U.S. GOVERNMENT PUBLISHING OFFICE

33–954 PDF WASHINGTON : 2019

S. Hrg. 115–446 

WAR POWERS AND THE EFFECTS OF 

UNAUTHORIZED MILITARY ENGAGEMENTS ON 

FEDERAL SPENDING 

HEARING 

BEFORE THE

SUBCOMMITTEE ON FEDERAL SPENDING 

OVERSIGHT AND EMERGENCY MANAGEMENT 

OF THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED FIFTEENTH CONGRESS 

SECOND SESSION 

JUNE 6, 2018 

Available via http://www.govinfo.gov 

Printed for the use of the Committee on Homeland Security 

and Governmental Affairs 

( 
(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

RON JOHNSON, Wisconsin, Chairman 

JOHN MCCAIN, Arizona 

ROB PORTMAN, Ohio 

RAND PAUL, Kentucky 

JAMES LANKFORD, Oklahoma 

MICHAEL B. ENZI, Wyoming 

JOHN HOEVEN, North Dakota 

STEVE DAINES, Montana 

CLAIRE MCCASKILL, Missouri 

THOMAS R. CARPER, Delaware 

HEIDI HEITKAMP, North Dakota 

GARY C. PETERS, Michigan 

MAGGIE HASSAN, New Hampshire 

KAMALA D. HARRIS, California 

DOUG JONES, Alabama 

CHRISTOPHER R. HIXON, Staff Director 

MARGARET E. DAUM, Minority Staff Director 

LAURA W. KILBRIDE, Chief Clerk 

BONNI E. DINERSTEIN, Hearing Clerk 

SUBCOMMITTEE ON FEDERAL SPENDING OVERSIGHT AND EMERGENCY 

MANAGEMENT 

RAND PAUL, Kentucky, Chairman 

JAMES LANKFORD, Oklahoma 

MICHAEL B. ENZI, Wyoming 

JOHN HOEVEN, Montana 

GARY C. PETERS, Michigan 

KAMALA D. HARRIS, California 

DOUG JONES, Alabama 

GREG MCNEILL, Staff Director 

ZACHARY SCHRAM, Minority Staff Director 

KATE KIELCESKI, Chief Clerk 
(III) 

C O N T E N T S 

Opening statement: Page 

Senator Paul ..................................................................................................... 1 

Senator Peters .................................................................................................. 3 

Senator Sanders ............................................................................................... 11 

Senator Merkley ............................................................................................... 13 

Senator Udall .................................................................................................... 15 

Senator Lee ....................................................................................................... 17 

Prepared statement: 

Senator Paul ..................................................................................................... 31 

Senator Peters .................................................................................................. 34 

WITNESSES 

WEDNESDAY, JUNE 6, 2018 

Hon. Andrew P. Napolitano, Senior Judicial Analyst, Fox News Channel ......... 4 

Jonathan Turley, Shapiro Professor of Public Interest Law, George Washington University ................................................................................................. 7 

Christopher Anders, Deputy Director, Washington Legislative Office, American Civil Liberties Union ................................................................................... 9 

ALPHABETICAL LIST OF WITNESSES

Anders, Christopher: 

Testimony .......................................................................................................... 9 

Prepared statement .......................................................................................... 65 

Napolitano, Hon. Andrew P.: 

Testimony .......................................................................................................... 4 

Prepared statement .......................................................................................... 36 

Turley, Jonathan: 

Testimony .......................................................................................................... 7 

Prepared statement .......................................................................................... 49 

APPENDIX 

Statement for the Record from Committee for Responsible Foreign Policy ........ 73 

Responses to post-hearing questions for the Record from: 

Mr. Napolitano .................................................................................................. 75 

Mr. Turley ......................................................................................................... 80 

Mr. Anders ........................................................................................................ 85 

(1) 

1The prepared statement of Senator Paul appears in the Appendix on page 31. 

WAR POWERS AND THE EFFECTS OF 

UNAUTHORIZED MILITARY ENGAGEMENTS 

ON FEDERAL SPENDING 

WEDNESDAY, JUNE 6, 2018 

U.S. SENATE, SUBCOMMITTEE ON FEDERAL SPENDING, OVERSIGHT AND EMERGENCY MANAGEMENT, OF THE COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENTAL AFFAIRS, Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:32 p.m., in room 

SD–342, Dirksen Senate Office Building, Hon. Rand Paul, Chairman of the Subcommittee, presiding. 

Present: Senators Paul, Peters, and Harris. 

Also present: Senators Lee, Sanders, Merkley, McCaskill, and 

Udall. 

OPENING STATEMENT OF SENATOR PAUL1

Senator PAUL. I bring to order the Subcommittee hearing. I want 

to thank everybody for attending. I think this is a very important 

hearing. 

My father used to always say there were two things you rarely 

heard in Washington, and that was either a moral argument or a 

constitutional argument. Today we are going to discuss the Constitution, how we go to war, and what is the Constitution’s approach to war. 

For years now, though, critics have complained that the global 

war on terror has never really been authorized by Congress. 

After the attacks on September 11, 2001 (9/11), President Bush 

did his constitutional duty. He asked Congress to authorize war 

against the people who attacked us on 9/11 or anyone who harbored them or aided and abetted those who had attacked us. 

If you read the authorization, it is actually very specific. Bush 

originally asked for more expansive language, but Congress insisted on narrowing the mandate to use force against only those 

who either attacked us, planned the attack, or harbored the 

attackers. 

Force is authorized against unnamed entities, but they are narrowly defined by their relationship to the attacks of 9/11. Authorization was not given for a global war on ‘‘terror’’ or against radical 

Islamists or separatists or insurgents in various civil wars. Authorization was not given for ‘‘associated’’ forces. 
2 

Authorization was specific and solely to be directed against the 

people who attacked us on 9/11 and anyone who helped or harbored 

them. Period. 

It is safe to say that no one in Congress believed that they were 

voting for a worldwide war on ‘‘terrorism’’ in twenty some odd 

countries that would go on for decades. 

Intellectually honest observers have for years now complained 

that the 9/11 authorization of war does not cover the wars being 

fought throughout dozens of countries in Africa, the Middle East, 

and the South Pacific. 

Basically the expansion of the ‘‘war on terrorism’’ really has occurred without the required constitutional authorization. 

Senators Corker, Kaine, and others wish to rectify the lapse in 

constitutional declaration of war by passing a new authorization for 

force. 

I do not disparage their effort. Their motives are genuine. But 

really there are two big issues here that need to be fully debated. 

No. 1: Does it matter who wields the power to initiate war? 

Our Founding Fathers believed strongly that it did. They squarely delegated the power to declare war to Congress. Madison put it 

this way: ‘‘The executive is the branch most prone to war, therefore, the Constitution, with studied care, vested that power, the 

power to declare war, with the legislature.’’ 

Yes, it is the job of Congress to declare or initiate war, and Congress has been negligent for over a decade now. Congress has not 

done its job. Congress has let President after President strip the 

war power from Congress and concentrate that power in the Executive. 

The second and inseparable issue is: When and where should we 

be at war? 

It is not enough to say Congress should authorize war. The bigger question is where and when should we fight. Our job is not just 

to put a congressional imprimatur on war. The vast and important 

job of Congress is to decide when and where we go to war. 

The debate that should ensue must ask: Are we to authorize the 

status quo? Are we to authorize war in all of the theaters that various Presidents have taken us? Or should Congress limit the scope 

of the worldwide wars we find ourselves involved in? 

