U.S. GOVERNMENT PUBLISHING OFFICE

36–576 PDF WASHINGTON : 2019

S. HRG. 115–622 

USING FORCE: STRATEGIC, POLITICAL, 

AND LEGAL CONSIDERATIONS 

HEARING 

BEFORE THE

COMMITTEE ON FOREIGN RELATIONS 

UNITED STATES SENATE 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

DECEMBER 13, 2017 

Printed for the use of the Committee on Foreign Relations 

( 

Available via the World Wide Web: 

http://www.govinfo.gov 

FOREI-42327 with DISTILLER

COMMITTEE ON FOREIGN RELATIONS

BOB CORKER, Tennessee, Chairman

JAMES E. RISCH, Idaho 

MARCO RUBIO, Florida 

RON JOHNSON, Wisconsin 

JEFF FLAKE, Arizona 

CORY GARDNER, Colorado 

TODD, YOUNG, Indiana 

JOHN BARRASSO, Wyoming 

JOHNNY ISAKSON, Georgia 

ROB PORTMAN, Ohio 

RAND PAUL, Kentucky 

BENJAMIN L. CARDIN, Maryland 

ROBERT MENENDEZ, New Jersey 

JEANNE SHAHEEN, New Hampshire 

CHRISTOPHER A. COONS, Delaware 

TOM UDALL, New Mexico 

CHRISTOPHER MURPHY, Connecticut 

TIM KAINE, Virginia 

EDWARD J. MARKEY, Massachusetts 

JEFF MERKLEY, Oregon 

CORY A. BOOKER, New Jersey 

TODD WOMACK, Staff Director

JESSICA LEWIS, Democratic Staff Director

JOHN DUTTON, Chief Clerk

(II)

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C O N T E N T S 

Page 

Corker, Hon. Bob, U.S. Senator from Tennessee .................................................. 1 

Cardin, Hon. Benjamin L., U.S. Senator from Maryland ..................................... 2 

Hadley, Hon. Stephen J., former Assistant to the President for National 

Security Affairs, Washington, DC ....................................................................... 5 

Prepared statement .......................................................................................... 7 

Wormuth, Hon. Christine E., former Under Secretary of Defense for Policy, 

Washington, DC ................................................................................................... 9 

Prepared statement .......................................................................................... 11 

Bellinger III, Hon. John B., former National Security Council Legal Advisor, 

Washington, DC ................................................................................................... 15 

Prepared statement .......................................................................................... 15 

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

Letter sent to President Donald J. Trump by Senator Tim Kaine and Congressman Adam B. Schiff regarding the April 6, 2017 strike against the 

Shayrat Military Airbase in Syria ...................................................................... 44 

(III)

FOREI-42327 with DISTILLER

FOREI-42327 with DISTILLER

(1) 

USING FORCE: STRATEGIC, POLITICAL, 

AND LEGAL CONSIDERATIONS 

WEDNESDAY, DECEMBER 13, 2017 

U.S. SENATE, COMMITTEE ON FOREIGN RELATIONS, Washington, DC. 

The committee met, pursuant to notice, at 9:33 a.m. in Room 

SD–419, Dirksen Senate Office Building, Hon. Bob Corker, chairman of the committee, presiding. 

Present: Senators Corker [presiding], Johnson, Flake, Gardner, 

Young, Barrasso, Isakson, Cardin, Menendez, Shaheen, Coons, 

Kaine, Merkley, Markey, and Booker. 

OPENING STATEMENT OF HON. BOB CORKER, 

U.S. SENATOR FROM TENNESSEE 

The CHAIRMAN. The Foreign Relations Committee will come to 

order. 

I know there is a lot of chatter about most recent events. 

We thank each of you for being here. We have very distinguished 

witnesses today. We thank you for taking the time. 

A number of members, both on and off this committee, have 

raised questions about the executive branch authorities with respect to war-making. And I think you know we are moving on towards an authorization—I hope we begin to socialize with others 

in this hearing, which is not directly related to that, I think is of 

good timing—the use of nuclear weapons, and from a diplomatic 

perspective, entering into and terminating agreements with other 

countries. 

Today we will conclude a series of hearings on these issues by 

examining the many considerations involved in presidential decisions to use military force without authorization from Congress. 

Throughout the history of our nation, Presidents have decided to 

deploy troops into hostilities without prior authorization from Congress in circumstances ranging from small-scale rescue operations 

to advise and assist missions in the support of partner nations and 

larger-scale military action. 

It is in our strategic interest to have a strong commander-in-chief 

with the ability to take quick and decisive military action. But that 

authority must be legally sound and checked by vigorous oversight 

and engagement from Congress on behalf of the American people. 

The decision to use military force is one of the most consequential any President can make and should always be among the most 

carefully considered. As Presidents deliberate whether and how to 

use military force, they take into account a number of different facFOREI-42327 with DISTILLER

2 

tors, and it is these factors—the strategic, political, and legal concerns involved with such decisions—that we will explore with our 

panel of witnesses today. 

First are the strategic questions. We will look at what test the 

President should use in determining whether to use military force 

and what U.S. interest must be at stake. We will also want to examine how Presidents should balance the use of force against other 

options. 

We must also look at the political considerations. Public opinion 

matters for obvious reasons. But when it comes to the use of American force, the support of the public and the Congress play a key 

role in our ability to be effective, especially when things go wrong. 

We hope to gain insight into how much political support should factor into a President’s thinking when it comes to using force. 

Finally, we should look at the legal side of this issue. The reality 

is that unless Congress takes the rare step of withholding funding, 

history shows that the President’s ability to initiate military action 

without Congress has been extremely broad. That said, discussing 

the legal doctrine regarding these questions is a conversation worth 

having. 

I thank our witnesses for being here today, and I look forward 

to their testimony and responses to our questions. 

And with that, I will turn to my good friend and our ranking 

member, Senator Cardin. 

STATEMENT OF HON. BENJAMIN CARDIN, 

U.S. SENATOR FROM MARYLAND 

Senator CARDIN. Well, Mr. Chairman, first, thank you for convening this hearing. As I said when Secretaries Tillerson and 

Mattis were before our committee, this is perhaps one of the most 

important responsibilities we have in the Senate Foreign Relations 

Committee—to consider circumstances and legal authority for sending our men and women into harm’s way. So thank you very much 

for this hearing. 

I welcome our distinguished panel. We have some really great experts here that I hope will engage us in this conversation. 

America faces unprecedented crises around the world, from the 

continuing terrorist threats presented by ISIS and al Qaeda and 

their affiliates to a worsening nuclear crisis with North Korea, to 

the growing proxy fights between Saudi Arabia and Iran’s destabilizing the entire Middle East. 

President Trump’s apparent inclination to use military force and 

to risk war rather than to find diplomatic solutions to these crises 

is troubling. His attitude toward diplomacy ranges from disinterest 

to naivete ́ to actively sabotaging his own Secretary of State. 

Finding the proper balance for the authority to use force is not 

unique to this President. The last two Presidents have stretched 

their authorities to the breaking point, especially in the use of the 

2001 authorization of use of military force, which in my view was 

intended as a necessary, narrow response to the 9/11 plotters, most 

of whom are either dead or in custody. And while we can expect 

that any President will seek to stretch his or her authorities, it is 

also incumbent on those of us here in Congress to make sure that 

FOREI-42327 with DISTILLER

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we exercise our constitutional authorities too when it comes to the 

use of force. 

Secretary Mattis confirmed at our hearing a few weeks ago that 

there is no congressional authority for military action against 

North Korea. But I remain deeply concerned that President Trump 

will decide to preemptive or preventive military actions against 

North Korea that is not justified under the circumstances and that 

Congress has not authorized. He might even potentially seek to initiate a nuclear first strike, and as borne out by our recent hearing 

on this issue, we would have to rely on the strength of character 

and bravery of those in military responsibility for carrying out that 

attack to question its legality. 

Mr. Chairman, what is also becoming abundantly clear during 

the hearing with the Secretaries of Defense and State is that we 

also need to take stock of what we are already doing. We have U.S. 

troops deployed almost everywhere in the world, including in circumstances that would easily involve them in the United States in 

combat as we recently saw in Niger. 

In addition to significant deployments in Iraq, Afghanistan, and 

Syria and major deployments in South Korea, Japan, and Europe, 

U.S. forces have been engaged in counterterrorism operations in 

Yemen, Somalia, Ethiopia, Libya, and Chad with extensive advice, 

train, and capacity building efforts in many more. 

A few weeks ago I read in Politico a story that the number of 

U.S. military forces in Somalia has grown this year to over 500 

people with the Pentagon quietly posting hundreds of additional 

special op personnel to advise local forces around the country. This 

committee has jurisdiction for intervention abroad. Yet, no additional authority was sought, even as the United States doubled its 

military forces in Somalia, potentially placing them in harm’s way. 

This is a problem, Mr. Chairman. We have all been seized by the 

tragic loss of U.S. soldiers in Niger, but let us not forget that we 

already have seen similar losses in Somalia. In May of this year, 

a U.S. Navy SEAL was killed while accompanying Somalian soldiers in an advise and assist mission. The incident marked the first 

loss of U.S. military personnel in Somalia since 18 U.S. soldiers 

died there in 1993. The Black Hawk Down incident had serious 

consequences for U.S. engagement and policy in Somalia, just as 

the recent incidents in Niger and Somalia will impact how we view 

train, equip, advise, assist, and accompanying missions going forward. 

And just last week, the Pentagon acknowledged that there are 

2,000 forces in Syria. This is nearly quadruple the level of 503 authorized by the previous administration. This is yet another warning to Congress and the American people that the Trump national 

security team is greatly expanding the deployment of U.S. military 

forces on the ground worldwide with minimal congressional consultation, minimal buy-in from the American people, minimal limitations, and minimal transparency. 

So as we contemplate the impact of these missions, we must engage in a serious gut check and ask ourselves what are the consequences of our military personnel being involved in places where 

lethal action seems almost inevitable. 

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Mr. Chairman, I think we are seeing that over time a kind of 

gray space is growing, in which a significant and consequential use 

of force results from activities we all thought did not constitute the 

use of offensive military forces such as deployment to train and 

equip other militaries. This is either classic mission creep or significant miscalculation about the very nature of advise and assist, 

train and equip missions. 

This committee needs to take stock of where we are on two 

fronts. First, what exactly should we be doing now to ensure that 

the President does not engage in military actions that Congress 

has not authorized and that cannot be justified under the President’s Article II authorities? And second, what exactly is the military doing around the world right now in the gulf between the 

mere training and conventional wars, a mission that is growing 

and can be lethal? Both of these issues have consequences for our 

long-term foreign policy goals and national security. 

Yesterday, Mr. Chairman, we received the latest report submitted every 6 months pursuant to the War Powers Resolution. 

This is a 4-page document updating us on the deployment of U.S. 

armed forces equipped for combat. There are some new things compared to the June report. And I think we need to put attention to 

this because the President tells us this is his notification. 

A hundred U.S. troops have been deployed to Lebanon to enhance the government’s counterterrorism capabilities and support 

the anti-ISIL operations. Since the last report, the United States 

forces have conducted a number of airstrikes against ISIS terrorists and their camps in Libya. And U.S. forces equipped for combat 

have deployed in the Philippines to support counterterrorism operations. 

Folks, these are all new activities, and this notification offers us 

too little information about expanding U.S. military operations 

around the world. 

I think this committee needs to get a more granular understanding of these activities, the authorities under which they are 

being done, and the troop distribution numbers in this country and 

other countries around the world. 

When we talk about our role, Congress’ role, we are inevitably 

talking about the War Powers Resolution, which has been much debated over the years. We need to consider whether it is sufficient 

to deal with the new circumstances as well as the current use of 

military and lethal force or if something more is needed. 

I noted with interest the introduction last month of a bipartisan 

concurrent resolution in the House of Representatives pursuant to 

section 5(c) of the War Powers Resolution. That resolution would 

direct the President to remove U.S. armed forces from hostilities in 

the Republic of Yemen, except those engaged in operations directed 

at al Qaeda in the Arabian Peninsula or associated forces. This is 

an interesting example of potential ways Congress can assert itself 

in these matters. 

The 9/11 and Iraq AUMFs, the purposes of this passage have 

long been overcome, have now become mere authorities of convenience for Presidents to conduct military activities anywhere in the 

world. They should not be used as legal justification for the administration’s international military activities. Nor should Title 10 auFOREI-42327 with DISTILLER

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thorities become authorities of convenience for Presidents to conduct lethal offensive military activities anywhere in the world. 

I will end by saying that the United States has relied too long 

on military force as the first response to problems of terrorism, insurgency, and instability abroad. What makes this issue even more 

urgent is this administration’s growing reliance on military force 

while, at the same time, pushing dramatic reductions in budgets 

and resources for diplomacy and development. 

It is quite astonishing and deeply troubling, and I think the 

American people need to hear more about it. Diplomacy, development, and support for human rights are the critical means through 

which we are safer in the world. 

Mr. Chairman, I look forward to hearing from our witnesses, and 

I really hope we can have a robust discussion as to how Congress 

can assert its proper role. 

The CHAIRMAN. Thank you so much. 

Our first witness really needs no introduction. I am personally 

indebted to him for being here today and for all the kindness he 

has shown me since I have been here in the Senate and moved 

along in my understanding of how we deal with these issues. I 

thank him so much for being here. 

So I would like to welcome our former National Security Advisor, 

Stephen Hadley. We are deeply grateful for his willingness not only 

to testify today but for his sage advice over the years, as I just 

mentioned. 

Our second witness is the Honorable Christine Wormuth, former 

Under Secretary of Defense for Policy. Ms. Wormuth is currently 

the Director of the Adrienne Arsht Center for Resilience at the Atlantic Council and previously served on the National Security 

Council under President Obama. Thank you so much for being 

here. 

Our third witness is Mr. John Bellinger III, former National Security Legal Counsel at the State Department and then Legal Advisor. Mr. Bellinger is currently a partner at Arnold and Porter in 

D.C. and has helped us on many occasions. 

We thank all three of you for being here. If you would just begin 

your testimony in the order introduced. I know you understand you 

can summarize in about 5 minutes. We would appreciate it. Without objection, any written materials you may have will be entered 

into the record. So with that, Mr. Hadley. 

STATEMENT OF HON. STEPHEN J. HADLEY, FORMER ASSISTANT TO THE PRESIDENT FOR NATIONAL SECURITY AFFAIRS, 

WASHINGTON, D.C. 

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

Cardin, and other distinguished members of the committee. I appreciate this opportunity to appear before you this morning on this 

important subject. 

The decision to use military force is perhaps the most consequential decision this nation can make. It can have enormous consequences for the nation’s security, prosperity, and role in the 

world. It can have enormous consequences for other countries and 

their peoples. But most of all, it has the most serious consequences 

for our country’s most precious resource, the lives of its citizens. 

FOREI-42327 with DISTILLER

6 

The decision to use military force is the decision to put those Americans serving in our military in harm’s way, at risk of death and 

serious injury. Such a decision must be made with the greatest seriousness, consideration, and care. 

It is a cautionary tale for any President who is considering the 

use of military force that since World War II, the only war our nation has fought that was as popular with the American people at 

the end as it was at the beginning was the Gulf War of 1990 to 

1991. This was because military force was used in that conflict in 

service of a critical national purpose, the objective of the military 

operation was clear, the strategy to achieve that objective was 

sound, the military resources committed to the effort matched the 

strategy, a coalition of U.S. allies and affected regional states were 

involved, and the objective was achieved in relatively short order, 

and the resulting peace was sustainable. Virtually every other military operation has lacked one or more of these elements of success. 

Perhaps the most challenging element from a policy perspective 

is developing a sound strategy that will achieve the objective. This 

was brought home to me in a conversation with President George 

W. Bush in January of 2007, just days before he was to announce 

the change of strategy and surge of additional forces into Iraq. 

