how you have a time frame imposed and then 

say, well, we are going to refresh this and we are going to get the 

will of the American people but then we are going to continue operations while that is occurring. I don’t know how you skin that cat, 

quite honestly. 

As a former military commander, you have to have the latitude 

to fight the battle and if there is going to be a time frame, a limitaVerDate 0ct 09 2002 16:41 Sep 29, 2017 Jkt 000000 PO 00000 Frm 00055 Fmt 6633 Sfmt 6633 Z:\WORK\_FULL\072517\26424 SHIRL
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tion on that—at the same time, I don’t think this should be forever 

but that is not our choice. 

We have an enemy and they get a vote, as we all know, right. 

We always say no plan survives first contact, right. The enemy gets 

a vote. 

And so let me ask a very pointed question because I am looking—General Gross, you would name ISIS. Mr. Mukasey, you 

would say that it should be as broad as possible and, Mr. Olsen, 

you say all necessary and appropriate force. 

I think mine is fairly broad. I know it mentions all necessary and 

appropriate. I only mention ISIS as one of the co-conspirators 

under the guise of Islamist extremism. 

With that, is there a problem with using Islamist extremism? Is 

there a problem with that phraseology, number one? And number 

two, regarding Guantanamo Bay in particular, how do we make 

sure that we are inclusive of those detainees? 

I think you touched on that a little bit. But under the context 

of this language, what could I be missing? What do I need to know? 

Mr. OLSEN. Well, I would say, respectfully, that your approach 

would be over broad. In other words, identifying the enemy by a 

belief system, essentially. 

Extremist Islamists would not be sustainable and it would be essentially an open-ended war with people who have a particular——

Mr. PERRY. Who have an open-ended war with us right now and 

change their names on a regular basis and their affiliations and 

their geographic locations. 

Mr. OLSEN. Again, respectfully, your suggestion would be based 

on someone’s viewpoints and, obviously, that would be quite extraordinary in terms of our history to identify an enemy by those 

terms and I think unprecedented. So I would not recommend that 

approach. 

I do think there is the opportunity to identify groups, to use 

international law principles to identify those associated with those 

groups is—again, we are talking about the most extreme use of our 

nation’s capabilities—that is, use the military force—and therefore 

should be reserved for those circumstances against those groups 

who do pose the most significant threat to us. 

So I would not recommend an approach as broad as you have 

suggested. 

Mr. PERRY. Gentlemen? 

Judge MUKASEY. There is one additional problem there and that 

is you identify this as extremism. There are people who believe 

that the literal interpretation of the Koran, even to the point where 

it involves people crashing airplanes into buildings to bring down 

Western civilization, is not an extremist view—that it is a mainstream view. 

We shouldn’t have to get into that debate. I think it is much 

safer to identify particular groups and their affiliates and go after 

them. 

How Islamic society generally deals with extremism or our view 

of what constitutes extremism is really up to them. It is not, I 

think, subject to a military solution. 

Mr. PERRY. Can I have the general answer? 

53

General GROSS. Sir, where I struggle with this is I look at an authorization for use of force as a response to an enemy who has attacked us—an organized armed group. And therefore there is some 

value in identifying by groups as enemy combatants as opposed to 

the Islamist extremism. 

Without having the opportunity to look at your proposal I don’t 

know how I would define that. I would have to have some guidance 

if that were the law to help me advise a commander on who fits 

within that or who doesn’t. 

So it would need to be fleshed out. It does seem to be a bit 

broad—I mean, just speaking frankly. 

The language I do like that I don’t see in the Flake-Kaine bill 

is the successor language. I think that is important. I know that 

has been in previous proposals. 

Mr. PERRY. And it is mine as well. But I——

General GROSS. Yes, and I don’t see it in this one that would 

allow—if al-Qaeda or ISIS or another group changed to a different 

organization I don’t know how we would treat that under this. 

Mr. PERRY. Thanks. 

I yield. 

Chairman ROYCE. Thanks, General. 

We go to Gerry Connolly from Virginia. 

Mr. CONNOLLY. Thank you, Mr. Chairman, and welcome to our 

panel. 

Mr. Olsen, Article 1 Section 8 of the Constitution states Congress 

shall have the power to declare war and to raise and support armies and other armed forces. 

Article 2 that follows that, Section 2, designates the President 

shall be Commander in Chief of the nation’s armed forces. 

Do you think those are ambiguous or vague declarations in the 

Constitution in terms of the enumeration of powers? 

Mr. OLSEN. No, and I think, as other members of the committee 

have pointed out, it does strike me to be a particularly wise approach that our Framers imposed in terms of separating powers. 

Mr. CONNOLLY. But you said the consistent failure of Congress 

to act erodes congressional authority relative to the executive when 

it comes to war powers. Are you contending that the failure to act 

here in Congress over many decades has in fact compromised the 

language in the Constitution with respect to Congress’ power to declare war? 

Mr. OLSEN. No. 

Mr. CONNOLLY. Okay. 

Mr. OLSEN. No, I do think that over the past 16 years that Congress’ failure to update the AUMF has allowed the executive 

branch, or really required the executive branch, to undertake interpretations of the AUMF that have been, as a result, controversial. 

Mr. CONNOLLY. So are there implied powers in Article 2 Section 

2 with respect to the role of Commander in Chief or the President? 

I mean, not as enumerated——

Mr. OLSEN. I am not a constitutional scholar but I do believe that 

there certainly would be implied powers under the Commander in 

Chief authority under Article 2. 

Mr. CONNOLLY. And almost every Commander in Chief has so 

claimed, going back to James K. Polk. 

54

Mr. OLSEN. I defer to your expertise on that question. 

Mr. CONNOLLY. Okay. 

Mr. OLSEN. That sounds right. 

Mr. CONNOLLY. Right. Although as recently as Franklin Delano 

Roosevelt, people forget he asked Congress to declare war against 

Japan after Pearl Harbor. He did not ask Congress to declare war 

against Germany and Italy. 

He waited until Hitler, several days later, declared war on us—

considered one of his biggest mistakes—and then Congress declared war on Germany and Italy. So Franklin Delano Roosevelt 

still deferred to that Article 1 power before he engaged with Hitler, 

who was really kind of the prime focus of Churchill and FDR. But 

he still deferred to the congressional power. 

So there are implied powers of being Commander in Chief—I got 

to protect the country even if Congress isn’t in session, I got to 

make decisions about troop deployments. I even go further—I actually deploy and kind of notify you later. 

Are there implied powers for Congress in this declaration of war 

power? Do we have implied power? Since the executive claims implied powers, do we have some? 

Mr. OLSEN. I certainly think in the sense of conducting oversight, 

implied powers in terms of not only the authority to declare war 

but also to appropriate funds, there is an implication, certainly, in 

terms of providing oversight over how those funds are used. 

Mr. CONNOLLY. Well, one could argue that what we are debating 

today the AUMF has such an implied power. Because it is not a 

declaration of war but it is an authorization to use force that we 

grant, delegate, to the executive, correct? 

Mr. OLSEN. I think that is correct. 

Mr. CONNOLLY. Does the delegation of such authority ever get 

stale and expire on its own, even if we don’t have a statutory sunset provision? Is it ad infinitum? 

Mr. OLSEN. I would think that the authorization for the use of 

force, unless it is extinguished in some other act of Congress, would 

stay on the——

Mr. CONNOLLY. Goes back to implied powers. Presumably, it is 

implied at some point that the original purpose for the original authorization expires, either through natural causes or over time, 

even if it isn’t enumerated. Now, we are not operating on that principle at the moment but it is worthy of examination. 

Is the War Powers Act constitutional? 

Mr. OLSEN. I would defer to Judge Mukasey on that question. 

Yes. 

Mr. CONNOLLY. Judge Mukasey. 

Judge MUKASEY. No. 

Mr. CONNOLLY. No. So there we go again. Here is somebody representing the executive branch who decides they have all kinds of 

implied powers and, oh by the way, they get to enumerate whether 

our statutory expression of our powers in Article 1 are constitutional and they get to cherry pick what they will and won’t abide 

by. 

And I would contend, with respect, that there are serious implied 

powers in Article 1 and that it is not the purview of the executive 

branch to determine on its own the constitutionality of any cirVerDate 0ct 09 2002 16:41 Sep 29, 2017 Jkt 000000 PO 00000 Frm 00058 Fmt 6633 Sfmt 6633 Z:\WORK\_FULL\072517\26424 SHIRL
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cumspection or circumscribing with respect to the Commander in 

Chief’s powers. That is why it is Article 2, not Article 1. 

My time has expired. 

Chairman ROYCE. Thank you, Mr. Connolly. 

We go to Adam Kinzinger of Illinois. 

Mr. KINZINGER. Well, thank you, Mr. Chairman, and thank you 

all for being here and bearing with us. It is really important. 

What Mr. Connolly was saying, I think it is essential to remember that I think when our Founders were writing the Constitution 

they understood that you cannot have 535 commanders in chief because we never agree with anybody. 

We can debate things and everything else but the reality is when 

it comes to making decisive decisions overseas, time-reactive decisions, destroying an enemy, that is—can only be invested in one 

person and that is the President of the United States. 

I actually would agree with the judge. I am not sure that the 

War Powers Act would pass the constitutional test. But our power 

is to simply declare, I believe that a state of war exists as enumerated in the Constitution and then we can have power through appropriating money, et cetera. 

I was very concerned when a colleague of mine attempted to basically withdraw the current AUMFs out of provision because, as 

was discussed a little earlier, I fear that that would have immediately—I mean, if we believe that we can debate and pass a new 

AUMF in 6 months, I want to point to sequester and some of these 

other things in Congress that we have taken up to the time limit 

and actually not been able to successfully compel us to an answer. 