Here the Corker-Kaine authorization fails us. The Corker-Kaine 

authorization does not limit the scope of war; it merely codifies the 

status quo and I would argue actually expands the current theaters 

of war. 

Corker-Kaine authorizes war against at least eight groups that 

are known to operate altogether in over 20 countries. Hardly 

sounds like we will have any less war. 

Equally concerning is that Corker-Kaine unconstitutionally delegates or transfers an enumerated power from Congress to the 

President. 

Article 1, Section 8 gives Congress the sole power to declare war. 

Corker-Kaine initially authorizes war against eight groups but says 

to the President: ‘‘Hey, you get back to us and give us an initial 

list in case we missed anyone we are currently at war with. If you 

want to add any ‘associated forces’ to the list, please send us a report.’’ 
3 

1The prepared statement of Senator Peters appears in the Appendix on page 34. 

This authorization transfers the power to name the enemy and 

its location from Congress to the President. 

Worse yet, this authorization changes the nature of declaring 

war from a simple majority, affirmative vote to require a supermajority, veto-proof vote to disapprove of Presidential wars. 

If the President defines a new ‘‘associated force’’ that our military 

will attack, the only way Congress can stop that President is now 

a two-thirds vote to overcome his veto. 

The Constitution is flipped on its head. This authorization fundamentally transfers the delegated power of war declaration from 

Congress to the President. 

The hearing today is convened to explore precisely that question: 

Can Congress transfer the power to declare war to the President? 

In that context, we will discuss the constitutionality of the Corker-Kaine authorization for war. I hope we will have a spirited discussion. 

With this, I would like to recognize the Ranking Member, Senator Peters. 

OPENING STATEMENT OF SENATOR PETERS1

Senator PETERS. Thank you, Mr. Chairman, for calling today’s 

hearing. I continue to be impressed with your willingness to have 

this Subcommittee tackle the big issues, and no issue certainly is 

bigger than War Powers. 

Voting to send our sons and daughters to war is the most important and the heaviest responsibility that a Member of Congress 

bears. We must never forget that while the sacrifice of war is borne 

by our servicemembers and their families, under Article I, Section 

8 of the Constitution, the responsibility of asking for that sacrifice 

is ours. 

Yet, today our warfighters are serving in harm’s way in places 

that have never been named in any declaration of war and facing 

adversaries that cannot be found in any authorization of military 

force. 

The Framers, in their wisdom, separated the power to declare 

war from the power to wage it. But, Mr. Chairman, as you have 

observed, the reality is that we are at war anywhere and anytime 

the President says so. In failing to assert our War Powers, we have 

effectively ceded them to the President. 

Ceding war powers to the President is a way for us to play it 

safe. In avoiding a declaration of war, and in keeping force authorizations vague and malleable, we can blame the President when 

things go wrong. 

But we must not shirk our constitutional responsibility in favor 

of political expediency. We owe it to our servicemembers and their 

families to roll up our sleeves and to have this debate. 

This is not a partisan issue, nor should it be. Congress has not 

declared war since World War II. President Obama did not seek 

congressional authorization for the use of military force in Libya, 

nor did President Trump seek congressional authorization for military action in Syria. 
4 

1The prepared statement of Judge Napolitano appears in the Appendix on page 36. 

The 2001 Authorization for Use of Military Force (AUMF) 

against al-Qaeda has now been used by three Presidents to support 

combat in countries with no nexus to 9/11 and against organizations that did not even exist then. It offends common sense, in my 

mind, and that is why I supported Senator Paul’s effort to repeal 

the 2001 and 2002 Authorizations for Use of Military Force. 

The world has changed since we last declared war in 1942. Our 

adversaries often wear no uniform and swear allegiance to no nation. The technology of war has evolved in ways that would be unrecognizable to the Framers. Our military can impact world affairs 

in an instant with a drone strike directed remotely from inside the 

United States. How we authorize war must adapt to the changing 

threats and technologies. 

But the principle of separation of powers that animated the 

drafters of this Constitution is as sound today as it was in 1789. 

The power to declare war and to authorize military force is Congress’ most sacred responsibility. We must reclaim it. 

I know that our witnesses have spent a lot of time considering 

these issues, and I am eager to hear their views. I want to know 

more about the cost of congressional inaction and ideas for reasserting our constitutional authorities. I am heartened by the bipartisan engagement today and hopeful that we can find solutions 

together. 

I yield back. 

Senator PAUL. Thank you, Senator Peters. 

Let me begin by noting that several Senators who are not on the 

Subcommittee have requested to attend due to their interest in the 

important issue. Therefore, I would like to ask unanimous consent 

to allow Senators Sanders, Merkley, Lee, and Udall, should they 

come, to fully participate in the hearing. 

Our first witness will be Judge Napolitano, who is currently the 

senior judicial analyst at Fox News Channel. Judge Napolitano is 

the youngest life-tenured superior court judge in the history of the 

State of New Jersey. Following his service, he began teaching constitutional law at Delaware Law School for 2 years and at Seton 

Hall Law School for 11 years, where he was chosen by the student 

body as their most outstanding professor. Judge Napolitano has authored seven books on the U.S. Constitution and lectures nationally 

on civil liberties in wartime, the rule of law, the U.S. Constitution, 

and human freedom. 

Judge Napolitano, you are recognized for your opening statement. 

TESTIMONY OF THE HONORABLE ANDREW P. NAPOLITANO,1

SENIOR JUDICIAL ANALYST, FOX NEWS CHANNEL 

Judge NAPOLITANO. Thank you, Senator Paul. When I asked my 

bosses at Fox if I could participate in this proceeding, they asked 

if Senator Sanders was going to be here, and I said, ‘‘Yes, he is.’’ 

They said, ‘‘Well, we are dying to see Bernie Sanders cross-examine 

you. [Laughter.] 

I said, ‘‘It will not be a cross-examination. We agree on everything.’’ 
5 

‘‘Well, we will let you go anyway.’’ 

You know me as a commentator on television, and I have also 

been a professor of law at Delaware Law School, at Seton Hall Law 

School, and at Brooklyn Law School for a total of 16 years. I have 

published nine books on the Constitution, and much of my work 

has concentrated on the separation of powers. We often begin the 

first day of constitutional law by asking the students: What is the 

most distinguishing feature of the American Constitution? This is 

the first day of law school. Most of them will say freedom of speech 

or protection of privacy. Some of them may even say due process. 

But I impose upon them the observation that even the constitutions of totalitarian countries guarantee freedom of speech and privacy and due process, but only ours has the strict separation of 

powers. The structure of the Constitution with the primacy of the 

Congress in Article I is a profound demonstration of the commitment of the Founders to this sacred ideal. Though Senator Peters 

has argued eloquently that the separation of powers is the value 

and the ideal, unfortunately, it is not always the practice because 

Presidents have assumed that they can utilize military force if they 

think it is popular because the Congress will sit back and do nothing. 

All that is necessary for the triumph of evil is for good men and 

women to do nothing. 

When the Congress looks the other way, as it did when President 

Obama bombed Libya and when President Trump bombed Syria, 

this is effectively an amendment of the Constitution by consent. We 

consent by our silence to the President of the United States usurping the authority that the Constitution gives to us. That authority 

is unmistakable. If Madison was clear about anything, he was clear 

that the war power is the most awesome power the government can 

wage, and it can only be reposed in the Legislative Branch. 