After being assured once again that his national security team believed that the new strategy would achieve its objective, he made 

a simple request: if you ever change your mind on this point, you 

must let me know, for I cannot send men and women in uniform 

into war if we do not have a strategy that will win. 

This is the mindset that the nation must have when it decides 

to use military force. It must have a strategy to succeed. If it does 

not, then our military should not be sent to war. And if our military is sent into combat, then it should have the resources, rules 

of engagement, and support that will allow it to succeed. The military instrument is too precious to be used just to avoid the consequences of a policy failure. 

And the same consideration should apply to Americans who risk 

their lives serving as the nation’s diplomats, intelligence officers, 

development professionals, and peace-builders. 

This is especially true because often their work is essential to 

consolidating the success achieved by our military. Many of the nation’s efforts overseas have failed on exactly this point. The military objective has been achieved, but we have failed in helping 

post-conflict societies consolidate the military victory and achieve a 

stable and sustainable peace. 

Military planning needs to take this into account. John Allen, the 

retired military general officer who led U.S. forces in both Afghanistan and Iraq, has made this point in reflecting on lessons learned 

from these two conflicts. Planning for a military operation needs to 

begin with the desired end state. In military parlance, that means 

starting with phase 4 and working backwards towards phase 1. 

Whatever is done militarily must contribute to the desired end 

state. 

And this planning effort must involve from the start civilian elements of the U.S. Government in developing an integrated strategy. A stable and sustainable peace that will not give rise to 

threats to American lives and interests often will require helping 

FOREI-42327 with DISTILLER

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local actors develop institutions of good governance, economic development, and security. This is the work of civilian actors, every 

bit as important as our military. 

Because of the importance of the decision, because it involves the 

lives of Americans, the use of military force must have the support 

of Congress and the American people. Congress is critical because 

it both reflects and shapes public opinion. But Congress needs to 

decide what role it wants to have in the decision to use military 

force and reach a mutual understanding with the President, whoever he or she may be. 

It is now established practice that there is some level of the use 

of military force that the President can take without prior congressional approval. There are numerous precedents under both Democratic and Republican Presidents. At the same time, it has been the 

practice of both Democrats and Republican Presidents to bring 

major military operations to the Congress first. Problems arise 

when the line between those alternatives is not observed. 

My own view is that for a major military operation that carries 

a risk of American military casualties, a high risk of civilian casualties, especially among U.S. friends and allies, has major geopolitical implications for American interests and position in the 

world, and in which American friends and allies have a major 

stake, prior congressional approval would be the wiser course. And 

any such action should be legal under both domestic and international law. 

Thank you very much. 

[Mr. Hadley’s prepared statement follows:] 

PREPARED STATEMENT OF HON. STEPHEN J. HADLEY

Chairman Corker, Ranking Member Cardin, and other distinguished members of 

the committee. Thank you for the opportunity to appear before you this morning on 

such an important subject. 

The decision to use military force is perhaps the most consequential decision that 

this nation can make. It can have enormous consequences for our nation’s security, 

prosperity, and role in the world. It can have enormous consequences for other countries and their peoples. But most of all, it has the most serious consequences for 

our country’s most precious resource—the lives of its citizens.The decision to use 

military force is the decision to put those Americans serving in our military in 

harm’s way—at risk of death and serious injury. Such a decision must be made with 

the greatest seriousness, consideration, and care. 

It is a cautionary tale for any President who is considering the use of military 

force that since World War II the only war our nation has fought that was as popular with the American people at the end as it was at the beginning was the Gulf 

War of 1990-1991. This was because military force was used in that conflict in service of a critical national purpose, the objective of the military operation was clear, 

the strategy to achieve that objective was sound, the military resources committed 

to the effort matched the strategy, a coalition of U.S. allies and affected regional 

states was involved, the objective was achieved in relatively short order, and the resulting peace was sustainable. Virtually every other major military operation has 

lacked one or more of these elements of success. 

Perhaps the most challenging element from a policy perspective is developing a 

sound strategy that will achieve the objective. This was brought home to me in a 

conversation with President George W. Bush in January of 2007, just days before 

he was to announce the change of strategy and ‘‘surge’’ of additional forces into Iraq. 

After being assured once again that his national security team believed that the 

new strategy would achieve its objective, he had a simple request: ‘‘if you ever 

change your mind [on this point], you must let me know—for I cannot send men 

and women in uniform into war if we don’t have a strategy that will win.’’ 

This is the mindset that the nation must have when it decides to use military 

force. It must have a strategy to succeed. If it doesn’t, then our military should not 

FOREI-42327 with DISTILLER

8 

be sent to war. And if our military is sent into combat, then it should have the resources, rules of engagement, and support that will allow it to succeed. The military 

instrument is too precious to be used just to avoid the consequences of failure. It 

should only be used to achieve success and a military objective in service of a critical 

national purpose. Borrowing from the Star Wars movie ‘‘The Empire Strikes Back,’’ 

when it comes to the use of military power, the Yoda rule applies: ‘‘Do or do not. 

There is no try.’’ The lives of our Americans in uniform are simply too precious. 

And the same consideration should apply to Americans who risk their lives serving as the nation’s diplomats, intelligence officers, development professionals, and 

peace-builders. They too should be used in service of a critical national purpose, 

with clear objectives, a sound strategy to achieve those objectives, and with adequate resources matched to the strategy. 

This is especially true because often their work is essential to consolidating the 

success achieved by our military. Many of the nation’s efforts overseas have failed 

on exactly this point. The military objective has been achieved. But we have failed 

in helping post-conflict societies consolidate the military victory and achieve a stable 

and sustainable peace. This is not U.S. nation-building. A nation can only be built 

by the people who live there. But it is helping those people create the institutions 

that will prevent their nation from being used to threaten the United States and 

its friends and allies. 

Military planning needs to take this into account. John Allen, the retired Marine 

general officer who led U.S. forces in both Afghanistan and Iraq, has made this 

point in reflecting on lessons learned from these two conflicts. Planning for a military operation needs to begin from the desired end-state. In military parlance, that 

means starting with Phase IV and working backwards to Phase I. Whatever is done 

militarily must contribute to the desired end state. 

This planning effort must involve from the start the civilian elements of the U.S. 

Government in developing an integrated strategy. A stable and sustainable peace 

that will not give rise to threats to American lives and interests often will require 

helping local actors develop institutions of good governance, economic development, 

and security. This is the work of civilian actors every bit as important as our military. 

It is often said that military force should only be used as a last resort—after all 

other options have been tried, exhausted, and failed. The sentiment behind such 

statements is understandable, laudable, and worthy of respect. But it suggests a 

false ‘‘either/or’’ choice between military force and every other instrument of national power and influence. Yet we know from practical experience that sometimes 

only the coordinated use of all elements of national power—diplomatic, economic, 

and military—as part of an integrated strategy can achieve an important national 

objective. As many of our nation’s top diplomats have been quick to say, the threat 

or judicious use of military power is often an essential element of a successful diplomatic initiative. 

Because of the importance of the decision—because it potentially involves the 

lives of American citizens—the use of military force needs the support of the Congress and the American people. Congress is critical because it both reflects and 

shapes public opinion. Congress needs to decide what role it wants to have in the 

decision to use military power and reach a mutual understanding with the President whoever he or she may be. 

It is now established practice that there is some level of use of military force that 

a President can take without prior Congressional approval. There are numerous 

precedents under both Democratic and Republican presidents. At the same time, it 

has been the practice of both Democratic and Republican presidents to bring major 

military operations to the Congress first. Problems arise when the line between 

these two alternatives is not clear or not observed. 

For example, take the decision by President Obama in 2013 to seek Congressional 

approval before ordering a military strike in Syria over its use of chemical weapons. 

I supported President Obama’s decision to use force and to bring the matter first 

to the Congress. But Jim Jeffrey, a distinguished retired U.S. ambassador, has argued that the planned military operation was of a scope and scale that many previous presidents had undertaken without prior Congressional approval. The last 

previous military operation brought to Congress for its prior approval had been 

President George W. Bush’s decision to go into Iraq in 2003. Jim believes that many 

Americans assumed that because the Syrian action was being taken to Congress for 

prior approval, President Obama must have had in mind a military operation of 

similar scale and scope. President Obama clearly did not, but the confusion may 

have produced a significant portion of the opposition to what President Obama proposed to do. 

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Congressional leadership and President Trump should come to an understanding 

of what is the line between what proposed military operations should be brought 

to the Congress for prior approval and what should not. Going into this conversation, Congressional leaders will have in mind preserving Congressional prerogatives 

and its role in the use of force. But it will also have to consider that in some cases 

it may prefer not to be implicated in the decision itself so as better to exercise disinterested after-the-fact oversight of the decision based on the results. The President 

will also be protective of his prerogatives as Commander in Chief and Chief Executive. But he will have to consider his need for Congressional funding for any military operation and the benefit of Congressional support in winning and maintaining 

the long-term support of the American people for the military effort. 

My own view is that for a major military operation that carries a high risk of 

American military casualties, a high risk of civilian casualties especially among U.S. 

allies and friends, that has major geopolitical implications for American interests 

and position in the world, and in which American friends and allies have a major 

stake, prior Congressional approval would be the wiser course. And any such action 

should be legal under both domestic and international law. 

In making a decision to use military force, the President and the Congress must 

of course give due regard to public sentiment. But the decision cannot be dictated 

by the most recent public opinion poll. The American people are not isolationist. But 

they rightly give priority to the work that needs to be done here at home to ensure 

security and prosperity. They will support a military operation overseas but only if 

their political leaders make the case: what critical national purpose is involved, why 

is military action necessary, what is the objective of the military action, what is the 

strategy for achieving that objective, what other countries are doing to help, and 

why it is critical that the operation succeed. 

History shows that if the President is willing to lead, win the political and resource support from the Congress, and make the case for the military action, the 

American people generally will support it. 

Maintaining public support will require constant attention. I once asked President 

George W. Bush why he insisted on giving so many speeches on the war on terror. 

He made the point that when our military is engaged, the President needs continually to explain what is at stake, what is the strategy, why it will succeed, and why 

this is critical to the well-being of our nation. In doing so, the President also shows 

both his commitment to the military effort and his confidence in it. This is something that our military personnel and their families need to hear, and that our 

friends, allies, and adversaries all need to hear. The longer the military effort will 

take, the more important is the communications effort. 

But in the end the American people will judge the military effort by its success 

or lack thereof. Support is lost if the public does not see progress, loses confidence 

in the strategy, and/or doubts the President’s ability to execute the strategy successfully. A seemingly endless military operation producing little in the way of success 

and a constant stream of casualties will, over time, cause the public to question the 

whole premise of the operation. That is why the oversight role of Congress is so important in holding the President’s feet to the fire on the purpose, objective, strategy, 

and execution of any major military operation. The American people should expect 

no less. 

The CHAIRMAN. Thank you very much. 

Christine? 

STATEMENT OF HON. CHRISTINE E. WORMUTH, FORMER 

UNDER SECRETARY OF DEFENSE FOR POLICY, WASHINGTON, D.C. 

Ms. WORMUTH. Good morning. Thanks, Chairman Corker, Ranking Member Cardin, and members of the committee, for the opportunity to be here this morning to talk with you about such an important issue. 

I fully agree with Mr. Hadley that the decision to use force is one 

of the most consequential our leaders can make, with implications 

not just for our military forces, but our public, of course, and as 

well, countries around the world. 

Throughout history, there are many examples of countries that 

decided to use force to address an immediate threat in the hopes 

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10 

of bringing about a clear resolution, only to find themselves still 

engaged militarily in the same place years, if not decades later. I 

suspect when Truman made the decision to come to South Korea’s 

aid in the 1950s, he did not envision the possibility that we would 

still have troops on the peninsula in 2017. 

Similarly, history is full of examples of countries that decided to 

use force thinking that they would prevail quickly only to find that 

wars can drag on longer and be far costlier than originally thought. 

In 1914, Kaiser Wilhelm and his generals thought that they could 

make quick work of France and Russia and keep Britain out of the 

war altogether, but they were defeated 4 long and bloody years 

later in World War I. And we in the United States only have to 

look at our more recent wars to see how they can defy their original timelines, whether it is in Vietnam, Iraq, or Afghanistan. 

Clausewitz reminds us that war is unpredictable. He cautions us 

that no one should start a war, or rather, no one in his senses 

ought to do so, without first being clear in his mind what he intends to achieve by that war and how he intends to conduct it. 

When deciding to use force, a nation and its leaders must think 

deeply about what national interests are at stake, whether those 

interests are sufficiently vital to merit putting lives at risk, and 

whether there is a strategy to achieve the desired goal. There has 

to be a clear understanding of what the strategic objectives are, a 

vision for how all of the instruments of power, not just the military, 

but also our diplomatic, economic, and other instruments, can come 

together and be used and confidence that those instruments of 

power are going to be sufficiently resourced to be able to achieve 

the goal. 

We only have to look at our ongoing operations in the Middle 

East and Afghanistan to realize that aligning all of these elements 

of strategy is much easier said than done. 

In the complicated security environment we now face, policymakers may find it tempting to reach for the most well-resourced 

tool in our foreign policy toolkit, the U.S. military. Our military, as 

you all know, is extraordinarily capable and compared to State, 

AID, and other elements of our government, it is also well-funded. 

But almost every current security challenge we face requires 

more than kinetic action. As Mr. Hadley has said in his testimony, 

force alone cannot carry the day. I personally worry that the U.S. 

military has been carrying a very heavy burden for many years 

now and that an imbalance has kind of crept into how we address 

our foreign policy challenges as a result. 

While we need to bring all of the instruments of national power 

to bear on the security challenges we face, there are certainly going 

to be times when we are called to use force, and both Republican 

and Democratic Presidents have sometimes decided to do that 

without seeking prior approval from Congress. 

At the same time, when a President is contemplating a major or 

prolonged use of force, the President generally has come to Congress in advance. President Bush did so before he sent the military 

into Afghanistan and Iraq. President Obama sought congressional 

approval when it came to strikes in Syria in 2013. And in the context of North Korea’s continued effort today to develop a capability 

to strike the United States with a nuclear ICBM, military options 

FOREI-42327 with DISTILLER

11 

to fully address that threat would likely rise, in my view, to the 

level that has typically triggered Presidents to seek advanced congressional authorization. 

But there is not an established rule or set of criteria for when 

a potential use of force crosses the threshold requiring the President to come to Congress in advance. The Constitution gives both 

branches of government important roles in decisions about the use 

of force, to include giving Congress the power of the purse. But 

there are many different factors that go into how exactly each 

branch carries out its roles at any given time. 

Despite these challenges, seeking congressional support in advance for major or prolonged uses of force is sound. Clausewitz 

comes to mind here as well, reminding us of the importance of public support, both when deciding to go to war but also retaining public support in order to finish the job. 

The debate about whether the 2001 AUMF should be replaced 

with a new authorization is not just about whether it can be 

credibly interpreted to encompass what we are doing today to fight 

ISIS and other similar groups. But it is also, it seems to me, about 

whether Congress is adequately involved in the current decisions 

to use force and is conducting sufficient oversight on behalf of the 

American people. I think this is a very healthy and important debate, and I support this committee’s effort to draft a new AUMF 

that would clearly address the challenges we are facing. 

In today’s environment, conflicts seem less black and white than 

in the past. The fight against ISIS and al Qaeda is a transregional 

fight, and it is likely to be generational. The bad guys are not 

wearing uniforms, and information technology and social media has 

extended the reach of adversaries and allies alike in profound 

ways. And as a result, I think it is essential that Americans understand and support our activities overseas. Talking to Americans 

about what is at stake in the world, why the U.S. is doing what 

it is doing, and why it matters will help the public decide what engagements to support with what resources and for how long. I 

think most Americans want our country to continue to be a leader 

in the world, but in ways that are fair and make sense and do not 

get in the way of our ability to address problems here at home. 