And I would hate to think that—so I am an Air Force pilot—I 

would hate to think that my colleagues would one day wake up and 

not have the legal authority to destroy our main enemy and that 

is, frankly, what we would run into. 

I do support a new AUMF in the current construct where we are 

at, but I don’t think there can be any time limit on it and there 

can be no limitation on what the President can do because that 

makes us Commander in Chief. 

And I think what is being missed in all of this is ISIS—yes, ISIS 

is an enemy. This is a generational fight that we are in against terrorism. 

This is not just about destroying troops on the battlefield now, 

which is extremely essential to do, but this is about understanding 

that hard and soft power come into play here and that this military 

fight, I truly believe, will be going on for the rest of my life to some 

extent. 

And so the 7- and 8-year-olds in the refugee camps today are the 

ones we need to be focussing on to deny ISIS or the next generation 

of ISIS or whatever we call them their ability to recruit their next 

recruits. 

So, General, I want to ask you, you know, as I mentioned, I supported——

Mr. CONNOLLY. Would my friend yield? 

Mr. KINZINGER [continuing]. I supported—yes. 

Mr. CONNOLLY. Real briefly. You know I respect you. I would say 

that what you have just enumerated is unlimited power delegated, 

in my opinion, unconstitutionally, to the executive. 

56

You took issue with the expression of our power and the War 

Powers Act being constitutional or not. What you have just said, 

if we acted on would be an unprecedented delegation of power to 

the executive——

Mr. KINZINGER. Well, I—with respect——

Mr. CONNOLLY [continuing]. Virtually conceding our war powers——

Mr. KINZINGER [continuing]. With respect, and I appreciate that. 

Mr. CONNOLLY. I thank my friend for yielding. 

Mr. KINZINGER. I appreciate that. But I believe that when you 

put 535 Members of Congress into the Commander in Chief seat 

and you state you have an enemy—we have an enemy right now, 

which is terrorism. 

So we give the President the authority to destroy terrorists and 

we can’t put a time limit on it because we don’t know how long it 

is going to take. 

It is the internally-displaced refugees now that are prime recruiting ground if we don’t give them hope and opportunity. 

So, General, just to ask you, if we tie the hands of the President 

and the military by putting restrictions in the AUMF or we sunset 

the provision, do you think that will have negative repercussions 

on the overall fight in this war? 

General GROSS. Well, yes, sir, it could. It depends on what those 

restrictions are. For example, if you put a 5-year sunset on it, it 

certainly wouldn’t restrict operations for the first 4 years and 364 

days. 

But then if there is not a new AUMF in place to replace it, then 

if it sunsets and expires then that would create issues. 

If you wrote in provisions, I mentioned some examples in my testimony—for example, a no boots on the ground or no enduring 

large-scale combat—then those restrict the ability of the President 

and military commanders to plan and they would have to plan operations that were consistent with the AUMF and it might take options off the table that they needed. 

Mr. KINZINGER. And one of the things you know, General, as I 

do, as everybody here does, no plan survives the first contact with 

the enemy. 

So you never know what you need or what you don’t need. And 

so our job through the construct of the War Powers Act, which 

hasn’t been thrown out by the courts so I accept it, is to give the 

President the authority to declare war on our end, to say that a 

state of war exists, and give him the authority to do what he needs 

to do. 

Judge, I know you talked about this earlier. I wasn’t here and 

I apologize, so maybe you are repeating yourself. But can you talk 

about what would happen the moment these current 2003 and 

2001 AUMFs are rescinded? What would be the legal implications? 

Judge MUKASEY. Well, I think questions would be raised principally about detention since that is where the rubber meets the 

road. 

As far as ongoing military operations, obviously, there would be 

a debate about that. There would be uncertainty about that. 

But although the discussion before began the analysis of Article 

2 powers at Section 2, I would go back to Article 2 Section 1, which 

57

begins with the words ‘‘the executive power shall be vested in a 

President of the United States.’’

It doesn’t say, all except a little bit of it. Doesn’t say, these particular instances of it. It says, the executive power. That means all 

of it. 

Mr. KINZINGER. Thank you. 

I yield back. Thank you. 

Mr. YOHO. [presiding]. The Chair now will recognize Ms. Kelly of 

Illinois. 

Ms. KELLY. Thank you, Mr. Chair, and welcome to the witnesses. 

In addition to granting military authority to the President, this 

bill would also require the President to send Congress a comprehensive strategy to defeat ISIS. 

But as we know, the U.S. fight against ISIS is not just military. 

It is political, it is economic, and diplomatic. 

How will the President’s strategy address the economic and political pressure needed to defeat ISIS and to prevent successor uprising? Whoever wants to answer. 

Judge MUKASEY. Obviously, that would be up to each President 

to respond to. Since this is an authorization for the use of military 

force, I think the sense is that the strategy indicated here is a military strategy. 

But I certainly agree with the implication of your question, which 

is that it is going to take a lot more than simply military strategy 

to do it and that is something we are going to have to resolve more 

broadly in the political debate that we have and in the way that 

the Congress authorizes the activities not only with the military 

but also, for example, with the State Department and other entities 

that carry on the fight in other forums. 

Mr. OLSEN. I would just suggest that your question does raise an 

important point, as Judge Mukasey said, and that is that including 

a reporting requirement in an AUMF would enable Congress to actually have the opportunity to review the military strategy—again, 

not substituting its judgment for the executive branch on how to 

execute the war but actually being able to review the strategy and 

thereby exercise, I think, Congress’ appropriate role under the Constitution. 

Ms. KELLY. Okay. Thank you. 

How do you feel or what provisions do you feel should be included in an AUMF dealing with, like, cyber terror—I mean, wars 

not fought in the same exact way anymore and what do you think 

about that? 

General GROSS. Well, ma’am, you know, the provision in the current AUMF that is reflected in the Flake-Kaine example, and I believe Mr. Perry’s—as he mentioned as well, his proposal talks 

about all necessary means or language similar to that. And that 

would include, I think, cyber authority subject to other laws and, 

as I mentioned in my opening statement, there’s always other 

laws—international law, other domestic law, U.S. policy, et cetera. 

So the AUMF alone might give authority that there might be some 

other source of law that might restrain or constrain in some way. 

But we would look to all of that, or they would look to all of that, 

as they analysed a particular operation to see, is this a lawful 

58

enemy under the AUMF? If so, is this a lawful means of force to 

use against that enemy in this setting. 

Ms. KELLY. Anybody else? 

Mr. OLSEN. No, I would just agree with General Gross on that 

question. I think that is the right answer. 

Ms. KELLY. And believe it or not, I yield back the balance of my 

time. 

Mr. YOHO. Thank you. 

The Chair will now recognize Mr. Brian Mast of Florida. 

Mr. MAST. Thank you, Chairman. 

General Gross and Mr. Olsen, you have both spoken extensively 

about the who as the most critical part of the AUMF. General, you 

said who was most critical and you actually said how was the most 

problematic piece of everything you listed. Mr. Olsen, you said of 

the three things you listed that Congress should consider you said 

who as the first one that you’d mentioned so take that at a priority 

list. 

So I want to talk to you both a little bit about how you determine 

who—get to the bottom of that a little bit, and who we should be 

considering. 

Not to use who too many times, but do you think that we should 

be considering those who conduct acts of terror? Rapid fire this if 

you want. 

Mr. OLSEN. As an initial question, yes. You want to look at who 

poses that degree of threat to us. I think that is a starting point. 

I don’t think that is the dispositive question in any sense. 

Mr. MAST. I take your head shaking as a yes? 

General GROSS. Yes, sir. As I was telling Mr. Perry, I think you 

start with the premise that this is a response to an act of armed 

conflict—an act of war. 

And so as we look, and I will use the word enemy—as we look 

to define who is the enemy that Congress and the President have 

decided to use the military element of power against. 

And so there are numerous terrorist groups all over the world 

but they may not be an enemy in the sense that they have opened 

up armed conflict against the United States and therefore it 

wouldn’t be, in my view, appropriate to add them to an AUMF. 

Really, an AUMF——

Mr. MAST. Considering whether it was on U.S. soil, a U.S. Embassy, a U.S. warship, some other threat oversea somewhere? 

General GROSS. All of those are threats to the United States—

yes, sir. 

Mr. MAST. What about those who conduct acts of genocide—

Bashar al Assad, somebody else? Somebody conducting an act of 

genocide against their people. Should that be somebody, in your 

opinion, that we should consider in an AUMF? 

Mr. OLSEN. Again, I think the reference must be made to whether this is an act of armed conflict against the United States and, 

again, there are other sources of law—international law, Article 2 

authority, a backdrop Article 2 authority—for the President to take 

steps in the absence of an AUMF to protect the country. I 

think——

Mr. MAST. And you advocate primarily or only for those that 

have conducted some sort of kinetic action against the U.S.? 

59

Mr. OLSEN. Again, certainly, as a starting point, and then the 

question is, are we in an active armed conflict with a particular 

group before I think it would be appropriate to include them in an 

AUMF. 

Mr. MAST. Would either of you look at an AUMF for those that 

have conducted cyber terrorism—a nonkinetic action? 

Mr. OLSEN. So I think—again, if I could just answer a little bit 

more fulsomely, I think there is a risk in looking at every threat 

through the lens of an AUMF and deciding that we want to use 

military force against that threat. 

There is a whole range of options that the government has 

whether it is a cyber threat, whether it is a humanitarian question 

or issue. 