The very practical reason for that is war is a failure when it 

lacks broad public support, and only the Congress has its thumb 

on the pulse of the people to determine whether war enjoys broad 

public support. 

Now, the President and the Senate have entered into treaties 

and Congress has enacted statutes which give the President a little 

bit of leeway. If an attack is imminent, he does not have to wait 

for the first missile to come. If we have signed a treaty with an ally 

and the ally needs assistance immediately, he does not need Congress’ intervention there because the treaty has been ratified, and 

under the Constitution a treaty is up there on the hierarchy equivalent to the Constitution itself. 

But does the President of the United States of America have the 

power to bomb another country which poses no imminent threat to 

the United States of America? The answer is very clear, and it is 

a loud and resounding no. The President does not have that authority. When Members of Congress look the other way, it is either 

because of a belief that what the President is doing is popular, let 

him take the heat; a belief that what the President is doing is wise. 

We have not been asked to get involved; we do not want to get involved. We are running for election soon. War may be popular. War 

may be unpopular. Whatever is going through the minds of Mem-
6 

bers of Congress, it is not fidelity to the Constitution. It is not fidelity to the separation of powers. 

I was interviewing a Member of Congress whose name I will not 

mention at the very moment that we broke into the broadcast to 

announce that the President was bombing Libya. I said, ‘‘You are 

of the same party as the President. What do you think about this?’’ 

‘‘Well, the President does not have the authority to do this. We 

all know that.’’ 

‘‘What are you going to do about it?’’ 

‘‘Probably nothing. We are on spring break. He is in Brazil.’’ This 

is when President Obama made this announcement and when the 

bombing occurred. When the congressional break was over and the 

President returned from his trip to South America, nothing had 

happened except that the Constitution was weaker and the power 

of the Presidency was stronger. Gaddafi was about to be killed in 

a horrific way. 

If Gaddafi was so evil that he ought to have been killed by American forces, only Congress can unleash those forces. Madison could 

not have been clearer. 

What troubles me the most is the precedential value that comes 

about when Congress looks the other way. I am not here to criticize 

President Trump. This is not an argument about politics. This is 

an argument about principle. But he had reason to believe that 

Congress would do nothing, because Congress did nothing in these 

other instances in which Presidents went to war. 

Mr. Chairman, I would argue that the AUMFs are unconstitutional because they do not have an endpoint, because they unleash 

the President to pursue who he wants for as long as he wishes to 

do so. I would encourage you to repeal those AUMFs, but not to 

replace them with Corker-Kaine. Senator Corker is a friend of 

mine. Senator Kaine is a friend of mine. This is hardly personal. 

But as you yourself, Mr. Chairman, have pointed out, at the 

present time the President goes around the world—and I do not 

mean President Trump. Presidents go around the world looking for 

monsters to slay, and when it is popular or when in their view it 

is moral, they slay them, and Congress does nothing about it. 

But when this behavior becomes a precedent for future Presidents to do it, when a President in this era can rely on a document 

of no moral and legal value, like the two AUMFs, and Congress 

does nothing about it, the Constitution is being amended by consent. 

I only have a few seconds left. Corker-Kaine: If Congress decides 

to withdraw funds for some military excursion, the President will 

veto the act of withdrawal, and then it will require a two-thirds 

vote of both Houses to overcome that. A President with one-third 

plus one in either House can wage war on any target at any time 

the President chooses to do so. That is so contrary to what Madison 

intended. So contrary to the plain meaning of the Constitution, so 

violative of the separation of powers as to be a rejection of the oath 

to preserve, protect, and defend the Constitution. None of you 

wants to reject that oath. 

I look forward to your questions after hearing from my learned 

colleagues. 

Senator PAUL. Thank you, Judge Napolitano. 
7 

1The prepared statement of Mr. Turley appears in the Appendix on page 49. 

Our next witness is Professor Jonathan Turley. Professor Turley 

is a nationally recognized legal scholar who has written extensively 

in the area of constitutional law. Professor Turley has served as a 

consultant on homeland security and constitutional issues and testified before the House and Senate on constitutional and statutory 

issues. He has been ranked among the top 10 lawyers handling 

military cases, top 15 most cited public intellectuals, and the second most cited law professor in the United States. 

Welcome, Professor Turley. 

TESTIMONY OF JONATHAN TURLEY,1 SHAPIRO PROFESSOR OF 

PUBLIC INTEREST LAW, GEORGE WASHINGTON UNIVERSITY 

Mr. TURLEY. Thank you, Chairman Paul, Ranking Member Peters, and Members of the Committee. It is a great honor to come 

to this Committee to speak about this weighty issue of the Constitution. Indeed, if there is a sacred article of the Constitution, it 

is Article I, Section 8. It is not merely a constitutional but a moral 

responsibility. 

Indeed, the words ‘‘Congress shall have no power to declare war’’ 

fail to capture the moral imperative. It is not simply a power but, 

rather, an obligation that is meant to adhere to each member when 

you raise your hand and you take your oath of office. 

At the earliest stages of our Republic, members began to struggle 

with this responsibility. Regrettably, S.J. Res. 59 is the ultimate 

and perhaps inevitable end to that process. The new AUMF 

amounts to a statutory revision of one of the most defining elements of the United States Constitution. 

We find ourselves at this ignoble moment not by accident but by 

decades of concerted effort by members of this institution to evade 

the responsibilities given to them by the Framers of our Constitution. 

The result is that our citizens are taught, our children are taught 

a false assertion that members of this body will declare war and 

have the sole responsibility to do that. After all, the provision 

speaks loudly to that, clearly to that. 

What this does and what past AUMFs have done is to reduce 

that very loud declaration of irresponsibility to what Macbeth referred to as voices ‘‘full of sound and fury and signifying nothing.’’ 

My written testimony details the express intent of the Framers. 

I would just simply note one aspect that I find most telling. We 

have plenty of quotes from my favorite Framer, James Madison, 

but for virtually every Framer, this is one of the few points upon 

which there was almost unanimity. I say ‘‘almost’’ because Pierce 

Butler actually proposed to give this entire power to the President 

of the United States. He did not receive a second. He spoke to a 

room of Framers and made that proposal, and not a single one seconded that motion. 

That was one of the most important moments of our Republic. 

That silence, the absence of a second, shows where we began, as 

men of conscience and principle who knew that they had to strike 

this compromise, to restrict the powers of the Presidency and to 

give this sacred duty to this institution. It was a compromise. But, 
8 

of course, it is hard to see how that express language got us to 

where we are today. In almost 250 years, we have had five declared 

wars with only 11 declarations in those five declared wars. 

It actually began poorly. We did not even get out of the 18th 

Century before members of this institution found ways to get 

around this duty. When John Adams wanted to start the Quasi 

War, to his credit they did put forward legislation that referred 

specifically to the French vessels that could be boarded. But it was 

not a declaration. We were not even out of the 18th Century before 

politicians found a way to get around this duty. 

Now, our last declaration was in 1942, and that record has made 

a mockery out of the statement of George Washington in 1793, 

when he said, ‘‘The Constitution vests the power of declaring war 

in Congress.’’ He added this: ‘‘Therefore, no offensive expedition of 

importance’’—‘‘no offensive expedition of importance’’—‘‘can be undertaken until they have deliberated upon the subject and authorized such a measure.’’ 

We have made a mockery of that statement. We have made a 

mockery of Article I and Section 8. 