They are not going to give the President or Congress a blank check, 

and as a result, I think our leaders need to talk to them on a regular basis. This hearing is a great opportunity to do that, and I 

commend you for holding it. 

[Ms. Wormuth’s prepared statement follows:] 

PREPARED STATEMENT OF HON. CHRISTINE E. WORMUTH

Good morning. Thank you, Chairman Corker, Ranking Member Cardin and members of the committee, for the opportunity to testify this morning. 

It is an honor to appear before you today to discuss such a critical issue. The decision to use military force is one of the most consequential decisions our leaders can 

make, with implications not just for our military, but also for our diplomats and 

other civilians who work overseas, our allies and friends around the world, and of 

course the American public. 

Since the September 11, 2001 attacks on the United States, we have used military 

force in many different places around the world, beginning with Operation Enduring 

Freedom in Afghanistan and then in Operation Iraqi Freedom, but more recently 

in Libya, Syria, Yemen, and Somalia just to name a few. 

FOREI-42327 with DISTILLER

12 

Throughout history, there are many examples of countries that decided to use 

force to address an immediate threat in the hopes of bringing about a clear resolution, only to find themselves still engaged militarily in the same place years, if not 

decades later. I suspect when President Truman made the decision to come to South 

Korea’s aid in 1950, he did not envision the possibility that the United States would 

still have large numbers of troops on the Korean peninsula in 2017. 

Similarly, history is also full of examples of nations deciding to use force thinking 

they would prevail relatively quickly and easily only to find that wars can drag on 

longer and be far costlier than originally thought. Kaiser Wilhelm and his generals 

thought they could make quick work of France and Russia, and keep Britain out 

of the war altogether but were defeated in World War I four long and bloody years 

later. We in the United States have seen our own more recent wars defy their original timelines, whether in Vietnam, Iraq or Afghanistan. 

Clausewitz reminds us that war is unpredictable. Because war rarely goes as 

planned and can be extremely costly in both blood and treasure, he cautions us that 

‘‘no one starts a war—or rather, no one in his senses ought to do so—without first 

being clear in his mind what he intends to achieve by that war and how he intends 

to conduct it.’’ 

When deciding whether to use force, a nation and its leaders must think deeply 

about what national interests are at stake, whether the interests at stake are sufficiently vital as to merit using force and putting lives at risk, and whether there is 

a viable strategy to achieve the desired goal. In terms of strategy, there needs to 

be a clear understanding of the strategy’s objectives, a vision for how all instruments of power—military, diplomatic, economic and so on—will be used to achieve 

the objectives, and confidence that those instruments of power will be sufficiently 

resourced. 

One only has to look at our ongoing operations in the Middle East and Afghanistan to realize that aligning each of these elements of strategy is much easier said 

than done, particularly in today’s world which is much more complicated than the 

Westphalian world of Carl von Clausewitz. The United States still faces nation state 

adversaries such as North Korea and Iran, but we also find ourselves in hybrid wars 

against non-state actors like ISIS and we are dealing with gray zone tactics in 

Ukraine and places like the South China Sea. 

In this complicated security environment, policy makers may find it tempting to 

reach for the most well-resourced tool in the U.S. foreign policy tool kit—the U.S 

military. Our military is extraordinarily capable, and compared to State, USAID 

and other parts of our government, it is also well funded. But almost every current 

security challenge we face requires more than just kinetic action. For success to be 

sustainable, we need diplomats, development and economic experts, and civil society 

and judicial experts to work with countries on critical issues like reconstruction, 

fighting corruption, strengthening governance and so on. Force alone can’t carry the 

day. I worry that the U.S. military has been carrying a heavy burden for many 

years now, and that an imbalance has crept into how we address foreign policy challenges. 

While we need to bring all of our instruments of national power to bear on the 

security challenges we face, there certainly will be times when our strategy calls for 

us to use force, and there are many examples of both Republican and Democratic 

presidents deciding to use force without prior approval from Congress. President 

Reagan did so in Libya in 1986, President Clinton did in Kosovo in 1999, President 

Obama authorized force in Libya in 2011, and President Trump authorized strikes 

in Syria earlier this year in response to its latest use of chemical weapons against 

its own people. 

At the same time, in those cases where the President is contemplating a major 

use of force or one where there could be significant geopolitical consequences for the 

United States and its allies and friends, presidents have generally come to Congress 

in advance to seek its support. President Bush came to Congress before sending the 

military into Afghanistan and Iraq. President Obama sought Congressional support 

for strikes against Syria in 2013. In the context of heightened tension on the Korean 

peninsula today and North Korea’s continued effort to develop the capability to 

strike the United States with a nuclear ICBM, military options to fully address that 

threat would likely rise to the level that has typically triggered Presidents to seek 

Congressional authorization. 

There is no established rule or set of criteria that outline when a potential use 

of force crosses the threshold requiring the President to seek prior approval from 

Congress. The Constitution gives both branches of government important roles in 

decisions about use of force, to include giving Congress the power of the purse, but 

many different factors influence exactly how each branch carries out those roles at 

any given moment in time. Decisions about the use of force are also a heavy responFOREI-42327 with DISTILLER

13 

sibility and usually are not easy or straightforward. In 2013, some of President 

Obama’s advisors reportedly discouraged him from seeking Congressional approval 

for strikes in Syria precisely because they worried Congress would say no. Once the 

Obama Administration sought Congressional support and began making the case for 

the intervention here on Capitol Hill, members had to grapple with the challenges 

of sharing responsibility for the decision. 

Despite the challenges, seeking Congressional support for major or prolonged uses 

of force with the potential for significant geopolitical consequences is sound. Clausewitz comes to mind here as well, reminding us of the importance of public support, 

both when deciding to go to war as well as retaining public support over the longer 

term to be able to finish the job. Congress and the public are not one and the same, 

but Congress is an important proxy for the broader American public. 

The debate about whether the 2001 AUMF should be replaced with a new authorization is not just about whether the original authorization can be credibly interpreted to encompass what the United States is doing today to fight ISIS and other 

similar groups outside of Iraq and Afghanistan, but also is about whether Congress 

is adequately involved in current decisions to use force and is conducting sufficient 

oversight on behalf of the American people. I believe this is a healthy and very important debate, and I support this committee’s effort to craft a new AUMF that 

would clearly address the current challenges we face. 

In today’s environment, conflicts seem to be longer and less black and white than 

in the past. The fight against ISIS, al Qaeda and others like them is trans-regional 

and likely generational. The bad guys often don’t wear uniforms, advanced technology is more available than ever before, battlefields have become increasingly 

complex and information technology and social media have profoundly extended the 

reach of allies and adversaries alike. In this complex environment, it is more essential than ever that Americans understand and support our activities overseas. As 

Prime Minister during World War II, Winston Churchill frequently gave speeches 

to the British Parliament and the British public to explain what the Allies were 

doing and why. I believe our leaders, in the White House and here in Congress, 

need to do that more often today. Talking to Americans about what is at stake in 

the world, why the United States is doing what we are doing overseas and why it 

matters to Americans will help the public decide which engagements to support, 

with what resources and for how long. I think most Americans want our country 

to continue being a leader in the world, but in ways that are fair, make sense and 

don’t get in the way of us being able to take care of important matters here at home. 

They aren’t going to give any President or Congress a blank check, nor should they, 

so our leaders need to make the case for what we are doing overseas clearly and 

regularly. 

This hearing, and others this committee has held recently are an important contribution to this needed dialogue between the American public and its leaders. I 

commend you for your leadership in this area, and for your broader focus on the 

role of Congress and the Executive branch in critical use of force decisions. 

The CHAIRMAN. Thank you so much. 

John? 

STATEMENT OF HON. JOHN B. BELLINGER III, FORMER NATIONAL SECURITY COUNCIL LEGAL ADVISOR, WASHINGTON, 

D.C. 

Mr. BELLINGER. Thanks very much, Mr. Chairman, Ranking 

Member Cardin. It is a privilege to be back again before this committee. 

I am the lawyer on the panel and will be focusing on the laws 

and the legal issues governing the use of military force. And I have 

to say it is a particular pleasure for me to be back with my former 

colleague and boss, Steve Hadley, as well as Christine Wormuth. 

Congress has an important role to play regarding war powers 

and the use of force, and I commend the chairman and this committee for devoting substantial attention to these issues. It is long 

overdue. So I commend you for this series of hearings. 

When a President and his national security advisors consider the 

use of military force in or against another country, they must take 

FOREI-42327 with DISTILLER

14 

into account the domestic and international laws governing the use 

of force. As the head of government and commander-in-chief of the 

armed forces of a nation that is committed to the rule of law, the 

President must follow these rules. 

It is also important that the President and the executive branch 

explain the legal and policy basis for any use of force by the United 

States. When the United States does not explain the legality of its 

actions, it appears to act lawlessly and it invites other countries to 

act without legal basis or justification. 

So let me briefly explain the applicable domestic and international rules. 

Under Article II of the Constitution, the President has broad authority to order the use of force by the U.S. military without congressional authorization not only to defend the United States 

against actual or anticipated attacks, but also to advance other important national interests such as regional security or addressing 

humanitarian crises. Presidents of both parties have deployed U.S. 

forces and ordered the use of military force without congressional 

authorization on numerous occasions. 

Article I of the Constitution, however, gives to Congress the authority to declare war. This authority has never been interpreted 

to require congressional authorization for every military action the 

President may initiate. However, the provision may require the 

President to seek congressional approval before ordering the military to launch a prolonged or substantial military engagement that 

would expose the U.S. military, U.S. civilians, or U.S. allies to significant risk of harm. 

Although the President does have broad constitutional authority 

to order the use of force without congressional authorization, Presidents of both parties have generally preferred to seek congressional 

authorization if it is possible to secure for any prolonged or substantial use of force. As Christine noted, President George Bush secured congressional authorization for the use of force against terrorist groups in 2001 and also against Iraq in 2002. 

When authorizing the use of force or deployment of armed forces, 

Presidents must also take into account the War Powers Resolution. 

The resolution requires the President to notify Congress within 48 

hours after armed forces are introduced into hostilities or where 

hostilities are imminent or into the territory of a foreign nation 

while equipped for combat. And it also requires the President to 

terminate any introduction or use of armed forces into hostilities 

within 60 days unless Congress issues a specific authorization. 

Now, I should note that the War Powers Resolution is outdated 

and it should be revised. The committee should consider the War 

Powers Consultation Act of 2014, which was introduced by Senators McCain and Tim Kaine, to implement the recommendations 

of the National War Powers Commission. So I hope you will have 

a look at the War Powers Resolution itself. 

Now, the President must also consider international law rules, 

including treaties to which the United States is a party and certain 

principles of customary international law. The UN Charter prohibits the United States from using force against or in another 

member state unless authorized by the Security Council or the 

state consents to the use of force. Article 51 of the charter recogFOREI-42327 with DISTILLER

15 

nizes that every state has an inherent right to use force in individual or collective self-defense to respond to an armed attack or 

to prevent an imminent attack. 

So let me end by discussing the application of these rules very 

briefly to two events: the U.S. airstrike on Syrian bases in April 

and to a possible use of force against North Korea. 

In Syria, the President did not have congressional authorization, 

and he instead relied on his constitutional authority as commander-in-chief. The administration did not cite an international 

law basis for the strikes. I would urge the administration to explain the factors that it believed justified the attack on Syria under 

international law. 

And finally, with respect to North Korea, the President has constitutional authority to order the use of military force against 

North Korea without congressional authorization if he concludes 

that the use of force is necessary to protect important national interests. However, if the use of military force would clearly be substantial or prolonged or would pose a substantial risk to U.S. forces 

or American civilians, it may require congressional approval. 

Under international law, if the Security Council does not approve 

a use of force against North Korea, the President would have to 

conclude that the use of force was in self-defense of the United 

States or its allies in response either to an actual armed attack or 

an attack the President determined to be imminent. And any use 

of force against North Korea would have to be proportionate to the 

threat posed by North Korea. 

Thank you for inviting me here today. The committee has a critical role to play on these war powers issues. 

[Mr. Bellinger’s prepared statement follows:] 

PREPARED STATEMENT OF HON. JOHN B. BELLINGER III 

Mr. Chairman, Ranking Member Cardin, and members of the committee, thank 

you for inviting me to testify today about the law applicable to the use of military 

force by the United States. It was a privilege to appear before the committee in 

June to discuss congressional authorizations for the use of military force against terrorist groups, and I’m delighted to return to discuss the broader set of domestic and 

international law rules governing use of force. This committee and Congress have 

a key constitutional role in authorizing and overseeing the deployment and use of 

U.S. armed forces. 

I served as Senior Associate Counsel to the President and Legal Adviser to the 

National Security Council from 2001-2005 and later as Legal Adviser to the State 

Department from 2005-2009 during the George W. Bush administration. During 

these eight years, I spent a substantial amount of time advising the President and 

senior national security policy officials on the domestic and international law applicable to the use of force against the Taliban and Al Qaida and associated groups 

in various countries; against the government of Saddam Hussein in Iraq; and to address other threats to our national security. I also had extensive discussions with 

officials from other countries about these issues. 

When a President and his national security advisers consider the use of military 

force in or against another country, they must take into account domestic and international laws governing the use of force. As a matter of U.S. law, these laws include 

the U.S. Constitution and laws passed by Congress, including the War Powers Resolution of 1973. As a matter of international law, the rules include the U.N. Charter, 

treaties governing the use of military force, and certain principles of customary 

international law. 

As the head of government and Commander-in-Chief of the armed forces of a nation committed to the rule of law, the President must follow these domestic and 

FOREI-42327 with DISTILLER

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1See John B. Bellinger III, ‘‘Law and the Use of Force: Challenges for the Next President,’’ 

Sixth Annual Lloyd Cutler Rule of Law Lecture, November 20, 2016. https:// 

www.lawfareblog.com/my-lloyd-cutler-rule-law-lecture-law-and-use-force-challenges-next-president 2See, e.g., ‘‘Legal Issues in the War on Terrorism,’’ Address at the London School of Economics, October 31, 2006 https://www.state.gov/s/l/2006/98861.htm 3https://obamawhitehouse.archives.gov/sites/whitehouse.gov/files/documents/Legal—Policy— 

Report.pdf 4See Barbara Salazar Torreon, Cong. Research Service, Instances of Use of United States 

Armed Forces Abroad, 1798-2017 (October 12, 2017). 5See, e.g., Authority to Use United States Military Forces in Somalia, 16 Op. O.L.C. 6 (1992); 

Deployment of United States Armed Forces into Haiti, 18 Op. O.L. C. 173 (1994); Proposed Deployment of United States Armed Forces into Bosnia, 19 Op. O.L.C. 327 (1995); Authority of 

the President Under Domestic and International Law to Use Military Force Against Iraq (October 23, 2002); Authority to Use Military Force in Libya (April 1, 2011) 6 Congress has issued eleven declarations of war: Great Britain (1812); Mexico (1846); Spain 

(1898); Germany (1917); Austria-Hungary (1917); Japan (1941); Germany (1941); Italy (1941); 

Bulgaria (1942); Hungary (1942); Romania (1942). https://www.senate.gov/pagelayout/history/h— 

multi—sections—and—teasers/WarDeclarationsbyCongress.htm 

international legal rules.1 I hope that President Trump’s legal and policy advisers 

have educated him on the legal rules that govern his actions. 