There are lots of things the government has the ability to do that 

are short of the authorization for the use of force against that particular threat or group and I think that it is appropriate to reserve 

the use of an AUMF only for those groups that rise to the level of 

posing a threat that is an active armed conflict against the United 

States. 

Mr. MAST. Okay. General, when we are considering, as Members 

of Congress, an AUMF, do you think we should be looking at the 

extent of military force that would be needed to bring us to victory 

or bring us to success? 

Should that be a consideration? Should we be looking at whether 

it could lead to only conventional weapons or nuclear weapons or 

expected casualties—KIA? Should that be a consideration for us 

when deciding an AUMF? 

General GROSS. Sir, are you saying a consideration of the other 

side’s capabilities or our capabilities? 

Mr. MAST. If it could lead to nuclear war, should that be something we should consider or the amount of KIAs that we could expect as a result of a use of military force—should that play a role 

in our decision as Members of Congress for an AUMF? 

General GROSS. Well, I would think you would consider all factors involved with such an important and serious step. As you consider whether or not to authorize armed conflict, authorize the use 

of military force, I would hope all those considerations would come 

into play because it is a serious decision to authorize military force 

against another entity whether that is a nation, an organization, 

a group, a person. It is a big step. So I would hope yes. 

Mr. MAST. So then I would ask, do you think that Members of 

Congress should have access to the operation’s orders that exist out 

there with the Department of Defense—the war plans—when we 

are considering an AUMF—you know, the mission, the commander’s intent, the center of gravity, disposition of forces both allied and those that we consider aggressors? Should we have access 

to operation’s orders? 

General GROSS. I don’t know. It depends on how far down. I 

mean, I know that there are regular reporting requirements. I 

know we came over frequently to both the Senate and House 

Armed Services Committees and by invitation to other committees, 

although that is within your jurisdiction and I don’t fully understand that, to be clear. But I do know that we make a wealth of—

or made a wealth and they still do, I assume—a wealth of informaVerDate 0ct 09 2002 16:41 Sep 29, 2017 Jkt 000000 PO 00000 Frm 00063 Fmt 6633 Sfmt 6633 Z:\WORK\_FULL\072517\26424 SHIRL
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tion available. At what level that becomes appropriate, how far 

down, not because we are hiding anything but just that the amount 

of stuff you would see. 

So if we are talking wave top, large-scale campaign plans against 

nation-states, that might be informative for you all if we are talking about a battalion’s operation order to conduct a particular objective in Afghanistan in a district. It seems like that might be 

below the level where Congress ought to be focused, in my opinion. 

Mr. MAST. My time has expired. I thank you for your comments, 

gentlemen. 

Mr. YOHO. I thank the gentleman from Florida. 

We will now go to Mr. Schneider from Illinois. 

Mr. SCHNEIDER. Thank you, Mr. Chairman, and I want to thank 

the witnesses for not just your service to the country but your generosity with your time and insights today. It is very much appreciated. 

As others have said, I agree with the consensus that it is long 

overdue that this body has had the debate that there is clearly a 

need for an updated AUMF. So I thank you for that. My colleague 

from Illinois indicated—I don’t want to misquote him but it was—

essentially, I believe he said simply that Congress simply has the 

power to declare a state of war exists. But, in fact, the last declaration of war was World War II. We are operating currently under 

an AUMF, something that is distinct, issued in 2001. Maybe just 

briefly if you could indicate the difference between an AUMF and 

a declaration of war. 

General GROSS. I will take a first stab, sir. Again, not a constitutional scholar but I have heard other people who speak on this. 

First of all, we have only declared war five times and the last time 

was World War II. You all have only declared war five times. And 

there is some thought that perhaps that is reserved for nation-state 

on nation-state traditional international armed conflict—that you 

wouldn’t declare war in a setting where—now, that doesn’t talk 

about Korea or Vietnam, which were both nation-states. 

There is some thought that a declaration of war is—I am being 

careful with my words—is perhaps with the passing of the U.N. 

Charter, which is an attempt to outlaw offensive war—in other 

words, declaring war on another nation without some justification 

of self-defense or so forth—that perhaps declarations of war are no 

longer something nations do since the passage of the U.N. Charter. 

To my knowledge, there hasn’t been a declaration of war since 

World War II. 

Mr. SCHNEIDER. Right. And I am going to reclaim my time just 

because it is limited. But same with you, General Gross. In your 

testimony, you talked about within an AUMF it establishes definitions. It creates parameters, as you laid it out as the why, the who, 

what, when, where, how questions, and those parameters distinct 

from what we are talking about with a declaration of war, I guess 

turning to the whole panel, is it within the authority of Congress 

to establish parameters of how we engage, where we engage, who 

we engage? 

Judge Mukasey. 

Judge MUKASEY. How? I don’t think so. 

61

Again, Article 2 Section 1 begins with, the executive power—all 

of it. Deciding how we should exercise an authority that Congress 

says the President should have, I think, is an invasion of that executive authority. 

Mr. SCHNEIDER. General. 

General GROSS. Yes. As not being a constitutional scholar, I 

would say that you would have to look at the specifics and see 

whether or not that rose to the level of a conflict between the executive and the legislature. But I certainly think it is within the parameter of Congress to draft and enact an authorization for use of 

military force. 

Mr. SCHNEIDER. Mr. Olsen. 

Mr. OLSEN. In preparing for this hearing, looking at the case law 

on this particular question, I do think that the law supports Congress’ authority to impose some limitations on the types of activities that can be undertaken by the executive under a grant or authorization for the use of force. Again, there are serious policy judgments about where to draw the line between Congress and the executive branch and how to execute a war. But I do think that the 

law supports an appropriate role for Congress in setting some limits whether it is occupying territory or extensive use of ground 

forces. 

I think the law is clear that Congress has authority to impose 

those limitations on the executive branch. 

Mr. SCHNEIDER. And my understanding, just for clarification, all 

of you have said you support the idea of an AUMF having a sunset. 

Is that correct? 

Mr. OLSEN. Yes, from my part. 

General GROSS. I didn’t take a position either way. 

Mr. SCHNEIDER. Okay. 

General GROSS. I just point it out. 

Mr. SCHNEIDER. All right. To the extent that sunset is a parameter, would there be circumstances beyond time that would suggest 

it should come back to Congress to review a change? We have 

talked about the morphing of organizations. They can change their 

names. They can change their geography. But if it morphs into a 

completely different dynamic, are there times where an AUMF 

reaches a limit where it should come back to Congress to review 

and refine? Judge. 

Judge MUKASEY. Again, that is a policy choice rather than a 

legal choice and it is up to this body to decide whether an unlimited piece of legislation ought to come back to be limited or to be 

reconsidered. 

Mr. SCHNEIDER. And I asked the question—let me state it in a 

specific context. As we look and are considering a refined AUMF, 

going forward, we have a conflict taking place in Syria now. It has 

multi facets to it. It is going to change many times over from the 

time whatever we decide to the time we get to whatever hopeful 

conclusion we achieve a peaceful—what I ultimately believe will be 

a non-military solution. But I am concerned that there will be a 

moment in that conflict that we need to ask ourselves, again, questions—how far do we go? 

And my time has expired but if the panel wants to touch on that 

at all, I would welcome that. 

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Mr. OLSEN. If I may, just very briefly, because I do agree that 

the situation in Syria, as complicated as it is, highlights the need 

for clarity with respect to the use of force and I do think that you 

are correct in the Congress’ authority to set parameters and to require whether it is an approval or a disapproval process some 

mechanism for reviewing the expansion of authority whether it is 

to new groups or new geographic areas such as new countries and 

I think Syria is a prime example of why that is a prudent thing 

for Congress to do. 

General GROSS. And I would just add, by necessity I never think 

of a single conflict just because it is inside a country. 

There are multiple conflicts going on inside Syria and so if something happened that the United States was no longer acting within 

the authority of its AUMF and found itself acting against another 

enemy, whether that was a nation-state or some other organized 

armed group, then we would need to have some domestic legal authority for that conflict separate from the one with ISIS. 

Mr. YOHO. Thank you for your response. 

Mr. SCHNEIDER. Thank you. I am over time. I appreciate the extended time. 

Mr. YOHO. We will now go to Mr. Garrett from Virginia. 

Mr. GARRETT. Thank you, Mr. Chairman. 

It is like I live in a parallel universe sometimes when I am in 

this town. Daniel Patrick Moynihan, who I hold in high regard, 

once suggested that you are entitled to your own opinions but not 

entitled to your own facts, and Vandenberg famously said that politics should stop at the water’s edge. But when I listen to my esteemed colleague make his introductory remarks where he said he 

is ‘‘not clear on the administration’s plans to deal with ISIS and 

how it differs from the last administration, if it does,’’ I thought, 

where am I? 

So I am going to use such hard-line conservative sources as the 

Huffington Post, CNN, and the Atlantic to try to address his concerns and inability to differentiate. 

On June 8th of this year, CNN said, ‘‘Iran calls Trump’s ISIS response repugnant.’’ I don’t think the Iranians criticized the last administration so vociferously. 

On June 29th, Huffington Post said, ‘‘U.S.-supported forces retake Mosul.’’ The Atlantic, on May 20th, said, ‘‘The scramble for a 

post-ISIS Syria is beginning.’’

And ABC News, on July 20th, said, or quoted a former three-star 

general who said, ‘‘It’s simple. We are winning. They are losing.’’

Let us contrast that to the previous administration. ABC News, 

June 29th, 2016, said, ‘‘ISIS 2 years later: From JV team to international killers.’’

November 14th, 2015, CNN said, ‘‘Obama declares ISIS contained’’—the day before the Paris attacks. Newsweek, April 19th, 

2016, said, ‘‘Obama: Mosul will be recaptured from ISIS by the end 

of this year.’’ We know how that turned out. 