Now, before I mention some of the flaws I see in this legislation, 

I want to know one thing, and this sort of reflects my friend in 

terms of what he said. There is a path dependence with AUMFs. 

There is an assumption that we should only be debating the scope 

and the standards by which a President has to satisfy. There is 

still the original question. Many of us do have constitutional reservations about the AUMFs. If anything, the wisdom of the Framers has been made evident in our modern history. We are at war 

everywhere, always. We have forever war. It was not the Framers’ 

fault. That is in direction violation of what they thought would prevent it. They hated war. Framers despised it. They believed that 

Presidents and chief executives were naturally inclined toward 

war. That is why they made this such a clear standard. 

Now, in my testimony I talk about the problems that I see in this 

proposal and why I think it is worse than the current AUMF, 

which takes quite an effort. I will not go through all the details 

about how the new nations or countries are added, the associated 

forces, or the shift from an ex ante to an ex post action. All of those 

are fundamental flaws that go even further from where we were. 

The ex ante/ex post problem I think is really the signature moment of this law. This body has failed historically to require a declaration, so they got rid of the declaration. Then they failed and got 

rid of the need to specify as to which nations we are going to go 

to war against. Now they are about to get rid of even the requirement to get any type of prior authorization. It will make this body 

a pedestrian to war, and it will put war-making on autopilot. 

This law does not even have a sunset provision. It just goes on. 

I could see why that is so tempting to have. It certainly relieves 

members of this body of the rather uncomfortable questions that do 

come up. 

But in my remaining few seconds, I will simply note this: Under 

the past circumvention of Article I, Section 8, under the former 

AUMFs, we have gone through 17 years of war. You adopt this proposal, we will have 170 more, because this has virtually no stand-
9 

1The prepared statement of Mr. Anders appears in the Appendix on page 65. 

ards. It will effectively revise the Constitution of the United States 

without an amendment. 

I have had the honor of testifying before this body, also your 

counterparts in the House, many times. But today I took a step 

that I have not done before, and I have asked two of my sons to 

come with me. I have four children. My sons Aidan and Jack are 

behind me. They are both either at draft age or about to be at that 

age. I felt that they should be here to watch part of this process 

because they may well be asked to pay the ultimate price for the 

authority that Congress may soon bestow upon the President. 

If called, I know they will do their duty, as did their grandfather 

and great-grandfather and other people in my family in previous 

wars. I do not have any question about them doing their duty. But 

I do have a question whether the members of this institution will 

do their duty and stand with the express language of the Constitution, reject this proposed AUMF, and show the Framers that the 

faith that they put into this body was well placed. 

Thank you again for the honor of appearing before you today, 

and I would be happy to answer any questions you might have. 

Senator PAUL. Thank you, Professor Turley. 

Our next witness is Christopher Anders. He is the Deputy Director of the Washington Legislative Office of the American Civil Liberties Union (ACLU). Mr. Anders leads the ACLU’s Washingtonbased advocacy on topics of war authority, detention, torture, and 

Guantanamo issues. He has also written extensively on the topic 

of the Authorizations for the Use of Military Force, declarations of 

war, and separation of powers. Mr. Anders. 

TESTIMONY OF CHRISTOPHER ANDERS,1 DEPUTY DIRECTOR, 

WASHINGTON LEGISLATIVE OFFICE, AMERICAN CIVIL LIBERTIES UNION 

Mr. ANDERS. Thank you. Chairman Paul, Ranking Member Peters, and Members of the Subcommittee, the American Civil Liberties Union would like to express our appreciation to you for holding this hearing today. 

No decision by government is graver or more consequential than 

the decision to go to war. Over the many years since Congress 

passed the AUMF in 2001, the ACLU has dedicated ourselves to 

defending civil liberties and human rights that have been jeopardized by, at best, tenuous claims of the 2001 AUMF as legal authority, or more chillingly, by Presidential claims of Article II authority 

in a complete absence of any advanced congressional authorization. 

These harms have included the drone killings of even an American citizen, broad surveillance of American citizens, the kidnapping and torture of suspects, and indefinite detention without 

charge or trial, even of an American citizen apprehended here in 

the United States. 

While it would be impossible for one Congress to undo the damage of nearly 17 years of Presidential overreach and congressional 

negligence, we propose in our written statement a three-step process for Congress to reclaim its exclusive constitutional authority to 
10 

decide whether the United States should be at war. For now, in my 

oral testimony I will focus on the most pressing first step. 

Dr. Paul, to apply to Congress the first principle of medical care, 

‘‘First, do no harm,’’ the top priority for this Senate must be to ensure that S.J. Res. 59, the Corker-Kaine AUMF, does not become 

law. It would be hard to overstate the depth and breadth of the 

dangers to the Constitution, civil liberties, and human rights that 

would be caused by the Corker-Kaine AUMF. The damage would 

be colossal. Not only would it almost irretrievably cede to the Executive Branch the most fundamental power that Congress has under 

Article I of the Constitution—the power to declare war—but it also 

would give the current President and all future Presidents authority from Congress to engage in worldwide war, sending American 

troops to countries where we are not now at war and against 

groups that the President alone decides are enemies, against 

groups that do not even exist today. 

The Corker-Kaine AUMF would authorize force, without operational limitations, against eight groups in six countries. The President could then add to both lists, as long as the President reports 

the expansion to Congress. To be clear, the President would have 

unilateral authority to add additional countries—including the 

United States itself—to the list of countries where Congress is authorizing war. The President would have unilateral authority to 

add additional enemies, including groups in the United States itself 

and even individual Americans under its new authority for the 

President to designate ‘‘persons’’ as enemies. 

Although Congress could bar an expansion to additional countries or additional groups, such action would effectively require a 

two-thirds majority of both Houses, given that the President presumably would veto legislation to curtail an expansion that the 

President himself has ordered. Every President for the coming decades would effectively be able to claim for the Executive Branch 

much of the power that the Constitution gives to Congress and 

gave to Congress exclusively. 

Before closing, I want to point out a sleeper provision with the 

innocuous title ‘‘Section 10 Confirming Amendment.’’ This provision 

greatly expands the scope of the infamous 2012 National Defense 

Authorization Act (NDAA) indefinite detention provision. In its single sentence, Section 10 of the Corker-Kaine AUMF would expand 

the NDAA indefinite detention authority by adding this new AUMF 

as a basis for the military to capture and imprison individuals in 

indefinite detention without charge or trial. The Corker-Kaine 

AUMF, like the NDAA detention provision itself, has no statutory 

prohibition against locking up American citizens or anyone picked 

up here in the United States itself. While we continue to believe 

it would still be unlawful for a President to try indefinite detention 

of an American citizen in the United States (again), there is no reason for Congress to risk it. 

When Congress considered the NDAA indefinite detention provision in 2012, the uproar from across the political and ideological 

spectrum was deafening. But it narrowly passed, and President 

Obama signed it. When the President signed it, he made a promise, 

as part of his signing statement, that he would not use it against 

American citizens. But that is it. It was a promise. He never said 
11 

and nowhere did either President Obama or President Trump deny 

that either they or future Presidents would have the power to order 

military detention. The loaded gun was left on the shelf. The Corker-Kaine AUMF would make the NDAA detention provision an 

even greater threat to civil liberties and human rights. 

While we share the frustration of many Senators with expansive 

Presidential claims of war authority, including Senators Corker 

and Kaine, who have over and over again expressed their frustration with that, the proposed Corker-Kaine AUMF would cause far 

greater problems than it would solve. The ACLU strongly urges all 

Senators to oppose the legislation. 