It is also important that the President and Executive branch officials explain the 

legal and policy basis for any use of force by the United States. When I was Legal 

Adviser of the State Department, I gave numerous speeches about the domestic and 

international law authority for U.S. military operations against Al Qaida and the 

Taliban.2 Obama administration officials gave many similar speeches. In December 

2016, President Obama issued a report that described the domestic and international bases for the United States’ ongoing use of military force overseas and the 

legal and policy frameworks his administration had developed to govern such uses 

of force and related national security operations, such as detention, transfer, and 

interrogation operations.3

Congress also has an important role to play regarding war powers and the use 

of force. Congress should insist that the President comply with applicable domestic 

and international legal rules and explain the legal basis for actual or potential uses 

of force and military operations. Congress should authorize the President to use 

military force when appropriate. And Congress should exercise appropriate oversight of military operations, consistent with the President’s role as Commander-inChief. 

Separate from his authority to use force, the President also has constitutional authority to deploy the U.S. military in other countries and the Secretary of Defense 

has statutory authority to train and equip the security services of foreign countries. 

Domestic Law Authority 

A. Constitutional Authority 

Under Article II of the Constitution, the President has broad authority as Commander-in-Chief and Chief Executive to order the use of force by the U.S. military. 

His Article II powers include authority not only to order the use of military force 

to defend the United States and U.S. persons against actual or anticipated attacks 

but also to advance other important national interests. 

Presidents of both parties have deployed U.S. forces and ordered the use of military force, without congressional authorization, on numerous other occasions.4 For 

example, President George H.W. Bush ordered U.S. troops to Panama in 1989 to 

protect U.S. citizens and bring former President Noriega to justice. President Clinton ordered the deployment of U.S. forces to Haiti in 1994 and U.S. participation 

in NATO bombing campaigns in Bosnia and Kosovo in 1995 and 1999. President 

Obama ordered the U.S. military to participate in the bombing campaign of Libya 

in 2011. 

The Department of Justice’s Office of Legal Counsel has written numerous opinions, under both Republican and Democratic Presidents, determining that the President has the power to commit troops and take military actions to protect a broad 

array of national interests, even in the absence of a Congressional authorization, including for the purpose of protecting regional stability, engaging in peacekeeping 

missions, and upholding U.N. Security Council Resolutions. For example, the Office 

of Legal Counsel concluded that the President had the power, without congressional 

authorization, to deploy U.S. forces and use military force in Somalia in 1992, in 

Haiti in 1994, in Bosnia in 1995, in Iraq in 2002, and in Libya in 2011.5

Of course, in addition to the powers granted to the President in Article II, Article 

I of the Constitution gives to Congress the authority to ‘‘declare War.’’ 6 But this authority has never been interpreted—by either Congress or the Executive—to require 

FOREI-42327 with DISTILLER

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7Deployment of United States Armed Forces into Haiti, 18 Op. O.L. C. 173 (1994); Proposed 

Deployment of United States Armed Forces into Bosnia, 19 Op. O.L.C. 327 (1995); Authority 

to Use Military Force in Libya (April 1, 2011). 8https://www.foreign.senate.gov/imo/media/doc/062017_Bellinger_Testimony.pdf 9The 60-day termination provision applies only to the introduction of U.S. armed forces into 

hostilities or imminent hostilities, not to the introduction of U.S. armed forces equipped for combat. 

congressional authorization for every military action, no matter how small, that the 

President may initiate. Indeed, the War Powers Resolution itself, implicitly recognizes that a President may order the U.S. military into hostilities without congressional authorization, provided that he notifies Congress within 48 hours and ceases 

the use of force after sixty days unless he receives congressional authorization. 

In several opinions, the Office of Legal Counsel has acknowledged that the ‘‘declare War’’ clause may impose a potential restriction on the President’s Article I 

powers to commit the U.S. military into a situation that rises to the level of a 

‘‘war.’’ 7 This possible limitation appears only to have been recognized by OLC under 

Democratic administrations; war powers opinions written by OLC during Republican administrations do not appear to have recognized that the ‘‘declare war’’ clause 

places any restriction on the President’s Article II powers. And even during Democratic administrations, OLC has stated that whether a particular planned engagement constitutes a ‘‘war’’ for constitutional purposes ‘‘requires a fact-specific assessment of the ‘anticipated nature, scope, and duration’ of the planned military operations’’ and that ‘‘This standard generally will be satisfied only by prolonged and 

substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period.’’ OLC determined that this 

standard was not met with respect to President Clinton’s use of the U.S. military 

in Haiti in 1994 and in Bosnia in 1995 or President Obama’s use of the U.S. military in Libya in 2011. 

Although OLC has yet to identify a specific situation where the ‘‘declare war’’ 

clause would limit the President’s independent authority to order the use of military 

force and require congressional authorization, this does not mean that such circumstances will never exist. If a President wished to order the U.S. military to 

launch a prolonged or substantial military engagement that is not in response to 

an attack or clearly imminent attack and that would expose the U.S. military, U.S. 

civilians, or U.S. allies to significant risk of harm over a substantial period, there 

is a strong argument that the President may be required to seek congressional approval. It would certainly be prudent for him to do so. 

B. Congressional Authorization 

Although the President has broad constitutional authority to order the use of force 

without congressional authorization, Presidents of both parties have generally preferred to seek congressional authorization, if it is possible to secure, for any prolonged or substantial use of force. 

President George W. Bush, for example, sought and secured congressional authorization for the use of force against terrorist groups in 2001 (‘‘2001 AUMF’’) and 

against Iraq in 2002 (‘‘2002 AUMF’’). President George H.W. Bush sought and secured a congressional authorization for the use of force against in Iraq in 1991. 

In my previous testimony before this committee in June 2017, I urged Congress 

to pass a new AUMF that repeals the 2001 Authorization to Use Military Force 

against terrorist groups and the 2002 Authorization to Use Military Force in Iraq 

and replaces them with a comprehensive new AUMF that authorizes the use of force 

against the Taliban, Al Qaida, and ISIS.8 I applaud Chairman Corker’s continued 

efforts to draft a new authorization, as well as the new draft AUMF introduced by 

Senators Kaine and Flake. 

C. War Powers Resolution 

When authorizing the use of force or deployment of U.S. armed forces, Presidents 

must also take into account the War Powers Resolution of 1973. Section 4 of the 

War Powers Resolution requires the President to notify Congress within 48 hours 

after U.S. armed forces are introduced 1.) into ‘‘hostilities’’ or where hostilities are 

imminent; 2.) into the territory, airspace or waters of a foreign nation, while 

‘‘equipped for combat’’; 3.) in numbers which substantially enlarge United States 

Armed Forces equipped for combat already located in a foreign nation. Section 5(b) 

of the Resolution requires the President to terminate any introduction or use of US 

armed forces into hostilities within 60 days unless Congress issues a specific authorization.9 Presidents of both parties have concluded that some parts of the War Powers Resolution are unconstitutional, though all Presidents have tried to act ‘‘conFOREI-42327 with DISTILLER

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10See, e,g., Campbell v Clinton, 52 F. Supp 2d 34 (DDC 1999)(dismissing suit against President Clinton relating to NATO bombing campaign in Serbia)(citing cases); Smith v. Obama, 217 

F. Supp 3d 283 (DDC 2016)(dismissing suit against President Obama relating to operations 

against ISIS in Iraq and Syria) (appeal pending). 11http://web1.millercenter.org/reports/warpowers/report.pdf 12http://thehill.com/blogs/floor-action/senate/195704-senate-bill-amends-war-powers-act 13See, e.g., The National Security Strategy of the United States, https://georgewbush-whitehouse.archives.gov/nsc/nss/2002/; Report on the Legal and Policy Frameworks Guiding the 

United States Use of Military Force and Related National Security Operations, https:// 

obamawhitehouse.archives.gov/sites/whitehouse.gov/files/documents/Legal_Policy_Report.pdf 

sistent with’’ the Resolution’s provisions, including by submitting regular reports to 

Congress. 

Presidents have struggled in particular with the Resolution’s 60-day termination 

requirement. President Obama continued the use of U.S. military force against 

Libya for more than 60 days in 2011 after concluding (over the purported advice 

of the Justice Department and Defense Department) that U.S. military operations 

did not constitute ‘‘hostilities’’ within the meaning of the Resolution. He later continued the use of U.S. military force against ISIS in Iraq and Syria for more than 60 

days in 2014 after concluding that the use of force against ISIS was authorized by 

congress under the 2001 AUMF, even though al Qaida had distanced itself from 

ISIS. 

On several occasions, members of Congress or of the public have sued the President for allegedly violating the War Powers Resolution by using force for longer 

than sixty days without specific congressional authorization. The courts have generally dismissed these suits, finding that the legislators or members of the public 

lack standing or that the suits raise non-justiciable political questions.10

I have previously recommended that this committee revise and update the War 

Powers Resolution. The committee should review the valuable 2008 report of the 

National War Powers Commission, a bi-partisan commission chaired by former Secretaries of State James Baker and Warren Christopher, which called the War Powers Resolution ‘‘impractical and ineffective.’’ 11 The Commission stated that no President has treated the Resolution as mandatory and that ‘‘this does not promote the 

rule of law.’’ They recommended the Resolution be repealed and replaced with a 

mandatory consultation process. In 2014, Senators McCain and Kaine introduced 

the War Powers Consultation Act of 2014 to implement the Commission’s recommendations; their bill was referred to this committee.12

International Law Rules 

When considering whether to use U.S. military force, the President and his advisers must also consider international law rules, including the treaties to which the 

United States is a party. As leaders of a nation committed to the rule of law, Republican and Democratic Presidents have generally tried to comply with these rules. Although international law rules constrain a President’s flexibility to use force, Presidents have found that our close allies and coalition partners—such as Australia, 

Canada, the United Kingdom and other European countries—are committed to following international law and expect the United States to do so as well. Moreover, 

if the United States does not comply with its international law obligations regarding 

the use of force, it is hard for the U.S. Government to criticize other governments, 

such as Russia or China or Syria, when they do not do so. It is true that certain 

international rules do not apply well to modern challenges—such as threats from 

terrorists, rogue governments that develop nuclear weapons, and governments that 

commit human rights atrocities against their nationals—but Presidents of both parties have still generally tried to abide by international law when authorizing the use 

of force in or against another country. 

The key international law rules governing the use of force are set forth in the 

U.N. Charter, a treaty which the United States ratified in 1945 after nearly unanimous (89-2) approval by the Senate. Article 2(4) of UN Charter prohibits the use 

of force against or in another UN member state unless authorized by the Security 

Council or the state itself consents to the use of force (for example, against a terrorist group operating in its territory). Article 51, however, recognizes that every 

State has an inherent right to use force in individual or collective self-defense to 

respond to an armed attack. The United States interprets this ‘‘inherent right’’ to 

include a right to use force in anticipatory self-defense to prevent an imminent attack. The George W. Bush and Obama administrations have stated that the concept 

of ‘‘imminence’’ must be interpreted flexibly with respect to contemporary threats 

such as terrorism and nuclear weapons, and that whether a particular threat poses 

an ‘‘imminent’’ threat of an armed attack will depend on the facts and circumstances.13

FOREI-42327 with DISTILLER

19 

14https://www.whitehouse.gov/the-press-office/2017/04/08/letter-president-speaker-house-representatives-and-president-pro-tempore 15Some have argued that the restrictions in the U.N. Charter on the initiation of the use of 

force would not apply to North Korea because the United States remains in a state of ongoing 

armed conflict with North Korea since the Korean War. Although North Korea and the United 

States signed an Armistice Agreement in 1953, North Korea has violated the armistice and has 

also announced on several occasions that it would not observe the armistice, which might arguably provide a legal basis for the United States to continue to use force against North Korea. 

See Charlie Dunlap, ‘‘Assessing the legal case for the use of force against North Korea; Is ‘‘armiContinued 

State consent, Security Council authorization, and self-defense are the only legal 

bases recognized in the UN Charter for a state to use force in or against another 

state. The U.N. Charter does not specifically permit a state to intervene in another 

state for humanitarian purposes. The United Kingdom and a few other countries 

have asserted that international law permits the use of force to prevent a humanitarian catastrophe in limited circumstances, but the United States and the majority 

of other countries do not recognize an international law right of humanitarian intervention. 

The foregoing international rules govern when a state may initiate the use of 

force (so called ‘‘jus ad bellum,’’ or law relating to the beginning of war). The United 

States is also party to dozens of other treaties relating to the conduct of military 

operations during hostilities (so-called ‘‘jus in bello,’’ or law in war). These treaties 

include, among others, the Hague Conventions of 1907, the Geneva Conventions of 

1949, and the U.N. Convention on Certain Conventional Weapons, and its Protocols 

on Blinding Lasers, Incendiary Devises, and Explosive Remnants of War. 

During the conduct of military operations, the United States also complies with 

principles of customary international law governing military operations, such as the 

principles of distinction, necessity, and proportionality. 

Legal Bases for Use of Force in Syria or North Korea 

On April 6, 2017, President Trump ordered air strikes against a Syrian air base 

after reports that the Syrian government used chemical weapons against Syrian civilians. He subsequently sent a War Powers report to congress stating that he was 

acting in the ‘‘vital national security and foreign policy interests of the United 

States, pursuant to my constitutional authority to conduct foreign relations and as 

Commander in Chief and Chief Executive.’’14 There would have been no justification 

for the air strikes under the 2001 or 2002 AUMFs, and the President did not cite 

any statutory authority. 

The Trump administration has never cited any international law basis for the air 

strikes in Syria and it would have been difficult to do so because there is no legal 

basis under the U.N. Charter. Although President Trump and Trump administration officials stated that the air strikes were in response to Syria’s use of chemical 

weapons, I believe the Trump administration should still have provided—and still 

should provide—a more detailed statement of the facts and factors that it believed 

justified the use of force. When President Clinton, without U.N. authorization, authorized air strikes against Serbia in 1999 in order to protect Kosovars from attack 

by Serb forces, his administration cited a variety of humanitarian factors that the 

administration believed justified the attacks. When the United States uses military 

force, especially under controversial circumstances, it should explain the legal basis 

for its actions. When the United States does not do so, it appears to act lawlessly 

and invites other countries to act without a legal basis or justification. 

With respect to North Korea, President Trump has constitutional authority as 

Commander-in-Chief and Chief Executive to order the use of military force against 

North Korea if he concludes that the use of force is necessary to protect important 

national interests. These interests could include defense of the United States, its nationals, or U.S. allies or the maintenance of regional stability in Asia. Consistent 

with previous precedents and legal opinions from both Republican and Democratic 

administrations, he could do so even without congressional authorization. However, 

if the use of military force would clearly be substantial and prolonged or would pose 

a substantial risk to U.S. forces or American civilians, it could require Congressional 

approval consistent with Congress’ authority in Article I to ‘‘declare war.’’ Under 

international law, if the Security Council had not approved a use of force against 

North Korea, the President would have to conclude that the use of force was in selfdefense of the United States or its allies in response either to an actual armed attack or an attack the President determined to be imminent. As noted above, both 

the Bush and Obama administrations have taken a more flexible position regarding 

what constitutes an ‘‘imminent’’ threat when dealing with rogue states and terrorist 

groups, although some other states disagree with the U.S. approach.15 It is certainly 

FOREI-42327 with DISTILLER

20 

stice law’’ a factor?’’ https://sites.duke.edu/lawfire/2017/09/17/assessing-the-legal-case-for-the-useof-force-against-north-korea-is-armistice-law-a-factor/ (assessing arguments made by others). 

With more than sixty years of intervening peace between the United States and North Korea, 

it would be a very hard to conclude that a state of armed conflict still exists between the two 

countries. 16 10 U.S.C. 333(a) provides: 

(a)Authority.—The Secretary of Defense is authorized to conduct or support a program or 

programs to provide training and equipment to the national security forces of one or more foreign countries for the purpose of building the capacity of such forces to conduct one or more 

of the following: 

(1) Counterterrorism operations. 

(2) Counter-weapons of mass destruction operations. 

(3) Counter-illicit drug trafficking operations. 

(4) Counter-transnational organized crime operations. 

(5) Maritime and border security operations. 

(6) Military intelligence operations. 