And The New Yorker, January 10th, 2017, said, ‘‘During President Obama’s 8 years in office jihadis gained more turf, more followers, and more money.’’

So I wish that my colleague who said he couldn’t differentiate between the policies of the previous administration had looked not at 

63

policies but at results because I think they are relatively easily differentiated. Sorry. I couldn’t help myself there. 

We talked early in this hearing about repealing the AUMF and 

then replacing it. I will submit—and, again, I apologize—I have 

limited time—that that is incredibly dangerous, in my estimation, 

because historically what I think we have learned is that the Article 2 branch will exercise executive authority without authorization 

where they deem it necessarily and candidly, I think constitutionally they almost have a duty to do that. And historically, I 

think it is telling what Andrew Jackson said after the court ruled: 

They have made their ruling—now let us see them enforce it. 

So we have a duty here. I would adopt the comments of my colleague from the other side of the aisle, Congressman Deutch, not 

doing a new AUMF is an abdication of our responsibility and our 

duties and, candidly, unfortunately, it seems that we abdicate more 

frequently sometimes in this body than we act. 

But I think it is our responsibility to review the circumstances 

in light of obvious changes over the course of 16 years and then act 

appropriately to authorize and fund, because that is our Article 1 

responsibility, our Government as it pursues the enemies of this 

Nation and ensures, hopefully, peace and stability, and that is 

prosperity and opportunity for our posterity. 

I would also, however, reference positively the comments that my 

colleague, Mr. Kinzinger, who said, and I will paraphrase, that we 

are at war not with a nation but an idea and that we need to focus 

on that 7-year-old displaced child in a camp somewhere because 

you can’t declare victory against an idea and have it be a fait 

accompli. 

You have to create circumstances where individuals have hope, 

have a pathway to opportunity, because it has been my observation 

that you are much less likely to strap an explosive vest to yourself 

when you aspire one day to be a doctor or a lawyer or a teacher. 

So we need to look to the future but we also need to aggressively 

prosecute those who would do us harm. My fear is that we have 

all too often in the past looked at what the needs of the moment 

were and not looked to the long-term needs. We articulated early 

upon being sworn into office that we should never engage in regime 

change without contemplating just what might fill the vacuum. 

And so specifically, as it relates to Syria, and again, I want to advocate very clearly that we should enact a new AUMF, that we 

should not repeal the existing AUMF until the day after the old 

one goes into effect because creating a vacuum means something 

will fill it. 

But, specifically, as it relates to Syria, everyone knows the horrific acts of Assad but are there—and maybe I am a little bit afield, 

Mr. Chairman—are there any viable entities to run that nation as 

it currently exists on a map who wouldn’t be equal to or worse than 

Syria? 

Jabhat Al-Nusra, Jabhat Fateh al-Sham are essentially co-opted 

by al-Qaeda, right? And then there is ISIS. You have got the 

Kurds, who have no desire to run that country, and the country 

who has no desire to be ruled by Kurds. 

So open-endedly, as we authorize an AUMF and we act in Syria, 

don’t we need to be careful that we don’t create a circumstance 

64

where what follows is worse than—if conceivable, than what we 

have now? 

I will yield back, but that one can be rhetorical but——

Mr. YOHO. Thank you, sir. 

Mr. GARRETT [continuing]. I think I know the answer. 

Mr. YOHO. Appreciate your comments. 

We now go to Mr. David Cicilline from Rhode Island. 

Mr. CICILLINE. Thank you. Thank you, Chairman. 

I want to thank our chairman and ranking member for giving us 

the opportunity to explore this important issue and really thank 

our three witnesses for helping to inform this discussion. 

I am extremely concerned by the escalation of violence in Syria 

in recent months and by the extremely broad and, in my view, incorrect interpretation that this administration has taken of its authority to take military action in Syria. Let me be clear that I also 

had deep reservations about some of the Obama administration’s 

actions in the region, which I voiced openly at that time. 

However, the missile strikes, the shooting down of a Syrian Government plane, and other actions that the Trump administration 

has taken have seriously ratcheted up American military engagement in Syria without congressional input or authorization. 

I know many of my colleagues share my deep concerns and that 

is why more than 60 of them have joined me in sending a letter 

to the President raising their serious concerns about his actions 

and reminding him that the Constitution requires him to seek congressional approval for military actions and I would ask unanimous 

consent that this letter be entered for the record. 

In my view, the 2001 AUMF needs to be repealed and replaced 

by an authorization that is tailored to the threats that we currently 

face, not the threats of almost two decades ago. It is clear that the 

President of any party will use a broad interpretation of the existing authorization to justify their use of military force. It is up to 

Congress to reassert our role and consider a new authorization for 

the use of military force. 

However, let us be clear. This President has presented no strategy for dealing with ISIS, no strategy for ending the brutal reign 

of the Assad regime, and no strategy for engaging with other terrorist threats around the globe. 

And here is my first question—is it not correct that the President 

must come to Congress with a plan, with an actual strategy, and 

then seek congressional authorization for any part of that plan that 

requires the use of military force—that it cannot be done in the reverse when we imagine what the plan is and sort of estimate what 

we think the use of military force would be to support the plan, it 

doesn’t exist. 

So don’t we have to first have a plan and a strategy from the 

President that says, here is what we will do to defeat ISIS and 

here is the force that I need to execute that plan? Anyone disagree 

with that? 

Judge MUKASEY. Yes. 

Mr. CICILLINE. You disagree. Why? 

Judge MUKASEY. Because even declarations of war simply declare 

that a state of war existed. They did not declare how the plan was 

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to be, how the plan was to be executed, what strategy was to be 

pursued, and what any limits were. 

You cannot declare in advance how you intend to achieve a victory. 

Mr. CICILLINE. So, Judge, do you then think that there is no limitation to congressional action with respect to the use of military 

force—that it is simply a declaration of war or not? That Congress 

doesn’t have the ability to limit? 

Judge MUKASEY. No. It can limit as to who is the enemy. 

Mr. CICILLINE. That is it? Not as to——

Judge MUKASEY. It can limit—it can, although the question 

whether it should—limit as to where. 

Mr. CICILLINE. But if in fact Congress has the ability to limit 

who and where and maybe something else, doesn’t it make sense 

that the President of the United States should share with Members 

of Congress what that plan is, what that strategy is, so we can 

make a determination as to whether or not the use of military force 

ought to be authorized? 

Judge MUKASEY. No, because that would mean that we would 

have 535 commanders in chief of the armed forces——

Mr. CICILLINE. No. It would mean we would have Congress——

Judge MUKASEY [continuing]. And the executive power is vested——

Mr. CICILLINE [continuing]. Playing that role of authorizing the 

use of the——

Judge MUKASEY [continuing]. In one person. 

Mr. CICILLINE. Okay. I understand that there is a sense that the 

executive branch should have maximum flexibility in this area. But 

I think most of us understand the American people are very concerned about authorizing a President to take us into another war 

like Iraq and Afghanistan. So in what ways, General and Mr. 

Olsen, do you think Congress can provide a check on the President’s authority to deploy ground troops, which is an issue which 

we hear a lot about from constituents and some sense that we can 

engage in this fight without the use of ground troops? In what 

ways can Congress or should Congress impose limits on the President’s use of military force? 

Mr. OLSEN. I do think there is a very important policy judgement 

for Congress to make here and I, too, think Congress, as I mentioned before, has the legal authority to impose some restrictions 

along the lines of, for example, limiting ground troops. 

To your question before—the conversation with Judge Mukasey, 

I think it is important to take into account the current nature of 

this conflict—in other words, the difference between Japan bombing Pearl Harbor and a declaration of war or even al-Qaeda attacking us on 9/11 and the authorization of use of force days later. 

We are in a very long struggle with a very complicated, dynamic, 

and persistent enemy, which I think does suggest that it is appropriate for the executive branch to come to Congress and explain 

who is the enemy, how are we going to attack it, where do we need 

to use force, and that should inform how Congress imposes any restrictions on the use of such force, because at the end of the day, 

Congress speaks for the American people. 

66

Every member of this committee has individuals in their district 

who are fighting on the front lines in this conflict and I think as 

the representatives of the American people, Congress has an extraordinarily important role to speak for the American people and 

impose appropriate restrictions on how that force is exercised. 

Mr. CICILLINE. Thank you. 

Mr. YOHO. The gentleman’s time has expired. 

Mr. CICILLINE. Mr. Chairman, I don’t think you ruled on my 

unanimous consent request to put into the record the letter that we 

sent to President Trump signed by 60 of my colleagues. I would 

just ask unanimous consent it be placed in the record. 

Mr. YOHO. Accepted. 

The Chair will now recognize Mr. Ron DeSantis from Florida. 

Mr. DESANTIS. Thank you, Mr. Chairman. 

Judge, what distinction do you draw, if any, between a declaration of war and an authorization for the use of military force? 

Judge MUKASEY. Hard to draw that distinction. As has been 

pointed out, we have declared war only five times in our history. 

We have fought many, many more wars. It is possible that a declaration of war would apply simply to the conventional nation-state 

situation. But I think what we are talking about is the question of 

how and whether our armed forces are deployed rather than distinctions between AUMF and a declaration of war. 

Mr. DESANTIS. The criticism that is sometimes lodged is oh, you 

guys are doing authorization of force—you haven’t declared war—

somehow that is an illegitimate use of force. You don’t think that 

that carries any water, correct? 

Judge MUKASEY. I do not. 