Thank you again, Mr. Chairman, for holding this hearing and 

considering these views. 

Senator PAUL. Thank you, Mr. Anders. Because I believe in being 

kind and welcoming to guests, we are going to let our guests go 

first today, and we will start with Senator Sanders. 

OPENING STATEMENT OF SENATOR SANDERS 

Senator SANDERS. Senator Paul, thank you very much for holding 

this hearing, and let me thank our panelists for, without exception, 

their very cogent testimony. 

Article I, Section 8 of the Constitution states very clearly, and I 

quote, ‘‘Congress shall have the power to declare war.’’ The Founding Fathers gave the power to authorize military conflicts to Congress for one very simple reason: Congress is the branch of the government that is most accountable to the people. 

There is no question but that over the years Congress has allowed its authority over this very important issue of war-making 

to ebb. It is time for us to reassert that authority and to start asking some very tough questions about the wars—and I use the word 

‘‘wars,’’ W–A–R–S—that we are currently in. 

Now, some people may think that this is an interesting abstract 

discussion. We have brilliant constitutional scholars, wonderful intellectual debate. But let me assure every person here that the abdication of Congress to its responsibilities over war has had incredibly dire and horrific consequences for the people of our country 

and, in fact, the world. 

I want to bring this down to earth and away from an abstract 

although enormously important constitutional discussion. I want to 

give you three examples in recent American history where Congress did not ask the right questions, abdicated its responsibility, 

and the consequences were enormous. 

Very few Americans know that when we deal with Iran, very 

much in the news right now—how many people know that in 1953 

the United States along with the British overthrew the democratically elected government of Mohammad Mosaddegh, reinstalling 

authoritarian rule under the Shah? In 1979 the Shah was overthrown, and the Iranian Revolution brought into power an extremist anti-American government. In 1953 the U.S. Government, without congressional approval, thought that it could simply remove the 

Government of Iran in order to protect wealthy oil interests. What 

has been the consequences of that over the years? Congress abdicated its responsibility. 
12 

The second one, more relevant to my generation, was the war in 

Vietnam. Now Iran took place under Eisenhower, a Republican. In 

1964 Lyndon Johnson, a Democrat, otherwise in my view a very 

great President, but in this instance cited an attack on a U.S. ship 

in the Gulf of Tonkin as a pretext for escalating the U.S. intervention in Vietnam. But we now know from his own recordings that 

Johnson himself doubted that story about that attack. Johnson’s 

Administration misled both Congress and the American people into 

a war that resulted in the loss of over 50,000 American soldiers 

and over a million Vietnamese. Congress was lied to. There was no 

serious debate about American intervention in that war. 

The third example, more recently, that we all remember was 

Iraq. Today it is now broadly acknowledged that the Iraq war was 

a foreign policy blunder of enormous magnitude. In this case, the 

Bush Administration lied to the American people, claiming that 

Saddam Hussein had weapons of mass destruction. The result of 

that war, the loss of thousands of brave American soldiers, the displacement of millions of people in the Middle East, and bringing us 

to where we are right now. 

In other words, what we have seen is time and time again disasters occur when Administrations, Democrat and Republican, mislead Congress and the American people and when Congress fails to 

do its constitutional job in terms of asking the hard questions of 

whether or not we should be in a war. I think we need to ask that 

very hard question today. 

Here is the point that I hope the American people are asking 

themselves. Is the war on terror a perpetual, never-ending war necessary to keep us safe? I personally believe that we have become 

far too comfortable with the United States engaging in military 

interventions all over the world. After 9/11 Congress passed an Authorization for the Use of Military Force ‘‘against those responsible 

for the recent attacks launched against the United States.’’ The following year Congress passed the 2002 AUMF against Iraq. 

We have now been in Afghanistan for 17 years. We have been 

in Iraq for 15 years. We are occupying a portion of Syria, and this 

Administration has indicated that it may broaden that mission 

even more. We are waging a secretive drone war in at least five 

countries. Our forces right now as we speak are supporting a 

Saudi-led war in Yemen which has killed thousands of civilians 

and has created the worst humanitarian crisis on the planet today. 

Clearly these outdated and expansive AUMFs have been used by 

three different Administrations, Republican and Democrat, as a 

blank check for the President to wage war without congressional 

consent or oversight. Meanwhile, we are currently ‘‘fighting terrorism’’ in some 76 countries, with an estimated cost of $5.6 trillion 

and untold lives lost since 2001. 

I think it is very clear—and our panelists I think made the point 

extraordinarily well, without exception—that the time is long overdue, Mr. Chairman, for the U.S. Congress to respect the Constitution of this country, to stand up for that Constitution, and to demand that it is the Congress of the United States, not a President, 

who determines whether our young men and women are put in 

harm’s way. 

Thank you again, Mr. Chairman. 
13 

Senator PAUL. Thank you. 

We will next turn to Senator Merkley. 

OPENING STATEMENT OF SENATOR MERKLEY 

Senator MERKLEY. Thank you very much, Mr. Chairman, for setting up this hearing. 

Under what authority do each of you feel that we are currently 

in Syria taking on Islamic State of Iraq and Syria (ISIS)? Judge 

Napolitano? 

Judge NAPOLITANO. I do not think we are in Syria by any constitutional authority because, like your colleague Senator Sanders, 

I do not believe that either of the AUMFs were constitutional because they did not adequately articulate a target and they did not 

put in there an endpoint. But Presidents of both parties have used 

sort of the vague principles that they believe are emanating from 

the AUMFs to justify the type of incursion that you are asking 

about. 

Senator MERKLEY. Mr. Turley? 

Mr. TURLEY. Actually, I see no authority even under the AUMFs, 

certainly not under the Constitution. It is unfortunately a less than 

noble lie that we have seen come out of the AUMFs has been that 

there has been the specificity as to targets, which was there really 

for public consumption. This proposed legislation has that same 

technique. It gives some specific references while having provisions 

that that list can be expanded almost at al by the President subject 

to a retroactive or some post hoc action by Congress. 

Senator MERKLEY. Mr. Anders, do you see any current constitutional authority? 

Mr. ANDERS. No, and at the time that the government made the 

decision, the Obama Administration made the decision to claim 

that the 2001 AUMF was authority to go after ISIS fighters, Chairman Paul, had legislation in that was a declaration of war focused 

in on—for 1 year, on ISIS. That was a constitutional way to take 

on that fight. What they did instead was that they had this very 

tortured interpretation of the 2001 AUMF and applied it to a group 

that was actually at war with core al-Qaeda. 

Senator MERKLEY. Thank you. The reason I asked you the question is three esteemed experts have just clarified that we do not 

have a constitutional authority and yet our forces are in this battle 

in Syria. I wanted to use that as a way to dramatize what has happened since 2001 in which there was a very precise AUMF, very 

carefully constricted to those who attacked us on 9/11 and those 

who harbored those on 9/11. Since then it has been stretched and 

expanded to country after country, organization after organization. 

I think you all agree with that characterization of 2001 being 

stretched beyond recognition such that it does not really provide a 

constitutional foundation for current conduct of military forces in 

these countries. 

Now we are at this point, this point at which people are saying 

2001 should not be allowed to continue. It has been abused so 

much, and we have the Corker-proposed AUMF. I have an impression that when you analyze the details of it and what it authorizes, 

in multiple organizations and multiple countries, with the President allowed to add an additional list, and that that additional list 
14 

can be added without preauthorization by Congress, that it essentially codifies the expansion, the stretching of the 2001 AUMF. Is 

that a fair way to describe it? 