(7) Operations or activities that contribute to an international coalition operation that is 

determined by the Secretary to be in the national interest of the United States 

clear that North Korea’s development of nuclear weapons and repeated launching 

of ballistic missiles capable of reaching the United States pose a very serious threat 

to the United States. Even if the United States were justified in initiating the use 

of force in self-defense against North Korea, to be consistent with international law, 

any such use of force would have to be proportionate to the threat posed by North 

Korea. 

Train and Equip Authority 

In addition to the laws that govern the President’s use of military force and commitment of U.S. armed forces into hostilities, Congress should recognize that different laws govern the deployment of the U.S. military in foreign countries for purposes other than combat. 

Under Article II of the Constitution, the President has power as Commander-inChief and Chief Executive to deploy the U.S. military abroad for various purposes. 

Congress has also given the Secretary of Defense specific statutory authorization 

to use the U.S. military to ‘‘train and equip’’ foreign security forces. For many decades, Congress had authorized the State Department to provide foreign assistance 

to other countries by training their military forces. After the 9-11 attacks, starting 

in 2006, Congress began including additional authorization to the Department of 

Defense in the annual National Defense Authorization Act to train and equip foreign security forces. This authority was included in annual NDAAs until 2016, when 

it was permanently added as Section 333 of Title 10 of the U.S. Code.16 A separate 

provision, 10 U.S.C 127(e), authorizes the Secretary of Defense to provide support 

to foreign groups that provide support ongoing military operations by U.S. special 

forces. 

These ‘‘train and equip’’ authorities do not authorize the use of force by U.S. military personnel engaged in training foreign forces. However, U.S. military personnel 

in other countries are given authority by the Secretary of Defense to use force to 

defend themselves; the scope of these authorities are specified in the Rules of Engagement for particular missions. 

U.S. Military Operations In Niger 

After the tragic incident in Niger last month in which several members of the 

U.S. military were killed, some members of Congress, including members of this 

committee, have asked what was the legal basis for the presence of members of the 

U.S. military in Niger. Some members have asked whether the Defense Department 

believed that the 2001 AUMF authorized the deployment of the U.S. military to 

Niger. 

In the October hearing before this committee, Secretary of Defense Mattis clarified that U.S. military members were operating on a ‘‘train and equip’’ mission 

under Title 10 of the U.S. Code. Secretary Mattis was presumably referring to the 

authority provided to the Secretary of Defense in 10 U.S.C. 333 to train and equip 

foreign security forces. 

Accordingly, the U.S. forces in Niger were not operating pursuant to the 2001 

AUMF, because their purpose was not to use military force against persons or 

groups associated with the groups responsible for the 9-11 attacks, but rather to 

train and equip Niger’s security forces. The legal basis for the force that the U.S. 

forces did use was not the 2001 AUMF but rather the authority given to them by 

the Secretary of Defense and their commanders to defend themselves. As Secretary 

Mattis indicated, it is possible that the mission of U.S. forces in Niger could change 

and that the U.S. military could begin direct counterterrorism operations against 

FOREI-42327 with DISTILLER

21 

terrorist groups in Niger. If the President determines that persons or groups in 

Niger are associated with Al Qaida or ISIS, then the U.S. military would have authority under the 2001 AUMF to use force against them. 

Although the U.S. military personnel in Niger have not been operating under the 

authority of the 2001 AUMF, the Obama and Trump administrations have still notified Congress in ten reports under the War Powers Resolution about the deployment 

of the U.S. military in Niger, presumably because the forces are ‘‘equipped for combat’’ even if they have not been (until last month) engaged in hostilities. President 

Obama first notified Congress in February 2013 that he had deployed 100 U.S. military personnel to support U.S. counterterrorism objectives. In eight additional war 

powers reports, President Obama reported that the number of U.S. military personnel in Niger had increased to 575 by December 2016. In June 2017, President 

Trump reported that the number of U.S. military personnel in Niger was 645. 

The State and Defense Departments also provide reports to Congress on train and 

equip programs. 

Conclusion 

In conclusion, I applaud this committee’s renewed interest in Presidential and 

congressional war powers. Although the President has broad authority under the 

Constitution to order the use of military force, Congress also has a vital role to play. 

The CHAIRMAN. Thank you, all three, for that outstanding testimony. 

And with that, I will turn to Senator Cardin. 

Senator CARDIN. I agree with the chairman. I thank all three of 

you for your testimony. 

The Framers of our Constitution developed this check and balance system in the United States in order to protect against abuse 

of power. The President has a term, unlike the parliamentary systems, which the prime minister would not have a term. He is protected. But we have an independent Congress. That is unique, certainly different than parliamentary systems. 

Mr. Hadley, I want to thank you in the words of Hamilton for 

letting us know what happened in the room when President Bush 

made his decisions on the use of force. It was very helpful to hear 

that. And I think your analysis on how the President determined 

the use of force was extremely helpful. 

But I think we now need to realize that we have a President who 

has a reckless self-confidence of his own instincts and makes decisions without relying upon his advisors, as we have seen over and 

over again, and whether we have adequate protections by the congressional independence in our responsibilities to protect against 

that use of power inappropriately and allowing our men and 

women in harm’s way. So I think that is the challenge. 

And I think there are three areas that we have talked about, and 

I want to concentrate on one in my round of questioning. One was 

the AUMF, which we all agree is outdated. It has been abused not 

just by this administration but by previous administrations. It is 

authority of convenience. It is difficult to get an authorization 

through Congress. So they just use it, and it is inappropriate. And 

I thank Senator Kaine and Senator Flake for their leadership on 

this, and I hope we can come to grips on that issue. It is our responsibility. 

The second was North Korea. And, Mr. Bellinger, I thought you 

gave a very good explanation of that. So if the President were to 

determine he was going to use a first strike, it seems to me it 

would be contrary to our responsibilities under the United Nations 

and our obligations there. 

FOREI-42327 with DISTILLER

22 

But I hear what you are saying, and as I said in my opening 

statement, we have to rely on the professionalism of those who 

carry out the presidential orders. But it does seem to me that the 

use of force here would be an abuse of executive power absent an 

imminent threat that there was a missile pointed at us ready to 

be launched. So obviously we put that aside. 

But I want to get to the third point, which really has me concerned about mission creep that I talked about in my opening 

statement. Secretary Mattis said that under the train and equip 

authority under Title 10, that he believes he has the authority to 

send American troops out on combat missions with the troops from 

the host country. That seems to me to be—we are in combat. That 

seems to me that without specific authorization for combat, we 

have seen the ability to do this and creep into a much more deep 

military involvement in a country. 

What can we do or what should Congress be doing here in order 

to oversight our responsibilities on the use of force where we now 

see we have American troops in so many countries around the 

world under the mission of train and equip when they are actually 

participating in combat missions? Any suggestions? 

Mr. HADLEY. You know, listening to you, it occurred to me where 

there might be some misunderstanding on that. You know, it occurred to me, listening to your opening statement, there is one 

view of train and equip, which is that U.S. forces would go to training camps where there are young recruits of Iraqi or others’ soldiers, far away from the battlefield, training them in the various 

arts and methodologies of war. That is a form of military training, 

and I am sure train and equip would cover that. 

What is really happening, though, is our military thinks that in 

some sense the best way to train and equip a unit is to go with 

them in combat and help them succeed in combat. And I think our 

military—and you can have them before you—would view that as 

part of the train and equip mission, indeed probably some of the 

best training and equipping that we can do. And as you rightly say, 

that begins to blend into our men and women assisting others in 

combat. 

And I think basically the Congress and the administration need 

to get a better and clearer understanding of what train and equip 

means and where does that begin to—— 

Senator CARDIN. I do not disagree with your assessment. How 

does Congress get a better grip on this? Because as we saw under 

the AUMF, we give a two-line authorization and it is used for the 

next decade for different purposes. We have authorization for training and equipping. How does Congress get a better control over the 

use of that authority? 

Mr. HADLEY. I would say two things, and Christine may have a 

view on that. 

One, a better understanding, and that comes through hearings 

with military officials describing the program to you, and secondly, 

the authorization is in statute, Title 10, which you all wrote. And 

it is within your authority to revise that. 

Senator CARDIN. So we say train and equip, but you cannot go 

out on missions, or you say going out on missions is important. I 

accept that. But we do not want it to be creeped into a combat misFOREI-42327 with DISTILLER

23 

sion. How do you prevent something like the presidential interpretation of the AUMF that they are using today from any authorization we do? How can Congress effectively carry out its responsibility on the use of force without hamstringing the military from 

doing their mission? 

Ms. WORMUTH. Senator Cardin, if I could maybe try to add something. Certainly when I was Under Secretary at the Defense Department, when we were doing these kinds of train and equip and 

capacity building missions in various countries in Africa, for example, the rule was they were not allowed to accompany local forces, 

partner forces if there was any kind of likely possibility that they 

would come into contact with adversarial forces because they were 

not supposed to be there in combat. They were supposed to be 

doing training. So there was an intelligence assessment that would 

be made and AFRICOM would have a major role in giving that assessment. And if the judgment was that by going out and doing the 

accompany mission, there was some likelihood that our forces 

would come into enemy contact, AFRICOM was not authorized to 

go and proceed and do that kind of mission. 

So my sense is that through your oversight function, maybe the 

thing to do is to try drill down to really understand how the combatant commands are making the judgment about what is the likelihood of making enemy contact so that you can form your own 

opinions about whether you should have confidence in those intelligence assessments. 

And it is difficult. Certainly there were times during my tenure 

where we assessed that the likelihood of enemy contact was low 

and we were unpleasantly surprised. But I think there was a 

threshold and there was a set of understandings, and we even in 

the Office of the Secretary of Defense had a healthy dialogue with 

the combatant commands to try to really scrutinize their assessments in that regard. 

Senator CARDIN. Thank you. 

The CHAIRMAN. Before turning to Senator Flake, I wanted to ask 

John a question. Part of what prompted this has been just an understanding of what could or could not happen in North Korea. You 

know, I think everyone understands that we have a serious situation that could be developing there. 

As I listened to your explanation of what a commander-in-chief 

can do to protect our country, it seems to me that it would be an 

unlikely scenario where a President would come to us and say, hey, 

look, we are getting ready to, quote, invade North Korea and we 

want to talk with you about an authorization for the use of force. 

I do not think I see that happening. I hope nothing ever happens, 

and I hope diplomatically we are able to resolve this. 

But it seemed, as you laid out the criteria, that a President in 

the type of scenario that likely would develop around a case where 

we are worried about their getting into a position where they are 

close to being able to deliver something that we feel is a threat or 

is destabilizing the region and therefore hurting our allies, it really 

does seem to me that that type of scenario that is developing based 

on all the criteria you laid out—which is the criteria—that while 

they might make a couple of calls to folks to let them know in 2 

hours something is getting ready to happen, in all likelihood acFOREI-42327 with DISTILLER

24 

tions would be taken mostly unilaterally without Congress. But in 

that case, obviously it could spread into a much larger conflict with 

many, many countries involved that in some cases are at least regional super powers if not greater. 

Now, did I hear you wrong when you were laying out the criteria 

and the likely scenario that could develop should the North Korea 

situation get out of hand? 

Mr. BELLINGER. That to me, Mr. Chairman, is a legal matter. 

So let me say two things. One, an authorization does not have 

to be immediately before an attack. It could be a long time before. 

Recall that the authorization that President Bush sought for Iraq 

came 6 or 8 months before the actual invasion of Iraq. And Congress passed that authorization not because they expected the 

President to immediately invade Iraq but because they wanted to 

go on record and give the President the authority so that it was 

clear from two branches of government that there was authority to 

use force against Iraq. I think at the time I was not here on your 

side. But Congress probably hoped that the President would not 

use force, but they gave him that authority so that he had it. 

One could do that in North Korea with certain limitations. So we 

are not talking about an authority that is days before an actual attack. The Congress could give the President the authority. Or afterwards, if the President feels a need to act rapidly, that is what the 

War Powers Resolution says is that within 60 days that the President should seek and Congress could pass an authorization. So it 

could come after the fact. 

So I take your point as a matter of political practicality that if 

the President within a couple of weeks thinks that he is going to 

need to use force against North Korea and does not want to signal 

to them that he is going to do it by going to Congress and seeking 

an authorization, that would be quite awkward. Hopefully, behind 

the scenes there would be the policy consultations that would go 

on. 

The CHAIRMAN. Did you want to say something, Steve? 

Mr. HADLEY. I agree with what John said. And I would think 

that—and I tried to suggest in my testimony—that use of military 

force in the North Korea setting, given the geopolitics and given 

the stakes, is the kind of thing that I cannot imagine a President 

would want to do without congressional authorization. You know, 

it bumps up very much to what John talked about. It is almost a 

de facto declaration of war, and that is, of course, where congressional prerogatives are strongest. 

So the question is how to do that. And again, John is right. In 

Iraq, we did it well in advance to give strength to diplomacy to try 

to avoid the use of force. It seems to me that would probably be 

the scenario you would want to follow here. 

The CHAIRMAN. I am going to reserve the rest of my time, the 

20 seconds, and turn it over to Senator Flake who I think is going 

to chair while I introduce somebody in Judiciary. And I will be 

right back. 

Senator FLAKE. I will chair, but since I just got here, if we can 

turn it over to Senator Kaine and then I will go after that. 

The CHAIRMAN. Very good. 

Senator Kaine? 

FOREI-42327 with DISTILLER

25 

Senator KAINE. Menendez was ahead of me. So I do not want to 

jump ahead. 

The CHAIRMAN. A very courteous committee today. Thank you 

all. 

Senator MENENDEZ. Thank you. 

And thank you all for your past service as well as your constant 

willingness to come before the committee and share your insights. 

I strongly believe that Congress has to take a much more active 

role in asserting our constitutionally mandated authority of declaring war and providing the authorizations for our military to engage 

in sustained combat operations to protect the American people. I 

think in my 25 years in Congress, there is no more significant vote 

that can ever be taken than an authorization for the use of force 

because it is about life and death of the sons and daughters of 

America that we send in harm’s way. So I think it is the singular 

most important thing we do. 

And I certainly believe we live in a significantly different world 

than when our existing authorities that were passed in 2001 and 

2002. And so that is why I believe this effort to try to come to an 

AUMF is certainly incredibly important and incredibly worthy endeavor. Now, we may have some differences about exactly what 

does that look like because there are very serious issues when you 

are going to make such an authorization that you are doing it in 

a way that if you are going to commit America’s sons and daughters, that you are going to commit them with a clear objective, with 

a clear strategy, with an end goal, and because it is in the national 

interests and security of the United States. So there are a lot of 

factors there. 

But, Mr. Hadley, I noted in your opening statement where you 

said many of our Nation’s top diplomats have been quick to say 

that the threat or judicious use of military power is often an essential element of a successful diplomatic initiative. And I would like 

to pursue that idea as an element of what we are thinking about 

here. 

You mentioned President Obama’s decision in 2013 to seek congressional approval to respond to Assad’s use of chemical weapons. 

I was the chairman of the committee at the time. I believe the 

President was right to seek an approval. And while I am disappointed that our body as a whole did not ultimately act, that authorization, which the President took to the G20 summit at that 

time in Russia, gave him a credible threat of the potential use of 

force to convince Putin that he needed to have Assad give up his 

chemical weapons. And ultimately, a very important goal, getting 

Assad to give up at least the chemical weapons that we knew of 

at the time, was achieved without firing a single shot. And that is 

an example in my mind of the credible use of force that can promote a diplomat effort. 

Can you discuss a little bit more how a reliable threat of military 

action can most effectively be used to bolster a diplomatic effort? 