Mr. DESANTIS. When, in your judgement, is congressional authorization needed for force? Obviously, if Congress declares war or 

authorizes it, the President’s good—if we are attacked or he is 

fending off an attack. But there are certain times in the middle 

where a President could potentially engage. If you look at some of 

the hot spots that are not necessarily covered by an AUMF, whether it is a North Korea threat or Iran, when does it come to where 

Congress has to authorize it, in your judgement? 

Judge MUKASEY. That is a political decision that is made in the 

tug of war between Congress and the executive. We have this Constitution and there is a lot of play in the joints and that is where 

the tug of war goes on. I can’t sit here and tell you a priori precisely where it is necessary for the Congress to assert itself. But 

I shouldn’t have to. 

Mr. DESANTIS. So how about the funding—what I want to get at 

is how the funding power interacts with the authorization. You, in 

your testimony, said you would be willing to live with a 5-year 

lapse, although I think you would prefer no lapse, correct, if you 

just had your druthers or——

Judge MUKASEY. I would prefer no lapse in dedication and commitment. Part of the problem is that when you pass a resolution 

in 2001 and it gets to be 2017 and you have people scratching their 

heads about how it all happened and how we got here, that means 

that there has been a lapse in commitment. 

67

Mr. DESANTIS. If we do the 5-year and it lapses but then Congress continues to dedicate funding for the military effort, do you 

consider that to be implicit authorization? 

Judge MUKASEY. It is a de facto authorization and that has happened in other settings and that is what I mean by the tug of war 

and the political interaction. 

Mr. DESANTIS. Because we had this issue with the Obama administration. He wanted an authorization of force that limited the 

use of force. First of all, I don’t think that that would make sense 

anyways. But if you are going to try to limit it if there is a political 

concern wouldn’t it be better to authorize the force and then use 

the funding mechanism to say okay, we don’t want ground troops 

in Syria and then just limit it that way rather than tie the hands 

at the start of the conflict? 

Judge MUKASEY. The funding power is a sharp-edged instrument, 

but it can certainly be used. 

Mr. DESANTIS. Let me ask you this question. We are debating on 

this committee, Judiciary, some other ones, about whether or not 

that we should designate the Muslim Brotherhood as a terrorist organization. I know you were involved in terrorist cases as a judge 

and as Attorney General. What is your recommendation for us? 

Should we consider them a terrorist organization or not? 

Judge MUKASEY. My sense is that it is the State Department 

that draws up the list of foreign terrorist organizations rather than 

Congress. The——

Mr. DESANTIS. Well, let me just correct—what we are doing is we 

did a bill out of the committee last year saying Congress believes 

and then urging the secretary of state to make the determination. 

Judge MUKASEY. Based on what has been their slogan ever since 

they were founded that ends with ‘‘jihad is our way and dying in 

the way of Allah is our highest hope,’’ yes. 

Mr. DESANTIS. No, I agree with you. I think that that should be 

done. I have urged the administration to do it. 

Mr. Chairman, thanks for holding the hearing. I think the witnesses have been really good so thank you, guys. And we should 

debate this. We should update the AUMF. I think it could be done. 

I think it would be actually one of the few times we actually have 

an insightful debate on the House floor for a change. So I am all 

for it but we have got to understand—I think all of you do—that 

this is a threat that is not going away. It evolves and the idea that 

we are only going to target the people who are actually responsible 

for 9/11 and not open our eyes to the fact that we have militant 

jihadists waging war against us and other parts of the world. I just 

think that doesn’t cut it. So we have got to update it and do it 

right. Thanks. 

Mr. YOHO. I thank the gentleman from Florida. 

We will now go to Ms. Barbara Lee from California. 

Ms. LEE. Thank you, Mr. Chairman. Thank you all very much. 

It has been a very enlightening and important hearing. Now, I am 

glad to be back. I was on this committee for 11 years and I was 

here during the debate around the authorization of the 2001 authorization. 

However, that never came to this committee. Three days after 

the horrific events of 9/11 it went straight to the floor. So this comVerDate 0ct 09 2002 16:41 Sep 29, 2017 Jkt 000000 PO 00000 Frm 00071 Fmt 6633 Sfmt 6633 Z:\WORK\_FULL\072517\26424 SHIRL
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mittee never had a chance to weigh in on that. The resolution, as 

was mentioned earlier and read, it was 60 words, it was overly 

broad, and it did set the stage in the framework for perpetual war. 

I think now it is about 20 percent of members who are here today 

were here during that period. And so I have been consistently trying to repeal that authorization and I want to clarify what several 

have said earlier including Chairman Royce. 

The amendment I offered, I have been offering it for many years 

but this year in Appropriations Committee—I serve on Approps 

now—which was adopted was an amendment that would repeal the 

2001 resolution but it would give Congress 8 months, mind you—

8 months to come up with a new one prior to its repeal. Somehow 

it has been misunderstood and misconstrued that I am saying let 

us repeal it and then take as long as we want. 

So that is not the case and I want to make sure everyone knows 

that because that would be irresponsible and I would not offer such 

an amendment. So we would have 8 months after the repeal to 

come up with a new one and the repeal would stay in effect until 

we came up with a new one. 

I wanted to ask just with regard to our national security strategy. Mr. Olsen, you mentioned the toolbox in which we have in our 

counterterrorism efforts and that every non-military strategy 

should possibly be used before the use of force. So I would like to 

ask all of you how do you view preventing conflicts in the first 

place and what do you think about a 30 percent cut to the State 

Department and USAID funds in terms of our strategies to prevent 

the use of force and wars—the necessity for the use of force. 

And then secondly, on what basis should we authorize the use 

of force? I mean, General, you mentioned terrorism is going to be 

with us. You know, we can’t continue to use force everywhere in 

the world. 

How do we really refine and know which groups, which nations, 

which organizations are real threats to our national security or do 

we continue to, in many ways, get embroiled in civil wars that will 

just provide the United States the—well, it would be assured that 

we would be in the civil wars in perpetuity? 

So, Mr. Olsen, could you start? 

Mr. OLSEN. Sure, I will start and I will say that I agree with the 

point that you raised about the importance of a whole of government approach to our counterterrorism efforts. I think that is 

something that everyone I served with over two administrations, 

both Republican and Democrat, agreed with and that it was the 

necessary approach. In fact, the comments more recently of Secretary of Defense Jim Mattis have agreed with that as well, calling 

the use of military force a last resort in our counterterrorism fight. 

So there is broad agreement on that point. There is broad agreement on all the different tools that are available from law enforcement to economic to diplomatic and I think a number of the comments that have been made today during this hearing about the 

fact that this a, at some level, a struggle for ideas and that countering the ideology that fuels terrorism is part of our efforts and 

a lot of that is done out of the State Department. And so that is 

a critical component of our overall counterterrorism strategy. 

69

General GROSS. Yes. I couldn’t agree more, Congresswoman. I 

mean, I love Secretary Mattis’ quote he is famous for: ‘‘If you are 

going to cut the State Department’s budget, I need a bigger budget 

for bullets,’’ the idea being that that is just going to generate more 

conflict without diplomacy. 

I agree that all the elements of national power ought to be 

brought to bear and the military ought to be a last resort. I don’t 

think you will find anyone in the military who likes war. I mean, 

it is just the horrific results of war and the toll on family and on 

our service members and civilians. We would like to avoid war 

whenever possible and so I agree with you 100 percent. 

We need diplomacy to work. We need other elements of national 

power to come into play first, and I think as Mr. Olsen has pointed 

out, we often look for the military as that one solution and therefore it is an important solution but it is not the solution to every 

problem. 

Ms. LEE. Thank you. Thank you, Mr. Chairman, and I guess I 

would just conclude by just saying as we talk about and debate a 

new authorization, we have to remember this in terms of preventing the use of force as we discuss a new, if we ever do, authorization to use force because, clearly—and I did vote against it because, for me—I was the only one who voted against it—it was just 

too broad and I knew it would set the stage for where we are now. 

So I thank you for this hearing and I would hope that as we debate this that what we just talked about is part of that debate so 

the Members of Congress can understand that our actions do lead 

to reactions that could continue these spiral of events where we 

may be able to pull back at some point and try to prevent further 

acts of terrorism if we do it differently. Thank you again. 

Mr. YOHO. I thank Ms. Lee and I thank your hard work for trying to bring the AUMF to an end, and I have been on several of 

your bills and I think we need to keep fighting that and we will 

get this clarified. So thank you for your comments and your time. 

Gentleman, I am the last one here and so the end is near. Here 

we are 16 years into this AUMF and as has been pointed out, a 

lot of the Members of Congress including myself were not here 

when that happened and so what I have seen is an open-ended 

war. 

And General Gross, you commented that the current AUMF may 

not be legal to go after ISIS in Country X or an affiliated Group 

B that develops later because now ISIS is in the Philippines. We 

have got reports in South America, and without a clear definition 

and a mission statement, this has morphed into a war in a designated area, in a region, to what we see today, and my fear is if 

we don’t bring this under closure or get closure to this, where are 

we going to be in 5, 10, 15 years from now. 

And I don’t want to have to think about if Congress had declared 

war on Nazism or imperialism during World War II, would our 

country still be at war today. What are your thoughts on declaring 

war on an ideology versus a nation-state like Germany or Japan 

back in World War II? 

General GROSS. I will take the first stab, sir. And first of all, just 

to be clear, I don’t think I said you couldn’t go after ISIS in different countries because I think there is adequate legal basis for 

70

them as an enemy, which leads into the question you just asked. 

An AUMF really should focus on an enemy, an enemy force, whether it is a group, a person, or an organization who has attacked the 

United States and against whom should we use military force. 