Judge NAPOLITANO. Yes, it is a loaded gun. 

Senator MERKLEY. OK. Yes? 

Mr. TURLEY. Yes. 

Mr. ANDERS. At a minimum, yes. 

Senator MERKLEY. Senator Corker, who I deeply respect for having wrestled with the 2001, and Senator Kaine have tried to figure 

how to replace 2001, they have come up with this proposal which 

disturbs me for the reasons that you all have been sharing. But 

Senator Corker fairly said, ‘‘So if you all do not like this, what 

would you do?’’ Mr. Anders, you mentioned—I think your closing 

comment was you encourage members to consider presenting what 

could be done as an alternative. I have presented such an alternative. I do not know if each of you is familiar with it. But one of 

the things it does is have a sunset in it, so it periodically would 

require us as the Senate and House to re-examine the foundations 

and the considerations. 

Do each of you think a sunset is an important provision in an 

AUMF so we do not have unending war without reconsideration or 

reauthorization by Congress? 

Judge NAPOLITANO. A sunset, Senator Merkley, is certainly helpful because it compels the Congress, the representatives of the people, periodically to review what the President is doing in their 

name. My own view would be legislation which simply says the 

President shall not use military force—military or civilian, because 

Presidents use intelligence forces and thereby bypass the War Powers Resolution. 

Senator MERKLEY. Well, my time is going to run out. 

Judge NAPOLITANO. I did not mean to take—except in accordance 

with the Constitution. 

Senator MERKLEY. Mr. Anders, I know you have seen what I 

have put together to try to very tightly constrain just to two countries and three forces, put a 3-year sunset on it, and require any 

expansion of that by the President, including an expansion to 

ground forces, to require preauthorization so we have the constitutional vision represented in that AUMF. Any insights on whether 

that puts us more clearly on the track envisioned in our Constitution? 

Mr. ANDERS. Yes, we are really pleased with how you put together your AUMF. We do not take a position, the ACLU has never 

taken a position on whether the United States should be at war 

against a particular country or a particular group. But in terms of 

how it fits with the Constitution’s separation of powers, the AUMF 

you put together fits very well. It is up to Congress then to make 

that decision on do we want to, as a country, be at war with these 

particular groups and these particular countries. But in terms of 

kind of fitting into a constitutional framework, yes, it does. 

Senator MERKLEY. I just want to note that several of you pointed 

out that Members of Congress are uncomfortable with having to 

make these tough decisions. It is easy to take what was vested in 

Congress and simply deliver it to the executive and let them take 

the heat. 
15 

I find that unacceptable. I find this inversion of the Constitution, 

this proposed inversion in which the President can go at forces in 

new countries, new organizations, deciding on his or her own 

whether or not it meets the test that is in the AUMF, and that 

Congress would have to come around after our forces are deployed 

and get a supermajority of both chambers to close the door, something that nobody thinks Congress would ever do, so in sum we end 

up with a wholesale transfer of our responsibilities carefully crafted. It is tough for us to make these decisions, but it is our responsibility, and it is why we need to craft a replacement AUMF that 

honors that vision of the Constitution and makes us have the tough 

debates and the tough votes. 

Thank you. 

Senator PAUL. Senator Udall. 

OPENING STATEMENT OF SENATOR UDALL 

Senator UDALL. Thank you, Mr. Chairman, and I really appreciate your calling this hearing and having these three experts before us here. 

Mr. Anders, I asked the following question of Secretary Pompeo 

over at the Foreign Relations Committee, and I wanted to get your 

perspective on this. The Chief of Staff of the Army, General Milley, 

reminded us recently in an Appropriations hearing on the nature 

and character of war. The traditional idea is that war at its base 

is an extension of politics. War forces our will on the opponent 

through military means to reach a political objective. Taking an expansive view of what Congress approved on 9/11, the political objective is to stop terrorism at a broad level. However, a more restrictive view and the view that was sold to Congress when I voted 

in favor of that 9/11 AUMF was that we aim to punish and deter 

the perpetrators of the 9/11 attacks, specifically al-Qaeda and the 

Taliban. Which view do you believe is the correct one, Mr. Anders? 

Mr. ANDERS. That is easy. I think it is the narrower view. I think 

Congress at that time worked hard to come up with specific language, and there was a back-and-forth that has been reported on 

quite a bit—it was reported on at the time—between the White 

House and drafters in Congress on coming up with that language. 

The part that is frustrating I think for all of us now is when we 

talk about a new AUMF, we are talking about the need for specificity and naming your objectives and naming the enemy. It is hard 

to see how that 2001 AUMF could have been made more specific 

than it was in terms of naming what the objective was and who 

it was that the United States was going to war against than what 

it is. 

The only shortcoming in it was that given that the United States 

at that time did not know the exact names of who it was we were 

at war with, it did not include the exact names, but other than that 

I think it is pretty clear that it was for core al-Qaeda because of 

their role in the 9/11 attacks and the Taliban for harboring them, 

period. 

Senator UDALL. One of the restraints on war was recently put in 

a commentary by Dr. Sarah Kreps over at Cornell, and she is the 

author of a new book called ‘‘Taxing Wars: The American Way of 

War Finance and the Decline of Democracy.’’ She really makes the 
16 

point that when you have a tax on war, you are involving everyone. 

Everyone understands that the society as a whole is backing this 

war. 

In the distant past, we paid for wars with war taxes. More recently, Members of Congress have proposed these taxes to raise 

public awareness about the cost of war and to share the sacrifice 

beyond a small percentage of Americans who fight in these wars. 

What do you think of a proposal for a war tax, other than digging 

us deeper into debt? 

Mr. ANDERS. I do think the bigger point of having the country 

have a greater investment and a greater knowledge of what the 

costs of war are, one of the problems that we have had with the 

lower cost of war in terms of American lives and American treasures with the use of drones and new technology is that a lot of the 

more obvious costs of war are not as apparent. Focusing in on what 

the financial costs are would probably be a very helpful way for 

people to have a better understanding of the full extent of what 

this actually means. 

Senator UDALL. I think you would end up having a debate about 

whether or not to commit ourselves to many of these very dangerous situations. 

Along that same line, some people, when I go home and do town 

hall meetings and hear from my constituents, have asked: Why are 

we not seeing people in the streets like in Vietnam or anti-war activity on our campuses? The answer I always get is there is no 

draft. Should we relook at this? Do you consider a draft a check 

on foreign wars? 

Mr. ANDERS. In the past, certainly—I have been at the ACLU 20 

years; it predates my time there. But I know we have had a lot of 

concerns historically about a draft in terms of its impact on civil 

liberties and also in terms of equality and who is subject to it. That 

is not a proposal that we are supporting. 

Senator UDALL. The Office of Legal Counsel (OLC) recently released its legal justification for the strikes in Syria. The memo 

states that the President identified three interests in support of the 

April 2018 Syria strikes: one was the promotion of regional stability; two, the prevention of a worsening of the region’s humanitarian catastrophe; and, three, the deterrence of the use and proliferation of chemical weapons. 

The OLC relies on the President’s Article II authority, and as 

Harvard professor Jack Goldsmith says, the Justice Department 

now officially and publicly believes the President can use significant air power without congressional authorization on the grounds 

of humanitarian intervention and deterrence of the use of chemical 

weapons. 