Mr. HADLEY. The example that comes to my mind was when Saddam Hussein kicked out—I think I have the facts on this right— 

the inspectors under the Clinton administration and President 

Clinton actually used military force against Iraq and subsequently 

those inspectors came back in and it gave—revived basically the 

FOREI-42327 with DISTILLER

26 

diplomatic process to try to solve that problem. I think that is a 

good example. I think the one you gave is also a good example 

where you have an integrated strategy that has diplomatic, economic, and some military actions, either threats or actual use of 

limited military action, to give credibility to the American commitment to find a solution. 

Senator MENENDEZ. Let me ask you. I think both of you and Ms. 

Wormuth in your statements talk about understanding what the 

end result is that we want and stepping backwards and understanding the military actions that we might authorize. And I think 

very often we are called upon looking at a set of circumstances in 

which we are told this is the threat and we might seek an authorization for the use of meeting that threat. But that totality of the 

picture is not there. 

Now, some have suggested that when we think about that totality, it is nation state building, and that became a famous phrase 

years ago that was a reason not to be engaged. But is it not true 

that at the end of the day if we are going to send our sons and 

daughters in harm’s way, we want to make sure that whatever the 

threat is that we ultimately eliminate, that we have eliminated it 

not for the moment but for the long term? Can you speak to that? 

As we think about what an authorization should be and what evidence or information should be presented to us to give any particular authorization, can you speak to that end game element? 

Mr. HADLEY. Yes. What we have learned is exactly that, that in 

order to consolidate the military victory, it is not nation building. 

We are not building the nation of Iraq. The Iraqi people need to 

do that. What we have learned is that we can and it is in our interest to help them the build the institutions of good governance, economic progress, and security so that in the wake of military activity, local authorities are able to meet the needs of their people and 

provide a sustainable peace and not a situation in which the terrorists will be invited back in. That is the sustainable end state. 

And what John Allen was saying is you need to start out with 

a plan of how you are going to get to that end state, which will involve military, diplomatic, economic, and developmental objectives. 

You need an integrated plan for that and then walk backwards and 

plan your military operation. Your military operation has to contribute and move you towards that objective. 

We do not do our planning for these operations that way. It is 

a whole different way of doing it, and I think one of the things Congress can do is when you are asked for the authorization of military force say, fine, what is the phase 4 plan. What is the strategy 

for achieving the phase 4 plan, and how does this military operation fit into that? And once you are satisfied on that, then of 

course, the authorization would follow. That will force the executive 

branch to actually do exactly what John Allen said, start with 

phase 4 and work backwards. 

Senator MENENDEZ. I appreciate it. 

Senator Flake [presiding]: Senator Kaine? 

Senator KAINE. Thank you, Mr. Chair, and thank you to the 

members. These issues are so important to me as a member of this 

committee, the Armed Services Committee, and the father of a 

United States marine. And I want to thank the chair and thank 

FOREI-42327 with DISTILLER

27 

my colleagues, Senator Flake especially, for the work that we are 

trying to do to redraft the 2001 authorization. There is work underway now to do that. I think that is important. Many of you have 

testified about this before, so I do not want to ask you about this 

today. 

What I want to ask about is the scope of a President’s Article II 

powers because regardless of what Congress might decide to draft, 

if a President says under Article II, I can do anything, that President can make the congressional war powers essentially illusory. 

And I am very concerned about this administration in that regard. 

After the missile strikes against the Shayrat military base in 

April, Congressman Adam Schiff and I wrote a letter to the President asking for the legal justification for those strikes. I would like 

to introduce the letter as an exhibit. We have received no answer. 

The letter was dated April 24th. 

Senator FLAKE. Without objection. 

[The information referred to above is located at the end of this 

hearing transcript.] 

Senator KAINE. We had a hearing in October, and we had Secretary Tillerson before us. And I asked him the question of legal 

justification for the military strike in April in Syria, and he took 

it for the record and submitted a record answer that I am going 

to ask my staff to give you copies of. I would like to introduce that 

for the record as well. 

Senator FLAKE. Without objection. 

[The information referred to above follows:] 

[EXTRACTED FROM—RESPONSES TO ADDITIONAL QUESTIONS FOR THE RECORD SUBMITTED TO SECRETARY TILLERSON BY SENATOR KAINE—HEARING OF OCTOBER 30, 

2017.] 

Question on Syria strikes 

Question 5. In April, Representative Schiff and I sent a letter to the President 

asking for the Administration’s legal justification for the April 6th strike against the 

Shayrat military airbase in Syria (attached). I asked General Dunford the same 

question and he stated he would get back to me. To date, I still have not received 

a response. Can you please provide me with the legal justification under domestic 

and international law for these airstrikes? 

Answer. The April 6 U.S. missile strike on Shayrat airfield in Syria was not based 

on the authority of the statutory authorizations for use of military force that we 

have been discussing at this hearing. The President authorized that strike pursuant 

to his power under Article II of the Constitution as Commander in Chief and Chief 

Executive to use this sort of military force overseas to defend important U.S. national interests. The U.S. military action was directed against Syrian military targets directly connected to the April 4 chemical weapons attack in Idlib and was justified and legitimate as a measure to deter and prevent Syria’s illegal and unacceptable use of chemical weapons. 

Senator KAINE. If you would each look at this because this suggests to me that this White House is taking a position about Article 

II power that would completely wipe out the Congress’s power 

under Article I. We asked about the military justification. ‘‘The 

April 6th U.S. military strike on Shayrat airfield in Syria was not 

based on the authority of the statutory authorizations for use of 

military force we have been discussing in the hearing, thus not 

2001, 2002. The President authorized that strike pursuant to his 

power under Article II of the Constitution as commander-in-chief 

FOREI-42327 with DISTILLER

28 

and chief executive to use this sort of military force, missile strikes, 

overseas to defend important U.S. national interests.’’ 

Can a President just say, ‘‘I am defending important U.S. national interests’’ and therefore wipe out any obligation to have a 

congressional declaration with respect to military action? 

Mr. BELLINGER. I take that as a legal question. And the answer, 

which will make you unhappy, is yes. The President has broad 

power. 

Senator KAINE. Is it unlimited? 

Mr. BELLINGER. It is not unlimited. It is not unlimited. 

Senator KAINE. Because if it is unlimited, would you not agree 

with me it would wipe out war powers that Congress was granted 

specifically in Article I. 

Mr. BELLINGER. That is true. The answer that the administration 

gives here I think is basically just the textbook answer that the 

President has broad authority to order the use of force to advance 

national interests whether it is a peacekeeping mission, whether it 

was Libya, whether it is these limited strikes in Syria. And that 

is both the view of Presidents in Democratic and Republican administrations, and Congress has largely acquiesced in that. 

Senator KAINE. Let me challenge you on that in the Constitution. 

Mr. BELLINGER. Please. 

Senator KAINE. Madison to Jefferson, in writing about what the 

division of power between Congress and the executive, basically 

laid it out and said we have to let the President have some power 

because Congress would be in recess and would be in Vermont. But 

when Jefferson was President and was grappling with the Barbary 

Coast Pirates, he said, ‘‘I have the ability to defend against attacks 

on ships, but if I want to go defeat the navy, I need to get congressional approval.’’ 

If you allow a President just to say—and I am worried about this 

President. I went after the former President on the same thing. 

But if you allow a President to say, ‘‘I am defending important U.S. 

national interests,’’ and that is a talismanic phrase that would 

allow the executive to wage war without Congress under any circumstance, you have essentially eliminated the congressional 

power under Article I. 

And if I could unpack it further, in this particular instance, the 

White House asserted no imminent threat to the United States, no 

imminent threat to any U.S. person or personnel. They claimed no 

legal justification under either the 2001 or 2002 rationale. They asserted no international legal justification. We had not been invited 

by Syria to invade their sovereignty. It did not meet the international definition, Mr. Bellinger, that you cited earlier. 

And so the assertion that we need no international justification, 

all we have to do is say we are defending a national interest, does 

that not worry you that that is just so plastic that a President 

would feel unconstrained and feel the ability to wage war completely without the authority of Congress? How could you square 

that with having Article I be meaningful? 

Mr. Hadley wanted to say something, and then Ms. Wormuth 

may as well. Then I will come back to Mr. Bellinger. 

Mr. BELLINGER. So that is a lot of different questions, but let me 

try to quickly address them. 

FOREI-42327 with DISTILLER

29 

On international law, I think there is not a clear basis under the 

UN Charter, but I would still like to have seen the administration 

explain why they felt it was justified under international law, if not 

legal. And I am unhappy that they have just not answered the 

question because it is important to explain why we are doing 

things or at least as consistent with international law as possible. 

Senator KAINE. You will notice that the question was asked. 

Mr. BELLINGER. I did see that, and I wish that they had answered it. As a former legal advisor for the State Department, I 

like to see us saying that we are acting consistent with international law as best we can. 

On domestic law, there is certainly an upper limit, and I said 

that in my testimony. I think that is certainly what you are saying. 

This example in Syria, which was limited—it was just a couple of 

hours—is consistent with what Presidents of Republican and 

Democratic Parties have done for decades and decades. And if you 

think back with the—— 

Senator KAINE. Is consistency the same as legality? 

Mr. BELLINGER. Well, Congress has acquiesced in that over time. 

Senator KAINE. Is that the same as legality? 

Mr. BELLINGER. To a certain extent, yes, Senator, because war 

powers are shared between the executive and Congress. And practice over time between what the Congress is willing to accept and 

what the executive branch asserts becomes law. So if you think 

about the invasions of Panama or Nicaragua or Grenada or President Obama in Libya for long periods of time—— 

Senator KAINE. For which he was censured by the House of Representatives—— 

Mr. BELLINGER. I realize that. 

Senator KAINE [continuing]. In 2011. 

Mr. BELLINGER. But Presidents have to assert important national 

interests, whether it is rescuing Americans, addressing a humanitarian crisis, addressing regional stability, a variety of different 

things. 

Senator KAINE. Is a humanitarian crisis not fundamentally different than war? When we are putting the military to do typhoon 

relief in the Pacific, we do not have to have a debate about that 

under war powers. But firing missiles at a foreign country without 

an answer about what the legal justification seems to be fundamentally different. 

Mr. BELLINGER. Well, it depends—in Syria, one day for an hour 

was not a lengthy period of time. I think that is well within the 

President’s war powers. 

I think what you are concerned about, though, which all of us addressed in our testimony—I as a legal matter and my colleagues 

as a policy matter—if we are talking about a prolonged or substantial use of force against a country, particularly one that may provoke, unlike Libya which was prolonged and substantial, but particularly one that will provoke likely a counter-attack on the 

United States, its allies, its civilians, potentially resulting in tens 

of thousands or hundreds of thousands of deaths, that is probably 

going to bump up against Congress’ power to declare war. 

So to end this, there clearly is an upper limit. The President has 

a lot of authority to act without constitutional authorization. There 

FOREI-42327 with DISTILLER

30 

is a whole history of that. But what you are saying is, is it unlimited and did this answer say that it was unlimited? I think, no, it 

is not unlimited. And I do not think that at least this answer said 

that it was unlimited. 

Senator KAINE. I have gone over, and I appreciate my colleagues’ 

patience. And I will follow up in writing for the other two witnesses. 

Thanks. 

The Chairman [presiding]: Absolutely. 

Senator Young? 

Senator YOUNG. Well, I thank the chairman for holding this 

hearing and the ranking member for his leadership in it as well. 

Thank you to our panelists. 

There is no more consequential issue than the authorization of 

the use of military force and doing all we can as Members of Congress to get it right as we look to authorize these sorts of actions. 

We are a decade and a half into fighting what has been branded 

the war on terror, and this is a hydra-headed sort of threat. It 

could be a quite long war. And all of us want to get this right because of the nature of this—because of the gravity of the decisions 

here. And we not only want to get it right. Some of us may want 

to get it exactly right in terms of how our authorization of the use 

of military force is structured. 

And so I would like to approach this slightly differently and talk 

about—we are supposed to deliberate and then act. This is a deliberative body in Congress. But what happens when, I think quite 

appropriately and necessarily, with the chairman’s leadership, we 

have decided to move forward, have this serious conversation 

through a series of hearings and so forth, we robustly deliberate in 

a public fashion on the record, and what if some of us cling to these 

perfect AUMF models in our head and are unwilling to make principled compromises? What if we fail to act after we deliberate on 

the question of whether or not to declare a war or authorize the 

use of military force? Do we send messages to our troops in harm’s 

way, to our adversaries that we do not want to send? But perhaps 

more importantly or as importantly, do we establish a legal precedent where we have considered acting and not acted, therefore future administrations may say there are broader Article II authorities than have ever been asserted before, citing the Congressional 

Record, these deliberations, and others? 

So I would like each of you maybe to address this legal component, this legal risk that each of us might be establishing by deliberating now that we have crossed what I regard as kind of a 

threshold but may be failing to act. Mr. Hadley? 

Mr. HADLEY. I think we would all say the better course is for you 

to agree on a new, revised AUMF because it will show the American people that the Congress is behind this effort in the name of 

the American people. 

Secondly, I think there is a risk that if you do not reach an 

agreement, it looks like Congress is abdicating to the President and 

to the executive branch these authorities, which will strengthen the 

arguments that Senator Kaine and John Bellinger were talking 

about. 

FOREI-42327 with DISTILLER

31 

But you are not out of business. I mean, we have been talking 

about prior authorization, but there is the after-the-fact. And I 

would remind the committee that after President Bush announced 

the surge in Iraq, there were legislative efforts that were adopted 

by the House of Representatives that defunded it and placed operational limits that would have made the surge impossible. And this 

was Congress asserting its oversight and asserting its authority 

over a military operation. So we can have this discussion about 

prior authorization—is it required from Congress or not? But if the 

President goes ahead and uses these authorities that have been established and Congress disagrees, you have lots of tools to get at 

the President post fact. 

Ms. WORMUTH. I would just add I completely agree with Mr. 

Hadley that I think the reason that I have favored developing a 

new AUMF is that I think it will send a very strong signal to our 

military but also to the world at large that Congress and, by extension, the American public are behind what we are trying to do. And 

I think that is very important. I sat on this side of the table as an 

administration witness a number of times and asserted that whatever we were doing that was being challenged—— 

Senator YOUNG. I am grateful. My time is winding down here. 

Ms. WORMUTH. Apologies. 

Senator YOUNG. No, no. That is all right. 

I understand I think all of us could articulate here why an 

AUMF is desirable or might be desirable, why we reaffirm our prerogatives here. But perhaps someone can discuss this, as Mr. Hadley has. Do we establish some sort of precedent and thereby broaden perceived Article II authorities by having this public conversation and by failing to act? 

Mr. BELLINGER. The answer is yes, Senator. There are two legal 

problems here. One is the issue that you and Senator Kaine are 

getting at. And I can tell you from outside of Washington, there is 

much talk about Congress’ abdicating its war powers and, as a result, accreting to the President more war powers. If Congress does 

not act, it leaves successive Presidents—it is not Republicans or 

Democrats. Senator Obama may have actually stretched things farther than President Bush did in terms of the conflict in Libya and 

the conflict with ISIS, which were not authorized. When Congress 

does not act, Presidents will. 

And then there are narrow legal problems as well that we discussed last time on detention and other issues. 

Senator YOUNG. So we are all free agents in the Senate. These 

are decisions individually each of us has to make. I will just say 

from this Senator’s point of view we need to be prepared to make 

principled compromises even on an issue as consequential, even on 

an issue where we seek such perfection as authorizing the use of 

military force. I have reached out to several offices, Republican and 

Democrat, trying to synthesize different approaches, and there are 

others who want this as well on the committee. I think we can get 

there from this Senator’s vantage point. 

Thanks, Chairman. I yield back. 

The CHAIRMAN. Just before turning to Senator Merkley, look, I 

think everyone knows I would like for us to have a new AUMF. I 

FOREI-42327 with DISTILLER

32 

do believe that there is legal grounding for the current President, 

and the President before him, to do what they are doing. 