And so declaring war or authorizing military force against an 

ideology or an idea makes it difficult for me to put in the terms 

of armed conflict and what I understand to be both international 

law, international humanitarian law, the law of armed conflict. 

You know, it deals with enemies, not with ideas, and so that is 

what makes that difficult. I mean, you could define it, I suppose, 

in such a way that you could get to the enemy. But, to me, you define an enemy. You define against whom you can use military 

force. 

Mr. YOHO. Mr. Olsen, did you have something you want to say? 

Mr. OLSEN. I just wanted to add, briefly, that I totally agree it 

would be both legally and operationally extraordinarily problematic 

to define the enemy in terms of an ideology. It would not work on 

either of those dimensions, legal or operationally. I would also just 

quickly point out that even in the immediate aftermath of 9/11, so 

days after 9/11 under the extraordinary circumstances that were 

occurring in this country at that point, Congress pushed back on 

an executive branch request for a grant of authority to use military 

force against terrorism and aggression. 

So a broad grant of authority the executive branch asked for and 

Congress pulled back and only authorized use of force against those 

responsible for 9/11 to deter future acts of terrorism. So precedent 

exists even in those extraordinary times for Congress’ role here. 

Mr. YOHO. What I saw was an—and Ms. Lee brought it up—is 

it didn’t get debated in committee. It went right to the House floor. 

I don’t want to call it a knee-jerk reaction but it was a rapid response. Had we had that debate, we might have had things clarified as far as the direction, the commitment, and we have been 

struggling with this for the last 5 years that I have been here and 

the idea somebody brought up, should an AUMF sunset with that 

administration, with the ability to be renewed to carry into the 

next administration, does anybody have a thought on that? 

Judge? 

Judge MUKASEY. I don’t know that the tenure of administrations 

really coincides with the ebb and flow of events, you don’t necessarily have an occasion for passing an AUMF at the beginning 

of an administration so that if you get to the end of an administration you get an AUMF, what do you do? 

Do you then have it lapse until the new administration comes 

into force? I think that it has to be responsive to the events rather 

than to the change of administration. 

Mr. YOHO. I guess the biggest thing is, so that we don’t get these 

open-ended conflicts that morph from what we went to the conflict 

in Afghanistan in 2001 to where we are now where it is spread 

throughout. You know, we went after al-Qaeda. We went after the 

people that committed the atrocities of 9/11. But yet, now we have 

got ISIS that has come out of the morphing of the terrorist groups 

at that time. 

What happens when ISIS is gone? There is going to be an ISIS 

2.0 or 3.0 the next generation. And so without a clear definition, 

71

this is in perpetuity. It is like the war on poverty or the war on 

drugs. And I think for the sake of our young men and women in 

the military, for the commitment this country has made financially, 

this last National Defense Authorization Act is pushing $700 billion—$700 billion today after a conflict that started 16 years ago. 

So I think there needs to be strong and clear decisive directions 

and authorization and maybe move this war on terror into another 

vehicle and then reel back the AUMF and use it for nation-on-nation kinetic energy or kinetic contact. 

It is just something that, hopefully, with this hearing today a lot 

of good ideas and we can bring this to an end and move on to the 

next. I don’t want to say the next conflict but focus our country’s 

energy where we need to be for national security. 

Any closing thoughts? 

Judge MUKASEY. I think even if we were to say that the AUMF 

went out of existence, at the end of the day we would still experience attacks——

Mr. YOHO. We will. 

Judge MUKASEY [continuing]. Because they are focused on us as 

the principal and the most powerful country in the world and the 

principal exponent of Western ideas. 

Mr. YOHO. Sure. 

Judge MUKASEY. And that is really the way it starts and I think 

that we blink reality by disregarding that. 

Mr. YOHO. General. 

General GROSS. I was just going to say thank you. I very much 

appreciate and I know all members of the armed forces appreciate 

how serious Congress takes these issues. No matter where you 

come out, it matters—that knowing that you all care enough to 

take the time means a great deal to the members of the armed 

forces. So I would just say thank you again. 

Mr. YOHO. Well, again, I appreciate all your service. I, personally, have known five young men and women that have lost their 

lives in this conflict and here we are 16 years later. 

So it is something we do take seriously. It is something that we 

want to make sure that we get it right so we don’t commit our 

young men and women and put them in harm’s way. 

And I appreciate your time. That is the end of the questioning. 

This meeting is adjourned. Thank you. 

[Whereupon, at 12:54 p.m., the committee was adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE RECORD

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FULL COMMITTEE HEARING NOTICE 

COMMITTEE ON FOREIGN AFFAIRS 

U.S. HOUSE OF REPRESENTATIVES 

WASHINGTON. DC 20515-6128 

Edward R. Royce (R-CA), Chairman 

JtJy 25.2017 

TO: MEMBERS OF THE COMMITTEE ON FOREIGN AFFAIRS 

You are respectfully requested to attend an OPEN hearing of the Committee on Foreign A!Iairs, to be held 

in Room 2172 of the Raybum House Office Building (and available live on the Committee website at 

b1tp_:Fl'3~3L_f<:QLQign_A_fbAit:.s.hQJl;?~ __ gq~): 

DATE: 

TIME: 

SUBJECT: 

WITNESSES: 

Tuesdav. July 25. 2017 

10:00 a.m. 

Authorization for the Usc of Military Force and Current Terrorist Threats 

The Honorable Michael B. Mukase: 

(Former A/forney General a(! he Uniled Siafes) 

Brigadier General Richard C. Gross, USA, Retired 

Partner 

Fluet Huber+ Hoang. PLLC 

(Former legal CounseL to the Chairman of the Joint Chief\· q(S'h!IJ) 

The Honorable Matthew G. Olsen 

Lecturer on Lavv 

Harvard Law School 

(Former Director of the Nat tonal Counlerlerrorism Center) 

By Direction of the Chairman 
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COMMITTEE ON FOREIGN AFFAIRS 

MINUTES OF FULL COIVIMITTEE HEARING 

Day Tuesda)!_ Date 7/25/2017 Room 2172 

Starting Time _______l!t1!!_ .Ending Time 12:55 

Recesses _O_i L__to __ ) L__to __ )( ..to ----·· )( ,to )( ,to 

Presiding Mombu(s) 

Chairman Hdward R. Royce, Rep. Cltris Smith .. Rr!p. JejfDuncan, Rep. Ted Yoho 

Check all of the following lhul apply: 

Open Sessim1 [2] 

Executive (closed) Session D Televised [2] 

Electwnically Rocord!!!!Jtaped) [2] 

Stenographic Record lLJ 

TITLE OF HEARING: 

Authorization for the Use ofMilitmy Force and Current Terrorist Threats 

COMMITTEE MEMBERS PllliSENT: 

See attached. 

NON-COM;viiTTEE MEMBERS PRESENT: 

Rep. Barbara Lee 

HEAlUNG WITNESSES: Same as meeting notice attached? YcsO 1\-oO 

(If "no", please list below and include title, agency_ department, or organization) 

STATEMENTS FOR TH!C llliCOlill: (List any statements submittedfor the record) 

TFR- Rep. Eliot Engel 

JFR -Rep. David Cicilline 

SFR -Rep. Gerald Connolly 

QFR- Rep. Brad Sherman 

TIMR SCHEDUT,ED TO RECOWENE ___ _ 

or 

T~EADJOURNED_/_2._·5_5 __ _ 

) (- ,to __ ) 
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PRESF)\'T 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

HOUSE COMMITTEE ON FOREIGN AFFAIRS 

FUU COMMTTTRF. HF.ARTNG 

MEMJJER PRESE"!T MEMBER 

Edward R Rovce, CA X Eliot L. Engel, NY 

Christopher H. Smith, NJ X Brad Sherman, CA 

Ileana Ros-Lehtinen, FL Gregory W. Meeks. NY 

Dana Rohrabacher, CA X Albia Sires, NJ 

Steve Chabot OH X Gerald E. Connolly, VA 

Joe Wilson, SC X Theodore E Deutch. FL 

Michael T. McCaul, TX Karen Bass, CA 

Ted Poe. TX X William Keating. MA 

Darrell lssa. CA X David Cicilline, Rl 

Tom Marino. PA X Ami Bera, CA 

Jefr Duncan. SC Lois FrankeL FL 

Mo Brooks. AL Tulsi Gabbard, HI 

Paul Cook, CA Joaquin Castro, TX 

Scott Perrv, PA X Robin Kelly, TL 

Ron DeSantis. FL Brendan Boyle, PA 

Mark Meadows, NC X Dina Titus, NV 

TedYoho.FL X Norma Torres. CA 

Adam Kinzinger,!L X Brad Schneider, !L 

Lee Zeldin, NY X Tom Suozzi, NY 

Dan Donovan, NY X Adriano Espaillat, NY 

James F. Sensenbrenner, Jr., WI X Ted Lieu, CA 

Ann Wagner. MO X Barbara Lee. CA 

Brian l Mast FL 

Brian K. FilLpatrick, PA 

Francis Rooney, FL 

Thomas A. Garrett, Jr., VA 
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MATERIAL SUBMITTED FOR THE RECORD BY THE HONORABLE ELIOT L. ENGEL, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK


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Why the Framers assigned Congress the war power 

The Constitution could have given the President primacy in deciding whether to take the 

country to war. Save for a narrow set of defensive circumstances (i.e., to repel a sudden or 

actually imminent attack), it does not. Congress was assigned that power. The reasons why are 

important. 

First, human nature compels our constitutional separation of war powers. As James Madison 

cautioned, if those powers were accumulated in the executive branch, "the temptation would 

be too great for any one man." Second, it is central to our democracy that Members be 

politically accountable when the government sends young Americans into harm's way. Third, 

collective judgment about whether and when the United States should use force-fashioned 

through a full, serious and transparent debate among our elected representatives-is superior 

to that of any one person. 