I find that OLC opinion extremely alarming. Do you agree with 

the Justice Department that these strikes can be justified via Article II authority alone? 

Mr. ANDERS. As disturbing as some of the claims made based on 

the 2001 AUMF have been, that opinion, the May 31, 2018, opinion 

on Syria strikes, strikes on Syrian targets and the April 1, 2011, 

opinion during the Obama Administration from the Office of Legal 

Counsel on the air campaign against Libya are chilling. They both 

are essentially the President claiming for himself the war authority 
17 

that the Constitution gave to Congress alone. They are very expansive claims, and I think a lot of us thought that the Libya opinion 

was about as aggressive and as expansive as one could be, and that 

was only topped last week with the one on Syria. I do think it is 

a challenge for the Senate to figure out how to use the legislative 

process to pare that back, to invalidate those opinions and those relying on them, but ultimately that is probably going to require also 

using the power of the purse and cutting off funds for unauthorized 

military campaigns. 

Senator UDALL. Chairman Paul, thank you so much for this 

hearing. 

Senator PAUL. Thank you. Senator Lee. 

OPENING STATEMENT OF SENATOR LEE 

Senator LEE. I want to thank Senator Paul for organizing this 

hearing, and I want to thank the three of you in particular for your 

willingness to come and offer your expertise and insights that you 

have offered today, which are really helpful. 

We are now in our 17th year of deployment under the 2001 Authorization for the Use of Military Force. It is not yet the case that 

our most junior personnel deployed were not born as of the moment 

that 2001 AUMF was issued by Congress, but it will soon be the 

case. Long before it is even fathomable that we will have retreated 

from these battlefields, it will be the case that this AUMF was 

issued before they were born. 

In the meantime, we have some issues to deal with. We have 

spent $2.8 trillion in these efforts under the 2001 and 2002 

AUMFs, and there is not a lot of accountability that comes when 

Congress continues to look the other way or tolerate ongoing efforts, ongoing deployments consistent with those 2001 or 2002 

AUMFs without having additional discussions on what exactly we 

are doing, on why U.S. blood and treasure should be put on the 

line. 

Instead of the people’s elected representatives debating and discussing these things in real time, these issues have been left to the 

will and the whim of a small handful of political elites in Washington, DC. This is scary, and it is contrary to the text, the structure, the history, and the tradition underlying our Constitution. It 

is one of the reasons why I welcome this hearing and why I think 

we need to have this discussion. 

I have a few questions. We will start with you, Mr. Anders. Earlier this year, as you are probably aware, Members of Congress receives a letter from the Department of Defense (DOD) relying on 

a 1975 argument suggesting that the only time Congress has an indispensable role in authorizing U.S. forces to be deployed is when 

deployed units of U.S. forces are on the ground engaged in a kinetic 

exchange. Do you agree with that? If not, why? 

Mr. ANDERS. No, we do not agree with that. First of all, it is Congress’ exclusive authority to provide authorization in advance before a military engagement in the absence of a need to repel a sudden attack, and that is the constitutional standard. 

Senator LEE. It is often now how we fight wars today, anyway. 

There is lots of kinds of warfare that we engage in today that does 
18 

not necessarily involve a kinetic exchange between people on the 

ground. 

Mr. ANDERS. That is right, and I think, this again is something 

that began during the Obama Administration, this definition of 

what ‘‘hostilities’’ mean under the War Powers Resolution, and the 

position that President Obama eventually took was that hostilities 

did not include air power in the absence of ground troops. That, of 

course, means that lots of places, as you just referenced, where the 

United States is at war are not considered hostilities. Therefore, 

the War Powers Resolution, which it does include deadlines for 

withdrawing in the absence of congressional authorization, do not 

apply. With that opinion from Harold Koh, then the legal adviser 

at the State Department to President Obama, the Executive 

Branch pretty much wrote out of existence a good part of the War 

Powers Resolution. 

Senator LEE. Which is of concern to many of us here and ought 

to be more so than it is within Congress. 

Professor Turley, as you know, it was well understood at the 

time of the founding and was made an understanding based on 

how the Constitution was written that the President, unlike the 

King, would not have unilateral power to go to war. In fact, Hamilton makes this point in Federalist No. 69. When people talk about 

the immense power vested in the Executive to deploy military personnel, from what source are they claiming that authority exists? 

Mr. TURLEY. There is no source. The interesting thing about this 

particular provision in Article I, Section 8 is it was viewed at the 

time as the defining work of the Convention. The Framers joined 

together—who were normally not in agreement—and said this is 

how we can address this defining issue. They all agreed that they 

did not want a situation like the one we have today where a President has this type of unilateral authority, and they believed they 

had fixed the problem because Article I, Section 8 could not be 

more clear. 

To fold this back to the question that you asked my colleague, 

the definition that the President put forward of this kinetic conflict 

was used in the litigation that I led on behalf of Democratic and 

Republican members. The Obama Administration came forward 

when we were challenging the Libyan war as an undeclared war 

and came into court and said, ‘‘You know what? It is not a war by 

our definition.’’ When they made that argument, they went further 

than that, and they said, ‘‘The President alone defines what war 

is.’’ 

Now, we responded to the court and essentially asked, ‘‘Does that 

track with you? Do you honestly think that the Framers put this 

specific of an obligation, spent this amount of time, and it all comes 

down to a noun that the President is simply allowed to define?’’ 

By the end of the litigation, by the way, I had no better idea of 

what ‘‘kinetic’’ means in wartime than I did before. 

Senator LEE. It means you are hitting stuff, I think. 

Mr. ANDERS. Yes, I guess so. But it got to that point of absurdity. 

This is all an effort to avoid clarity, you try to—change the noun, 

if you cannot deal with the obligation. 

Senator LEE. To avoid clarity, I think that is a good description, 

to avoid clarity in a place where morality, decency, and justice 
19 

would seem to demand clarity and where the Constitution provides 

clarity. 

Judge Napolitano, I want to talk to you for a moment about the 

associated forces doctrine. Executives from both political parties for 

decades now have used this as justification for a number of military operations. But when I read the text of the 2001 Authorization 

for the Use of Military Force, it seems somewhat clear to me that 

it covers a fairly narrow scope of targets, to include ‘‘those nations, 

organizations, or persons that he’’—‘‘he’’ being the President—‘‘determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.’’ 

Can you explain to me the limits of this AUMF, meaning what 

groups or geographic regions the U.S. could legitimately go into 

under this authority? 

Judge NAPOLITANO. Senator Lee, I have argued that the AUMFs, 

both of them, 2001 and 2002, are unconstitutional because they fail 

to include an endpoint. That is the reason we are having this hearing today, because Presidents have used these to go wherever they 

wanted to go. George Orwell predicted all of this when he said 

words would determine liberty. If the President can define war 

rather than the Congress defining war, he or she will define it in 

a way to facilitate his or her use of it. 

At one point the Obama Administration argued that the use of 

intelligence forces on the ground who were not wearing uniforms 

with insignias on them is not the same as military forces on the 

ground. They looked a little different because they did not shave 

every day, but they were carrying the same type of offensive weaponry with which to kill people that had not been authorized by the 

Congress. 

The use of the phrase ‘‘associated forces’’ and permitting the 

Commander-in-Chief to define what those mean—I used this 

phrase earlier with Senator Merkley—is like, Justice Jackson said, 

dissenting in Korematsu, ‘‘a loaded gun’’ in a desk drawer of the 

President, ready for him to take it out and shoot it whenever he 

wants. 