Just for what it is worth in listening to the debate—it sounds 

like what we are saying is that we need to write a new authorization, which I agree with—I mean, we are working right now with 

the committee to make that happen—for Congress to weigh in on 

what the administration is already doing to make us relevant. It 

is kind of an odd thing. So, the activity is underway, and for us 

to be relevant, then we need to pass something. I am sorry. It is 

just a little bit of a weird thing. 

I also say that the difficulty here, as we all know, is what we are 

really doing is we are authorizing something that is not the standard war. I mean, we are basically saying we are allowing the President of the United States to conduct activities to police around the 

world in countries all over the world activities relative to ISIS. And 

we know it is going to go on for another 20 or 30 years. I am slightly exaggerating to make a point, but it is going to go on for a long, 

long time. We have no idea where it is going. We have no idea 

which entities are going to mutate out of this. And so it makes it 

a little more difficult than saying we are declaring war as we did 

in World War II or some other place. 

So again, I am not trying to get us a bye here. I am just saying 

it is a challenge to try to craft something that takes into account 

that this is activity that is going to take place in places we have 

not even thought of today. 

Senator CARDIN. Mr. Chairman, could I just comment just very 

briefly on it because this is helpful for us because we are trying to 

get to an AUMF. 

It seems to me that the overwhelming majority of Members of 

Congress want to support the use of our military to fight ISIS. We 

think that is an appropriate use. What we do not want to see happen again is what happened in 2001 when we passed the authorization that is misused by the executive branch. 

And I just think this comment here about Article II powers that 

from my position, I do not understand why we do not pass an authorization that is current to what they need today. If the President runs into a circumstance, he has the Article II powers that 

have been adequately explained. If it becomes prolonged, he should 

seek the change from Congress. 

So I would just point out I do not think we have to be too concerned about not giving the President enough authority. Whatever 

we do, he will have enough authority. 

The CHAIRMAN. And I think we all know we are circulating some 

principles now, and I think we have hit what I hope is a sweet spot 

as it relates to what a new authorization ought to be. But I am just 

saying the complexity of it is that we are talking about one that 

is not in a specific country with necessarily a specific group that 

we know is going to mutate just as the 2001–2002 authorizations 

have. So again, not giving us a pass. It is just a little different kind 

of thing. It is really an ongoing policing activity with our military 

and many other instruments that we have within our government 

potentially in places that we do not even know of today, which 

makes it somewhat different. 

So, Senator Merkley. 

FOREI-42327 with DISTILLER

33 

Senator MERKLEY. Thank you, Mr. Chairman, and thank you to 

all three of you. 

And, Mr. Hadley, I was intrigued by your noting that if we think 

that the chapter 10 powers are being overused, we could constrain 

them legislatively. But if you read the Title 10 powers, they provide 

no foundation for accompanying forces, and it is in direct contradiction to the War Powers Act, which says that the introduction of 

armed forces includes, ‘‘the assignment of a member of such armed 

forces to command, coordinate, participate in the movement or accompany the regular or irregular military forces of any foreign 

country or government when such military forces are engaged or 

there exists a threat that such forces will be engaged in hostilities.’’ 

So you are asking us to come back and write what has already 

been written, is sitting in the law. And so I find that rather absurd. 

The fact is it just gets routinely ignored, and then the question 

becomes where are the teeth? If the law is already written quite 

clearly by determination, has been signed in the oval office and 

lays out this boundary, but it is absolutely ignored, where are the 

teeth? And you have responded to that just a moment ago by saying, well, Congress can come back and cut off funds. Well, Congress 

is very reluctant to cut off funds in such a precise and detailed 

micromanagement fashion. 

The courts really provide no teeth for this either in general because the Supreme Court—I am asking this more as a question, 

but basically defers to the executive on issues of national security. 

So am I right to just basically say we laid it out quite clearly? 

The administration violates it with impunity, and we basically 

have no teeth except what you are saying to come back and cut off 

funds? 

Mr. HADLEY. I think that is a little harsh. This is an area where 

Congress and the President are condemned to struggle, and I think 

the only real approach is for the Congress and the President to sit 

down and develop some rules of the road. Where is that line that 

Congress really wants to be in on the ground floor and be asked 

for authorization and where is that line where the Congress actually is willing to let the President act and then exercise oversight 

and tell him what is wrong? 

And it shows the problems of how these things—if you take 

Christine’s rule, which is a very good one, and cabin Article 10, so 

train and equip means you cannot go out with someone to a military operation against the bad guys, and the military wants to do 

it, then they will invoke the 2001 or 2002 authorization to use military force to do it, which authorizes a lot of actions below a level 

that requires or would suggest the President needs to come back 

to Congress. 

Senator MERKLEY. Okay. 

Mr. HADLEY. It is hard to do by drawing lines, and I think it has 

got to be by an ongoing consultation process, which is why I think 

the consultation approach is better than the Wars Power Act. 

Senator MERKLEY. Let me just point out that this administration 

is absolutely allergic to consultation or transparency when it comes 

to these issues. 

But as you noted, that brings us to the question of the authorization to use military force. And I am fascinated by listening to exFOREI-42327 with DISTILLER

34 

pert after expert cite the associated forces clause of the AUMF, 

which does not exist, which was completely invented as a justification of moving from what is clearly stated in the AUMF to giving 

broad ability way beyond what was in the AUMF, which is part of 

what has given rise to doing a new AUMF. But if we can invent 

language to insert into an existing AUMF, why can it not be inserted into the next AUMF? 

I am really concerned that the boundary of the clarity of law is 

so routinely violated now when it comes to these issues that we 

have put ourselves in an extremely difficult spot in terms of clearly 

articulating our responsibilities under the Constitution, if you will. 

And, Mr. Bellinger, you noted substantial and prolonged. I wanted to turn to North Korea. I was part of a congressional delegation 

that went to South Korea and China and Japan to hold conversations throughout. I am not convinced the President has an understanding of the circumstances or even the ability of the conventional deterrence of North Korea to destroy Seoul, which has a 

broader population of over 20 million people within the boundaries, 

just a short distance—reach of artillery. But any attack on North 

Korea that is likely to produce an artillery response is certainly 

substantial in my mind. 

And in that regard, do you have a sense that the President would 

need to come to Congress for authorization to engage in such an 

act? 

Mr. BELLINGER. Again, this gets at the issue of before or after. 

Certainly as a policy matter—and you have heard this from both 

my colleagues—if the President is considering any use of force 

against North Korea, unless it is just instantly in response to a 

shoot-down of an aircraft, there ought to be consultation. 

Neither the War Powers Act nor the Declare War Clause say 

that Congress has to authorize before a use of force. There would 

be certainly reasons why, but it could be afterwards. And so there 

should be consultation beforehand. 

I think what I am saying is although it is not crystal clear—and 

as you know, we can never find two lawyers who are going to 

agree. If the President were going to actually take a use of force 

against North Korea that is beyond the shoot-down of a single aircraft or something like that but that is going to result in the possible devastation that you and Senator Kaine have suggested, then 

it seems reasonably clear that under Article I that the Declare War 

Clause requires Congress to authorize that not necessarily before 

the fact, although there would be reasons to do it before the fact, 

but if the President were continuing a war afterwards and Congress did not authorize it, I think there is a good argument that 

the President was not acting consistent with either his powers or 

Congress’ powers. 

Senator MERKLEY. When you think of the substantial and prolonged, are you using it as it has to be substantial and prolonged 

or either substantial or prolonged? 

Mr. BELLINGER. I would say it would be ‘‘or.’’ There are certainly 

past cases where there has been a prolonged presence that really 

did not raise serious Declare War issues and they were substantial 

but were quite short. 

FOREI-42327 with DISTILLER

35 

Senator MERKLEY. I appreciate that answer. I share that opinion, 

and I really hope the administration understands that it needs to 

consult before starting such a hostility. 

Thank you all very much. 

The CHAIRMAN. Thank you. 

Senator Isakson? 

Senator ISAKSON. I apologize to the panelists that I am late and 

I probably missed what I am getting ready to ask and I apologize 

in advance for asking a dumb question. But I happened to come in 

the middle of the discussion with Senator Merkley, and I want to 

get a couple things clear. 

In the case of the War Powers Act, the President has to come to 

Congress within 90 days of utilizing force for the Congress to authorize any continuation of that same force. Is that correct? 

Mr. BELLINGER. That is correct. 60 days would be required to terminate and would have to ultimately terminate after 90 days. That 

is what the War Powers Resolution says. 

Senator ISAKSON. But the President does have the authority to 

initiate such an action without congressional authorization. 

Mr. BELLINGER. I would say there is not full agreement on that, 

but I would certainly say that is what the War Powers Resolution 

says that you have to notify within 48 hours of doing something, 

but the President has got 60 days or up to 90 days to continue unless he gets authorization. 

Senator ISAKSON. You do not want to tie your military’s hands 

behind their back in a conflict. The last thing in the world you 

want to do is constrict them from being able to do what is appropriate in that case I think. Thank you for that answer. 

And thank you, Mr. Hadley, for all your hard work on behalf of 

the country and previous administrations and what you are doing 

now. 

What you said I think I wholeheartedly agree when you made 

your comment about the commitment of resources and forces. It 

should be done always in consultation with the Congress, but it 

ought to be consultation not some mandatory hoop to jump over. 

Is that correct? 

Mr. HADLEY. Yes, sir. That would be my view. 

Senator ISAKSON. And hopefully, that consultation would always 

be going on so you got prepared for what might seem to be to the 

public instantaneous, but it was after a long period of trying to 

avoid what happened. 

Just for reference, in 1983—and I think I am right on this date. 

I could be off by a year or so—KAL–007, Korean Air Lines, was 

shot down over the South China Sea or somewhere in that part of 

the world. The Congressman from my district, who had the 7th district of Georgia represented in Congress, Larry McDonald, was 

killed in that particular shoot-down. And there is an example of a 

hostile act that was taken against a United States asset—or actually it was Korean Air Lines, but it was loaded with American citizens—where the President could have based on information he or 

she had or was delivered to them by intelligence sources—could 

have initiated a military act. It subsequently would have had to 

come to Congress to affirm. Is that not correct? 

FOREI-42327 with DISTILLER

36 

Mr. BELLINGER. That is correct. And there have been other situations where a President has taken an action in his constitutional 

powers and then sought ratification later. 

Senator ISAKSON. The only point was that there is a clear reference to a case that took place in the 1980s where an action of 

hostility was taken against American citizens in a commercial airliner and the President could have done that and did not and consulted with the Congress. 

So I think the parameters that we have laid out now for Congress and for the President of the United States are sufficient to 

act expeditiously if attacked but always before the ratification of 

the Congress even if it is retroactive, as in the case of sudden hostilities. 

So I think I just want to go on record as saying I agree with Mr. 

Hadley’s comment exactly that our role is one of consultation, leading up to the final vote which would take place under the War 

Powers Act, but initially there is no need for consultation if it is 

a hostile attack against us right away. I just wanted to get that 

on the record. 

The CHAIRMAN. Thank you very much. Thanks for being here. 

Senator Shaheen? 

Senator SHAHEEN. Thank you, Mr. Chairman. 

I am sorry I missed much of the discussion, but just to follow up 

a little bit on your line of questioning, Senator Isakson, has there 

been a suggestion that we cannot respond to a hostile attack without an authorization for use of military force? Was that what you 

were suggesting, Senator Isakson? 

Senator ISAKSON. No, I was not suggesting that. 

Senator SHAHEEN. Okay. I just wanted to make sure I did not 

misunderstand something. 

Mr. Hadley and Ms. Wormuth, both of you pointed out that it is 

important for us, as we think about how we address potential conflicts, to recognize that we have not only tools of the military but 

tools from our diplomatic efforts and our aid efforts. I just wonder 

if either one of you can talk about whether you think we are effectively now making use of all of those tools as we look at the various 

conflict areas that we are facing. Let us say North Korea first and 

then also—probably North Korea. If you could just address that 

specifically. 

Ms. WORMUTH. I would be happy, Senator Shaheen. 

As I said in my statement, I have concerns that generally the 

table has tilted for a variety of different reasons too much towards 

using the military tool to the detriment of our others. There are 

many reasons for that. Our diplomatic resources are not as well 

resourced as I think they need to be even under the Obama administration and previous administrations, but certainly I would have 

that concern now. And I think given the circumstances in North 

Korea, you very much want to use that diplomatic tool as much as 

you can. We are using the economic tool in the form of sanctions, 

and I think that is very appropriate. But I think we need to do 

more as a country to try to give more resources to the agencies that 

do development and reconstruction, that do diplomacy because 

those are just as important, and in some cases, more important. 

FOREI-42327 with DISTILLER

37 

Part of our challenge I think is generating civilian capacity that 

can be ordered into dangerous places is difficult to do. And I do not 

have all the answers for how to fix that. 

Senator SHAHEEN. Well, Mr. Hadley, as you talk about stage 4, 

where do we want to get in conflict areas, and we think about 

where we currently have military operations right now, Afghanistan, Iraq, Libya, Somalia, I would argue that it is maybe even 

more important in most of those places for us to have the diplomatic and economic assistance tools than to follow on or at the 

same time with our military than in some cases to have the military there because if we are going to resolve the military conflict 

and we do not have anything at the end for stage 4, we are not 

going to achieve our objectives. Would you agree with that? 

Mr. HADLEY. I would, Senator, and I agree with what Christine 

said. You know, we are still not as good about how to mix the security, the developmental, the governance aspects that are required 

to bring stability over the long term to places like Syria and Iraq. 

And the thing I am worried about is that we have heard a lot about 

military operations to clear those areas of ISIS, a lot less of how 

we are going to help those people in Syria and Iraq build institutions that will prevent ISIS from coming back. You know, people 

say, well, that is nation building and we do not do nation building. 

It is really not. It is taking steps to help people build institutions 

that will resist terrorists coming back that might threaten the 

United States. 

Senator SHAHEEN. And in your testimony, Mr. Hadley, you mentioned the need to maintain public support for ongoing military operations. I certainly agree with that 100 percent as a student of the 

Vietnam War growing up and recognizing what happened in this 

country during that time. But does transparency about our military 

deployments and the rules that we are operating under improve or 

impede the cooperation that we have with our allies and partners 

and our efforts? 

Mr. HADLEY. Well, there certainly should be transparency with 

the Congress, and that could be done in a way where it is all public 

and transparent to the public. In some instances, because of those 

considerations, you are going to want to do it in a closed setting 

so that Congress is aware. But Congress should be aware I think. 

There is no reason why Congress should not be aware about the 

size and scale of the deployments. 

I think the problem is if you only talk about the deployments, 

you are not going to generate the kind of public support you are 

talking about. You have got to talk about why are we there, why 

does it threaten Americans’ interests, what is at stake, what is our 

strategy, how we are implementing the strategy, why we think we 

can succeed, and then you put all the facts and figures into context. 

But, you know, we have a tendency to go right to the facts and figures and none of the context, and therefore, Americans do not really know what we are doing and why we are doing it. And that is 

the point President Bush kept—as I talked in my testimony, if you 

are going to engage our military forces, the President needs to be 

explaining the context, the why, the how, and why it matters over 

and over again to the American people to maintain that support 

that is so crucial over the long term because we are going to be at 

FOREI-42327 with DISTILLER

38 

this for a long time. And the American people have got to understand that and why it is important and that we have a strategy 

and that it is working. That is just essential because we are going 

to, unfortunately, be at this for a while. 

Senator SHAHEEN. Thank you. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you very much. 

Senator Coons? 

Senator COONS. Thank you, Chairman Corker, Ranking Member 

Cardin, for holding this important hearing and to this very experienced, seasoned panel for the time you are dedicating with us 

today. 

I could not agree with you more, Mr. Hadley, on the point you 

were just making. We will be at this a very long time. The American people need to understand what our strategy is. We need to 

understand what our strategy is. And they need to understand 

where our troops are fighting and why they are fighting. Both of 

you have made the point in your testimony that public support is 

vital for the success of military missions, diplomatic missions, development missions abroad. 