All of these reasons share the same animating principle: constraint. Our system of checks and 

balances was designed to guard against war; to ensure it is the carefully limited exception, 

peace the rule. 

Important context for the current AUMF debate 

If Congress decides to weigh in-to address pre-existing war authorities, pass a new one, or 

both-it will not be doing so in a vacuum. In order to meaningfully fulfill their constitutional 

obligation, Members must be clear-eyed about the backdrop against which they would be 

legislating. The following three factors, in particular, should weigh heavily in Members' 

decision-making: 

Both Presidents Obama and Trump have stretched the 2001 AUMF far beyand its breaking point 

There is a growing acknowledgment that the United States cannot, or at least should not, rest 

the legal authority for so many military engagements-the ISIS war in particular-on a 15-yearold statute that was intended specifically to target those responsible for the September 11, 

2001 terrorist attacks. We agree. Through the concepts of "associated forces" and "successor 

entities," first President Obama and now President Trump have stretched the 2001 AUMFwhich nowhere mentions "associated forces" or "successor entities"-beyond its breaking 

point. Indeed, the 60-word statute is the purported legal basis for current military operations 

against some groups that had no role in 9/11, and against others that did not even exist on 

9/11. Had the 2001 AUMF been drafted more clearly, specifically, and narrowly, it might very 

well have precluded the interpretive gymnastics necessary to grounding those operations in 

that law. 
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The executive branch has became increasingly hostile towards congressional oversight, and 

Congress has largely failed to push back 

This is neither a partisan phenomenon, nor one confined to a particular subject area. In the 

aftermath of 9/11, President George W. Bush's administration argued that Congress could not 

regulate the President's actions at all when he was acting pursuant to the Commander-in-Chief 

power. President Obama took the United States to war in Libya in 2011, without prior 

congressional approval, and in the process claimed unilateral authority to send up to 20,000 

troops into battle on the theory that doing so would not constitute "war" in the constitutional 

sense. President Obama also presided over the expansion oft he 2001 AUMF beyond any 

plausible reading of its text, a legal and policy decision that President Trump has continued. 

In the oversight context more generally, the executive branch has over time come to treat 

Congress less and less as a co-equal branch of government. For example, the Justice 

Department has taken the position that neither the House nor the Senate has the constitutional 

authority to enforce a subpoena against an executive branch official through criminal or 

inherent contempt proceedings, even if there is no claim of executive privilege. The practical 

result of that stance is to deny Congress timely access to the information it needs to do its job, 

and to incentive agency obstructionism when responding to congressional requests for 

information. 

For its part, the Trump administration has explicitly told federal agencies not to respond to 

oversight requests from Members of the minority. That instruction was accompanied by a May 

1, 2017 Office of Legal Counsel opinion concluding that "such requests do not trigger any 

obligation to accommodate congressional needs and are not legally enforceable through a 

subpoena or contempt proceedings." 

The Trump administration has delegated significant war making authority to notional security 

agencies 

Shortly after taking office, President Trump reportedly restored CIA authority to conduct lethal 

drone strikes. In March, the press reported that the administration is considering weakening 

current policy standards for the use afforce in counterterrorism operations. In April, the 

President delegated to Secretary of Defense James Mattis the authority to set troop levels in 

Iraq and Syria. In June, he gave Mattis the same authority for Afghanistan. 

Entrusting these kinds of decisions solely to the warfighters-and intelligence personnel who 

have come to perceive themselves as such-carries serious risk of unchecked escalation. The 

absence of clear, congressionally-imposed limits on where and when force can be used 

heightens the risk. 

3 
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How Members should approach revising the 2001 AUMF or crafting a new one 

There is no shortage of current proposals-most of them drafted by Members of Congress-for 

a new statute that would authorize force against (at least) ISIS, and in some cases also address 

one or both of the 2001 AUMF and the 2002 Iraq AUMF. Unfortunately, as noted at the outset, 

many of the proposals accommodate a degree of executive unilateralism that the Constitution 

was designed explicitly to reject. This is especially troubling given the context described above, 

coupled with technological advances that have drastically reduced the barriers to the United 

States waging global war. 

On July 24, a coalition of human rights, civil liberties, and faith groups sent a letter to 

Committee Members "urging you to ensure ... that any new AUMF is clear, specific, tailored to 

the particular situation for which force is being authorized, and comports with the international 

law obligations of the United States." The signatories then set out a list of provisions we all 

believe would help Congress achieve clarity, specificity, and narrow tailoring if and when it next 

authorizes force. 

Congress should view this list as a floor, not a ceiling. Members legislating in today's 

environment need to prioritize strict limits and robust oversight for executive branch uses of 

force. In other words, they need to rein the executive branch back in. By doing so, Members 

can meaningfully fulfill the role that Article I, Section 8, of the Constitution envisions for them. 

Sincerely, 

/5/ Scott Roehm 

Vice President for Programs and Policy 

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July 24, 2017 

Rep. Ed Royce 

U.S. House of Representatives 

2310 Rayburn House Office Building 

Washington, DC 20515 

Re: Authorizing the Use of Military Force 

Dear Chairman Royce and Ranking Member Engel: 

Rep. Eliot Engel 

U.S. House of Representatives 

2462 Rayburn House Office Building 

Washington, DC 20515 

We, the undersigned, represent a wide swath of the human rights, civil liberties, and faith 

communities. While we do not have a coalition position on whether or when a nation should 

use military force, we share a common view on the appropriate procedures for considering a 

new authorization for use of military force (AUMF) and on the critical elements that any new 

AUMF that is passed should meet. 

We commend you for addressing the issue of a new use-of-force authorization in the Foreign 

Affairs Committee. Deciding to send the nation into war is Congress' gravest responsibility. To 

fully perform its constitutional role in authorizing military force and providing oversight over 

ongoing military operations, Congress should evaluate the administration's plans to identify 

and address where current or proposed missions lack adequate authorization. The Foreign 

Affairs Committee is the appropriate forum to begin that evaluation, followed by a full and 

transparent debate in the full House if the Committee moves forward with an AUMF. 

We urge you to ensure as well that any new AUMF is clear, specific, tailored to the particular 

situation for which force is being authorized, and comports with the international law 

obligations of the United States. We all agree that vague and overbroad war authorizations 

undermine accountability, frustrate effective oversight, invite mission creep, and risk 

embroiling the nation in unauthorized or perpetual wars that threaten human rights and the 

rule of law. 

The following types of provisions would help Congress achieve clarity, specificity, and narrow 

tailoring if and when it next authorizes force: 

Repeal or Supersede Other AUMFs: Any new AUMF should repeal old AUMFs or include 

"supersession" language. Such language would prevent old AUMFs from being interpreted 

beyond their original purpose, and prevent them from being used to circumvent the limitations 

and requirements of any new authorization. If, for instance, Congress fails to address both the 

2001 AUMF and the 2002 Iraq AUMF in any new ISIS-focused AUMF it risks adding to what has 

become a tangled and ambiguous web of war authorities, and claims of war authorities, from 
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which a president might pick and choose without explanation, and invoke to engage in unlawful 

wars. 1 AUMFs that are no longer necessary should be repealed. 

Clearly Specify the Mission Objectives and the Enemy: To prevent current or future 

administrations from overstepping Congress' intent, engaging in mission creep, and using the 

authorization to justify unlawful or perpetual armed conflict, a new AUMF should clearly specify 

the mission objectives, the entity against which force is being authorized, and geographic 

limits. Clear mission objectives will make it clear when the mission against the specified enemy 

is achieved and authorization has thus expired. Delegating Congress' authority to authorize war 

to the executive branch by authorizing force against unknown future threats or enemies is both 

unconstitutional and unnecessary for national security. Congress can specifically authorize force 

against threats that arise in the future and the president has authority under the Constitution 

to defend the nation from sudden attacks. 

Increase Transparency and Reporting: Regular and thorough reporting sufficient to keep both 

Congress and the public informed is important for democratic accountability, ensuring 

compliance with domestic and international law, and enabling Congress to fulfill its critical 

oversight functions. For instance, requiring the president to provide regular reports on the 

specific organized armed groups considered covered under the new AUMF (including the 

factual and legal basis for this finding), the number of civilian and military personnel killed, 

relevant legal justifications for new actions, and other similar information, is critical for keeping 

the public informed and enabling Congress to exercise its war powers duties as the conflict 

unfolds. 

Require Compliance with International law: The Supreme Court has long held that domestic 

statutes must not be interpreted in a way that conflicts with the United States' international 

legal obligations if any other plausible interpretation exists. Nevertheless, explicitly stating that 

the force being authorized by Congress must comply with U.S. obligations under international 

law (including the U.N. Charter, international human rights law, and the law of armed conflict 

where applicable) will underscore that when Congress authorizes the use of force, the 

president is required to abide by the terms of the authorization as well as the international 

legal obligations of the United States. 

Require Reauthorization: Setting a sunset or review date for use of force authorizations 

ensures continued congressional oversight and approval as the conflict evolves. A sunset is also 

an important safeguard against perpetual armed conflict or executive branch overreach. 