And I think the October attack that took the lives of four American soldiers in Niger was a reminder, a bracing reminder, to us. 

Many Members of Congress are unaware that we have service 

members deployed in West Africa or supporting counterterrorism 

missions in the Philippines or deployed in the Horn of Africa. So 

our current system of notification is demonstrably under-performing. Can I put it that way? 

How would you suggest we strengthen this dialogue between the 

President and Congress in a way that makes more certain that 

Members of Congress are aware of where and how and when our 

forces are being deployed and, through us, engages the American 

people? And I will suggest my answer, and then see what you think 

of it, which is that although an exercise to craft a bipartisan AUMF 

may or may not change things in the short term in particular jurisdictions on the ground, that exercise is exactly pointed at forcing 

the conversation between the executive and the legislation 

branches, forcing it between the parties here on this committee, 

and then engaging the public in some dispute about whether we 

are or are not overreaching in our missions in the world. 

Do you think I am right about that, or do you think there are 

other ways we can improve transparency and engagement by the 

public? If you would, Ms. Wormuth, Mr. Hadley. And then I have 

a different question for Mr. Bellinger. 

Ms. WORMUTH. I certainly think the effort to try to craft a new 

AUMF, an updated AUMF, is a very important piece of having that 

more transparent dialogue and helping Americans understand 

where we are, why we are there, what we are trying to do, and to 

give the public an opportunity to be engaged in that debate. 

But I do not think it ends there. For example, what happened 

in Niger was actually not covered under AUMF, as you know. That 

was just a capacity building exercise that ran into enemy contact 

when it was not expected. So I think it has to be bigger than that. 

There has to be, I think, a broader effort to talk to Americans on 

a regular basis about what we are doing. And I think you cannot 

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39 

over-communicate. Members of Congress, the President, and the 

United States cannot over-communicate when it comes to these 

kinds of important things that we are doing. 

Senator COONS. Mr. Hadley? 

Mr. HADLEY. I think you are absolutely right. It is one forum for 

conducting that conversation. Hearings are another. I read the 

transcript of the hearing this committee had with Secretary Mattis 

and Secretary Tillerson on use of force and AUMF. I thought it was 

terrific. 

And finally, informal consultations. When I was national security 

advisor, I was up on the Hill a lot during the 2005 and 2006, the 

grim days about the war in Iraq talking informally with Members 

of Congress, some of whom had sons and daughters in that conflict. 

They were some of the most difficult conversations I had. Terribly 

important. 

So I think there are a lot of different forums where this conversation needs to occur. 

Senator COONS. Thank you. 

Mr. Bellinger, you have called for Congress to revise and update 

the War Powers Act. That has already been discussed with a number of members. And there was a reference—I think you made it— 

to a McCain-Kaine bill I think initially introduced several years 

ago. 

What do you think are the elements that should most be updated, and how would those revisions strengthen our oversight? 

Help me understand how that would contribute to this dialogue. 

Mr. BELLINGER. So thanks very much for that question because 

really a lot of this is about the War Powers Resolution and whether 

Congress is requiring compliance with the War Powers Resolution, 

whether the President is actually following it. So I hope you all 

really will have a look at it. 

So two things. One, the recommendation of the National War 

Powers Commission, which was a serious commission chaired by 

Jim Baker and by Warren Christopher, revised the War Powers 

Resolution in a very narrow way, really just to say instead of these 

48-hour reporting requirements and 60-day termination requirements, which Presidents of both parties have largely been ignoring 

or at least stretching, it should just be all about consultation. 

Now, one could argue that maybe that is too narrow, that we are 

taking what was a fairly restrictive bill and just turning it into a 

consultation requirement. But this is, I think, what we have been 

talking about for the last 90 minutes, is there needs to be better 

consultation. And maybe you can put more meat on those bones in 

terms of consultation. 

I will just mention a couple of the particular problems and then 

stop. Because of the types of modern conflicts that we have now, 

it is very difficult for Presidents to report things within 48 hours 

that may be classified. Congress has now started accepting classified reports. The termination requirement is really the biggest 

problem in that if Congress will not authorize a new authority, it 

puts the President in the bind of either stopping something that actually has popular support, like the ISIS war, declaring the War 

Powers Resolution unconstitutional, which the President does not 

really want to do, or taking the third option, which is what all of 

FOREI-42327 with DISTILLER

40 

you have expressed concern about, is to just take the ball and run 

with it and stretch whatever authorization the President has been 

given beyond anything that is recognized. The War Powers Resolution was set up in a way that ought to work but has not. 

Senator COONS. Thank you. 

The CHAIRMAN. Thank you. Are there any additional follow-ups? 

Senator Shaheen? 

Senator SHAHEEN. I am not sure who to direct this to. I do not 

think it has come up. But, Mr. Hadley, you talked about reading 

the transcript of the hearing we had on the AUMF. And one of the 

things that was raised at that hearing was a question about the 

current status of the conflict in Korea. And so maybe this is for 

you, Mr. Bellinger. 

Does the fact that we do not have a peace treaty with North 

Korea change the status of what the President could do in terms 

of going into North Korea without an AUMF or without consulting 

Congress? 

Mr. BELLINGER. I know the argument. I do not think that really 

flies. The argument is that the war, the armed conflict with North 

Korea has never actually ended, that there has been an armistice, 

and that because the North Koreans have broken the armistice 

and, in fact, have publicly said that they are no longer observing 

it, that under traditional principles of armed conflict, if there is 

merely an armistice which is then broken, then we go back into a 

state of armed conflict. So you could get some academic lawyers to 

say—sort of a surprise to everybody—we are actually in a state of 

armed conflict with North Korea right now, which means that we 

could immediately start using force against them without congressional authorization because we are in an armed conflict. That is 

the theoretical argument. I just think 60 years later that I would 

not buy that. 

Senator SHAHEEN. And, Mr. Hadley and Ms. Wormuth, do both 

of you agree with this? 

Ms. WORMUTH. Yes. I am not a lawyer, but that is sensible to 

me. 

Mr. HADLEY. I think the argument is too clever by half, as they 

used to say. 

Senator SHAHEEN. Thank you. 

The CHAIRMAN. Senator Markey? 

Senator MARKEY. Thank you, Mr. Chairman, very much. 

Mr. Hadley, how do you think North Korea would respond to a 

U.S. nuclear first strike? 

Mr. HADLEY. Well, I do not quite see a scenario where the U.S. 

would make a nuclear first strike, but I think the obvious answer 

is it would be—— 

Senator MARKEY. It is a discussion that we have heard out of 

some parts of the White House that we could take preemptive action against the existing nuclear structure in North Korea. What 

do you think Pyongyang would do? Would it lay down its arms, or 

do you think it could escalate? 

Mr. HADLEY. Well, the risk that everybody has talked about, 

which makes the military option so difficult, is what was mentioned by members of this committee this morning, the fact that 

North Korea is able to hold Seoul, a city of almost 20 million peoFOREI-42327 with DISTILLER

41 

ple, hostage with artillery, rockets, mortars, and missiles and cause 

enormous loss of life. And that puts enormous constraints on any 

consideration of use of military force because of the potential for 

North Korea retaliation. 

Senator MARKEY. So given the fact that it would lead to, most 

likely, a massive increase in hostilities between North Korea and 

at least South Korea but the United States, do you think that the 

United States—do you think the White House should be required 

to get specific statutory authorization from Congress before ordering a military attack? 

Mr. HADLEY. We all, I think, have said in our testimony this 

morning that this is the kind of scale of operation that would—in 

our judgment is something the President should go to the Congress 

for. 

But I would just say you can see the situation getting to the 

point where the choices become excruciatingly difficult. If North 

Korea demonstrated an intercontinental range ballistic missile able 

to reach the territory of the United States, if it demonstrated that 

it had miniaturized a nuclear warhead to go on the top of such missile, and if we had intelligence that it was readying on a launch 

pad such a missile, that is going to put enormous pressure on the 

President to make some kind of preemptive action, if he has the 

capacity to do so, in order to protect the citizens of the United 

States. 

This is why what North Korea is doing is so dangerous, is that 

it can evolve into situations that will pose excruciatingly difficult 

choices for the President and for the Congress. 

Senator MARKEY. Exactly. I am glad you said ‘‘and the Congress.’’ So should the Congress be involved in that decision if the 

President wants to launch a preventative nuclear attack on North 

Korea? 

Mr. HADLEY. I think one of the things that comes out of the discussions we have in this hearing today is that the North Korea situation is potentially so grave that Congress and the President 

ought to be having consultations on it now and continually so, as 

the chairman said, there are no surprises as we go through this 

very challenging time that we are facing in terms of managing 

North Korea. 

Senator MARKEY. Right. 

Let me ask you, Ms. Wormuth. Do you think that the Congress 

should have a vote before there is a preventative nuclear war 

which is commenced, understanding that the consequences could be 

that we do not hit all of the nuclear sites? There are clandestine 

sites there and the catastrophe is that they launch the first one 

that they have that we did not get at all of the troops and the 

Americans that are in North Korea and 200,000 Americans are 

dead later on that afternoon. Should the United States Congress 

have voted on that scenario before the President is allowed to 

launch a preventative nuclear strike? 

Ms. WORMUTH. I think, Senator, we had a conversation—I do not 

think you were in the room—a little bit earlier about the fact that 

the President Bush secured the authorization to go potentially go 

into Iraq many months before we actually did the invasion and 

that one of the benefits of that was that it demonstrated very visiFOREI-42327 with DISTILLER

42 

bly to the world, enemies and friends alike, that we were prepared 

to do that and it strengthened our diplomatic hand. So I can see 

a circumstance where something like that would be beneficial. 

And I certainly agree with Mr. Hadley that the military consequences of getting into kind of an engagement with North Korea 

are going to be substantial and I believe prolonged, and I think it 

would be very healthy for Congress to have a say in that because 

the American public is going to have to be prepared to support the 

consequences of that. 

Senator MARKEY. Mr. Bellinger, I know you have already answered the question. 

Mr. BELLINGER. No, and there is a legal component to this. A nuclear strike against North Korea I think would bump up against 

the Declare War Clause. It would obviously end up in a prolonged, 

substantial conflict. So I think that is something that likely would 

require congressional authorization. 

The way I think that would work would be—one would hope— 

there would be the consultation process beforehand on something 

of this sensitivity, presumably be done behind closed doors. And 

this is where, frankly, it would be like Syria, which sounds like apples and oranges, but President Obama came to Congress, consulted. He got the message that there was not going to be an authorization and that if he went forward, that he was going to be 

basically on his own on his Article II powers, and he decided not 

to go forward. The same thing would happen here if President 

Trump came and consulted and Congress said we are not going to 

authorize that either before or afterwards, then the President is on 

notice that he does not have congressional support. And in this 

case, probably unlike Syria, he probably would be violating the 

Congress’ right to declare war. And he would be on notice beforehand and then would have to go on on his own. 

Senator MARKEY. And just to go back in time, it is also very important to know that we had UN inspectors on the ground in Iraq 

for 4 months and they could not find a nuclear program. There was 

no mushroom cloud as the next threat to the United States. And 

Dick Cheney just went on TV and lied that Saddam has reconstituted his nuclear weapons program, and he said that on Meet the 

Press to Tim Russert the day before the war began. So even with 

Congress playing a role, it still left a lot of discretion to the administration to mischaracterize what had been found on the ground by 

the UN inspectors. And we are still paying the price for that, but 

that was just a deliberate set of lies that were told to the American 

people. 

Thank you, Mr. Chairman. 

Senator CARDIN. Mr. Chairman, if I might, I just want to thank 

our witnesses. We do that almost at every hearing. But I must tell 

you I think your testimonies have been extremely valuable to our 

deliberations, and I thank you for that. It has helped us a great 

deal. The chairman will say the record will be open for a certain 

number of days. I am going to just ask that you be available to 

help us as we try to sort through how to deal with this on an ongoing basis. 

I would just make one further observation, and that is, this is 

a tough subject under any scenario for us to deal with. So it is not 

FOREI-42327 with DISTILLER

43 

an easy subject. But also we are dealing with an administration 

where the President is doing things with his national security team 

and their agencies, which are different than previous administrations, that present additional challenges to us in trying to figure 

out how is the best way to deal with the use of our military. 

So the challenges are really very, very difficult for us, but it is 

something we must deal with. And we thank you very much for 

adding a great deal to our understanding on our responsibilities. 

The CHAIRMAN. I want to thank you all. 

Mr. Bellinger, I do not know that I want to leave open the last 

comment about Syria. We did pass out of this committee an authorization for the use of force. And I do not know if we will ever know 

fully whether the President, who had a 10-hour operation planned 

that I think did certainly firmly sit within his presidential powers 

at the time—had a 10-hour operation planned where no boots were 

going to be on the ground and whether that was an act to keep 

from acting by coming to Congress or whether it was an act to respect Congress’ role we will never know. And I am not trying to 

be pejorative here. I do know this committee acted and passed one 

out. 

Certainly in fairness, we were in the height of an election campaign. There was no question that people on my side of the aisle 

who, generally speaking, would have supported this effort under 

maybe a President of their own party, no doubt rebelled in ways 

that I was very, very surprised. So who knows how the mix of that 

would have ended up. 

Again, it could have been done easily without an authorization. 

No question based on the circumstances at hand. 

I was really proud of this committee and the way that it acted 

during that time. What was really at stake—you know, the Friday 

evening walk around the White House that took place—who 

knows? 

Mr. Hadley, did you want to say something in response? 

Mr. HADLEY. I just wanted to say I have great respect for Senator Markey, and I understand his comment. I just want to say 

that from the standpoint of the Bush administration, while the inspectors were not able to find WMD, the intelligence community 

was telling us that they had stockpiles of chemical weapons, biological weapons, and a revived nuclear program. And that was the 

basis under which we were operating. It was not a case of knowing 

lies, but it was a case of intelligence that was wrong. 

Thank you. 

The CHAIRMAN. Thank you. I appreciate you making that point. 

And with that, again, I want to agree with Senator Cardin. Outstanding testimony. We thank you all for your service to our country in this regard but in other regards also. And I hope at some 

point all of you are back in a more formal capacity in that regard. 

With that, the questions will remain open until the close of business Friday. We know each of you have other responsibilities. To 

the extent you could answer those in a fairly prompt manner, we 

would also appreciate that. Again, thank you. 

And with that, the committee is adjourned. 

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[Whereupon, at 11:21 a.m., the hearing was adjourned.] 

Additional Material Submitted for the Record 

LETTER SENT TO PRESIDENT DONALD J. TRUMP BY SENATOR TIM KAINE AND CONGRESSMAN ADAM B. SCHIFF REGARDING THE APRIL 6, 2017 STRIKE AGAINST THE

SHAYRAT MILITARY AIRBASE IN SYRIA

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Kaine0424-1.eps
45 

Æ 

FOREI-42327 with DISTILLER


Kaine0424-2.eps

through the publications of analyses by the Office of Legal Counse l, in public speeches by senior 

administration officials, and statements by the President himself took care to provide the legal 

hasis for his military actions, as well as the limits of those interpretations. 

By articulating a legal basis for military action, as well as laying out a strategic vision for such 

action, a president provides a justification for the use of the momentous power to commit 

American lives to a cause, but also an understanding of the limits of those powers. 

Accordingly, we ask that you provide a detailed analysis of the legal precedents and authorities 

supponing the action in Syria, and in particular an explanation of whether this action expands 

those precedents for action under Article IT. We also ask that you instruct senior officials in the 

White House, Department of Defense, and Department of State to articulate the Administration's 

legal rationales for military action on an ongoing basis to better inform the public and Congress. 

Thank you for your quick action on this request. 

Sincerely, 

Tim Kaine 

U.S. Senator