Sunsets act as forcing mechanisms, requiring Congress and the administration to reexamine the 

AUMF at a future date in light of more current conditions, and if necessary, reauthorize and/or 

refine the legislation to suit those new conditions. Sunset provisions have been included in 

1 Several of the undersigned organizations have previously written to Congress regarding the importance of any 

new war authorizations either repealing existing authorizations or containing explicit supersession language. See, 

e.g., http://www. constitution project. org/wp-content/u p load s/2014/ 11/141119-15 I L -AU M F-Coa lition -Letter. pdf; 

http: I /www. constitution project. org/wp-conte nt/u ploa ds/20 15/02/150224 _lSI L _AU M F _Co a I ition _Letter. pdf. 
83

Note: The above material is not reprinted here in its entirety but may be accessed 

in full at: http://docs.house.gov/Committee/Calendar/ByEvent.aspx?EventID=106315

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nearly a third of prior AUMFs. The 2001 AUMF, which was passed to authorize the use afforce 

against those responsible for the 9/11 attacks, did not contain a sunset clause. That law has 

since been claimed to authorize the use of force for nearly 16 years, including against groups 

against which Congress did not intend to authorize force . 

••• 

Provisions aimed at ensuring that use of force authorizations are sufficiently clear, specific, and 

tailored to particular conflicts are critical for the fulfillment of Congress' constitutiona I role. 

Congress is the branch that this country's founders entrusted with the solemn decision to send 

the country and its men and women to war. Broad, vague, or open-ended authorizations fail to 

fulfill Congress's role. While there are different ways to ensure that use of force authorizations 

are clear, specific, and narrowly tailored, any new authorization should meet this standard by 

including the above critical elements. 

Sincerely, 

American Civil Liberties Union 

Appeal for Justice 

The Constitution Project 

Council on American-Islamic Relations 

Defending Rights & Dissent 

Government Information Watch 

Human Rights First 

National Religious Campaign Against Torture 

OpenTheGovernment 

Win Without War 
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MATERIAL SUBMITTED FOR THE RECORD BY THE HONORABLE DAVID CICILLINE, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF RHODE ISLAND


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any of its associated forces. Despite the lack of congressional authorization, Congress has not 

received any reports pursuant to theW ar Powers Resolution for the strikes that took place 

between May 18 and June 20. If you intend to eontl11Uc military action against the govcrmncnt of 

Syria or its associated forces~ you must present a strategy to Congress and request specific 

outhorization. 

111c Constitution gives the power to declare war to the United States Congress. It is our 

responsibility as the clcck"<i representatives of the American peop1e to ensure that any military 

engagement involving our men and women in unifonn is {]one with the support of Congress, and 

has a clearly articulated strategy, against a defined target, with a dear purpose that prioritizes the 

security ofthc United States. 

Our efforts to defeat ISIS and al Qaeda are of the utmost importance to American national 

security. We are concerned that increasing escalation in Syria without the consent of the 

Americlm public through their elected representatives, will embroil the United States military in 

a protracted and unauthorized war without any strategy for victory. lt is our responsibility to 

ensure that any decision to engage U.S. troops in military conflict is made with Congress's 

constitutionally mandated consent and urge you tu act accordingly. 

Sincerely, 

!\ 

_ _[±-_'"_;,_ ___ , -~~--~- Ami Bera 

Earl Blumenauer 

_Q-~~---~~ - Judy Chu 
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<J~c~;;;;;;;:;;·!~. 

~ ~- ···-rr ·- 'ff--
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Seth Moulton 

_lStA, ~. (! ___ _ Beta O'Rourke 
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Carol Shea--Porter 

~-_.g_fh~ ~Slatg~~ -

Dina Titus 

Norma J, Ton·cs 
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Statement for the Record 

Submitted by Mr. Connolly of Virginia 

From Afghanistan and Iraq to Syria and Yemen, United States Armed Forces have been engaged 

in military action on several fronts in the first six months of the Trump Administration. In the 

Middle East and around the globe, the proliferation of terrorism undermines U.S. national 

security interests, threatens vulnerable populations, destabilizes partner and allied countries, and 

contributes to an increasingly volatile world. Ongoing military actions against foreign terrorist 

organizations such as ISIS are carried out based on congressional authorizations for the use of 

military force (AUMF) passed in 2001 and 2002 to respond to the 9/11 attacks and carry out the 

Iraq War, respectively. These AUMFs have grown stale, and it is past time Congress make 

crystal clear to the Administration, our allies, our constituents, and our military families the 

circumstances and limitations under which we would authorize engagement by our men and 

women in uniform in hostilities overseas. 

Article T, Section 8 of the United States Constitution states that "Congress shall have power .. to 

declare war. .. and to raise and support annies" and other armed forces. While Article ll, Section 

2 designates "the President shall be Commander in Chief' of the nation's armed forces. These 

constitutional duties have been in competition ever since the ratification of the Constitution. 

While Congress has officially declared war only 5 times (1812, Mexico, Spain, WWT, and 

WW!l), American presidents have initiated military operations without Congressional approval 

more than one hundred times. 

Tn the aftermath of the Vietnam War and the exploitation of the open-ended authorization 

contained in the Gulf of Tonkin Resolution, Congress sought to clearly define the procedures by 

which Congress and the President would participate in decisions to send U.S. Armed Forces into 

hostilities by passing the War Powers Resolution (P.L. 93-148). Every president since the 

enactment of the War Powers Resolution has taken the position that it is an unconstitutional 

infringement on the president's authority as Commander in Chief. The War Powers Act never 

resolved this constitutional question, and, frankly, both Congress and the executive branch have 

been complicit in keeping it unresolved. In most instances the president, Congress, and the courts 

have refused to invoke the authorities of the War Powers Act And Congress, for its part, has 

found it convenient to cede its constitutional duty to the president in order to avoid a tough vote. 

Both the Obama and Trump Administrations have cited congressional authorizations for the use 

of force from the early 2000s to justify ongoing military actions against the Islamic State. On 

September 18, 2001, just days after the 9/11 terrorist attacks orchestrated by Osama Bin Laden 

and al-Qaeda, Congress passed a joint resolution authorizing the use of U.S. forces against those 

responsible for the attacks (P.L. 1 07-40). On October 16, 2002, Congress passed another joint 

resolution authorizing the use of U.S forces against the continuing threat posed by Iraq (P.L. 

107-243). While the 2001 and 2002 AUMFs were sufficient to authorize the wars in Afghanistan 

and Iraq, it stretches credulity to claim that these same resolutions extend authorization to the 

present-day fight against the Islamic State, which was only established in 2013. 

Tfthe President determines that the United States needs to use military force, then he should seek 

and gain such authorization from Congress. Instead, the Trump Administration has so far refused 
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to seek Congressional authorization for military action against the Islamic State, or in response to 

Assad's chemical weapons attacks on civilians. A fifty-nine cruise missile strike cannot be a 

substitute for a policy going forward, and the United States has continued to engage the Syrian 

regime militarily on a number of occasions since then without consulting Congress to obtain the 

necessary authorities. Kneejerk kinetic responses without an overarching strategy endanger 

American lives and diminish U.S. global leadership. The Trump Administration must begin a 

dialogue with Congress about our Syria policy. 

I was pleased to see the House Appropriations Committee's passage of an amendment to the 

Department of Defense Appropriations Act, 201 8 (H.R. 32 I 9) that would repeal the 2001 

AUMF. Unfortunately, the Speaker of the House removed the amendment from the bill. Since 

President Trump has declined to seek the requisite authorization from the legislature, such an 

amendment would have prompted Congress to undertake a long overdue debate about whether, 

and under which parameters, our troops should be engaging in military action. 

As informal discussions regarding an AUMF against the Islamic State have simmered, they have 

raised fundamental questions about the future of fighting terror and how we accommodate 

necessary military action in an AUMF that would allow the U.S. to effectively prosecute 

terrorism without committing to war in perpetuity. An effective AUMF would need to address 

the purpose, scope of authorized force, targeted entities, geographic limitations, timeline, and 

reporting requirements. 

Congressional malfeasance notwithstanding, it is necessary for the President to receive 

authorization for a sustained military operation against the Islamic State, and the full assertion of 

Congressional duty is long overdue. I look forward to hearing from our witnesses how Congress 

and the Trump Administration can reassert our constitutional roles to protect U.S. national 

security from current terrorist threats. 

2 
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Questionfor Judge Michael B. What are the various mechanisms 

Congress can use to enforce the War Powers Act? 

Answer: As I testified during the hearing I believe - as every Attorney General 

since Griffin Bell has believed -- that the War Powers Act is unconstitutional as an 

improper limitation on the President's Article II powers. The "mechanism" I can 

think of involves engaging the power over of public funds, and 

relates to the second question below. That "mechanism," as I think my answer to the 

next question makes clear, is more apparent than real. 

Question for Judge Michael B. "vn'""'·'"v. Can Congress legally that the 

monies provided by the Defense bill not be in contravention ofthc 

War Powers Act? And if so, is this a way for to the War Powers Act? 

Answer: At the hearing, I was asked the first of the above questions, and 

res,po:m1E~d "sure," as I would now. Congress can legally attach conditions to 

appropriations, and has done so in the past. However, when Rep. Shennan said at the 

that that is "the to enforce the War Powers Act, and I that it is "a 

way," that response not be over-read. Although it is lawful for to attach 

a condition to an bill, there is no condition that enforces any more 

than there is a rule enforces itself. could insert such a condition, but it 

unlikely that there would be any way of forcing a President to comply with 

co:adiitic'n other than funding because the condition refers 

determination and not to specific action. For Congress 

coruil1lor!ed its appropriation of funds to specify that no funds be spent to bring 

l'"'~v"""'~ from Guantanamo to the mainland United States. That is a act, and a 

det:enmrtation as to whether that condition had been violated would be relatively easy to 

make. Whether funds are spent in contravention of a statute may involve 

determinations that a com1 could deem political, when that statute itself is of 

doubtful As I testified, the constitutionality of the War Powers Act has 

it never is. The two branches have to work it out between