Senator LEE. Well said. I see my time has expired. Thank you, 

Mr. Chairman. 

Senator PAUL. Senator Peters. 

Senator PETERS. Thank you, Mr. Chairman. Gentlemen, thank 

you for your testimony here today. It is certainly an interesting discussion. 

I wanted to take my time and discuss something that is actually 

happening today and get your sense of what you are seeing and 

your thoughts. Today the Senate, as you know, is starting debate 

on the National Defense Authorization Act for 2019, and the bill 

that was before us includes a provision that will allow the Secretary of Energy to pursue development of a low-yield nuclear 

weapon without first receiving specific authorization from Congress. 

I voted against this provision as a member of the Armed Services 

Committee, and it literally strikes from current law a requirement 

that a new low-yield nuclear weapon be ‘‘specifically authorized by 

Congress,’’ and it replaces it with a provision that will allow the 
20 

Secretary of Energy to decide on his own whether or not to go forward. 

The provision that is struck was a limitation that Congress put 

in place about 15 years ago to ensure that the legislature and not 

the Executive Branch would make such a highly consequential decision. I would argue if Members of Congress think that our arsenal needs a low-yield nuclear weapon that we should debate it, we 

should authorize it, and do it in full view of the American people 

as existing law requires. Instead, some are trying to change the 

rules to allow the Executive Branch to make this decision without 

congressional approval. I think that is fairly clear. 

For the panel, what are your thoughts? Is this an appropriate 

delegation of congressional responsibility? 

Judge NAPOLITANO. In my view, Senator Peters, it is not. I would 

have commended you and do commend you for your vote and for 

your understanding. The point I tried to make in my initial comments was it is often the subtle and unseen passage of power from 

the Congress to the President that comes back to wreak the most 

havoc. Quite frankly, as a person who monitors this, I was unaware 

until you discussed this just two minutes ago that this is being debated by the Senate today. This is profoundly hideous and utterly 

unconstitutional that bureaucrats in the Executive Branch would 

have power that Madison and Company expressly gave only to the 

Congress. 

Senator PETERS. Any others? 

Mr. TURLEY. I would simply add that I do find it very problematic in terms of using the appropriations process as a substitute for 

an authorization and a full debate. You have two former House 

pages here. We will not tell you the years we served. But you can 

look it up because of what I am about to mention. When I was a 

House leadership page, we had the debate over the neutron bomb 

of whether to allow the neutron bomb to be developed or whether 

it was a new type of weapon that would make nuclear war more 

feasible and, therefore, more likely. 

I stood there on the House floor listening to that long debate that 

went into the earliest hours. It was one of the most profound experiences of my life, and I came away with a deep respect for members on both sides that spoke honestly, directly about the consequences and the issues behind that type of weapon. I remember 

thinking as a young page that this is a pretty great place when we 

debate whether we should do something, not whether we could do 

something, and what implications does it have not just for us but 

for the world. That is a debate that I think you should always 

want. 

The other point I was going to mention is in my testimony I talk 

about the problems that we are having not just with the failure of 

Congress to carry out its duties under Article I, Section 8, but its 

collateral failure to deal with its obligations under the appropriations powers. When we litigated against the Libyan war, one thing 

a lot of people did not realize is that war was completely paid out 

of loose change. Congress never appropriated money for the Libyan 

war. We did an entire war that was paid for because Congress 

gives so much money to the Defense Department, they can actually 
21 

have a war based on the money you give them and do not commit 

to. The failure is on both sides of this issue. 

Senator PETERS. I appreciate that. Mr. Anders, I am going to ask 

you to answer a slightly different question, but picking up from 

this debate on nuclear weapons, the consequential nature of them, 

and why congressional input and debate is, in my mind, essential 

and it seems as if both of our previous witnesses would agree with 

that. I spend a great deal of time thinking about the future of warfare, which is going to change in absolutely dramatic ways. I am 

intimately involved in self-driving cars and autonomy and things 

that are happening in that scope. It is driven by artificial intelligence and machine learning. The face of warfare will be radically 

changed in the next 5 to 10 years. I think it raises some profound 

issues certainly of the morality and ethics of what we are dealing 

with, but also some significant policy issues, and perhaps a view 

of what Congress’ involvement should be given the fact that this 

technology is changing rapidly and our adversaries may not be 

bound by the same types of constraints that we have here. 

I want to get your thoughts. What should we be thinking about 

in terms of war powers given the fact that technology will be 

changing dramatically and in profound ways? I know you mentioned a little bit about that earlier, Mr. Anders. I would like to 

have your thoughts. 

Mr. ANDERS. Yes, I think this is one place where the need for 

specificity, the need for controls, and the need for limitations put 

in at the get-go is really important. I think, there are instances 

where there are members of the Foreign Relations Committee that 

have come up with various amendments to various AUMFs set in 

front of them limiting operationally what can be done in different 

theaters of war. But I think, kind of even more fundamentally, limiting the geography and limiting who the enemy is are particularly 

important. Going a little bit back to the question about the provision today, I think if Congress has not learned anything over the 

past couple decades other than that when it is a one-way ratchet 

wrench with turning any kind of authority over to the executive 

branch, if you provide discretion to the executive branch, you are 

not getting it back. 

The starting point for an Authorization for the Use of Military 

Force or a declaration of war or any kind of new weaponry ought 

to be controls imposed by Congress. If later on those controls needs 

to be loosened, then loosen them. But, the greater and the tighter 

control you put on from the start, the more likely it is that Congress is going to retain that authority. 

Senator PETERS. I am out of time, Mr. Chairman, but if anybody 

had a quick thought on that, I would entertain that. 

Judge NAPOLITANO. Fully agreed. 

Senator PETERS. Good. Thank you. 

Senator PAUL. Thank you, Senator Peters. 

It was mentioned earlier that our soldiers within the next year 

will actually have been born after 9/11 and have no memory of it. 

We have been at war that long. Even many in the audience here 

today are young enough that they may not remember 9/11. It is not 

to say it was not something profound, and we needed to respond. 

But we are still at war, and I think we have lost our mission. 
22 

I asked Secretary Pompeo when he was before us, is there a military solution to Afghanistan, and he frankly said no, and he is one 

who still wants to stay. My question is: If there is no military solution, why would we add more troops? I am reading Steven Coll’s 

book now, ‘‘Directorate S,’’ about Afghanistan and Pakistan, and in 

2010 the Obama Administration admitted there was no military solution. In the book there is a discussion, and it says unanimously 

everyone agreed there was no military solution in 2010. We have 

to wake up and do something. That is part of what this hearing 

is about. But it is also about the constitutionality of authorization 

to use force, a declaration of war. 

I think that it is important that we review these again. There is 

one, possibly two reasons why this is unconstitutional, and we will 

start there. One, I think it delegates authority that is congressional 

authority given by the Constitution to Congress to the President. 

Why do we not start with Judge Napolitano and Professor Turley? 

How is that unconstitutional? Is there a possibility that we can go 

to court? Is there evidence that we have ever had a delegation doctrine overturned where Congress delegated some of their authority 

they were not allowed to do? Judge Napolitano first. 

Judge NAPOLITANO. Professor Turley is the country’s expert on 

getting cases sent to court that seem impossible because it looks 

like there is no standing, but he manages to find it, so I will let 

him address that. But the Supreme Court has held countless times 

that just because the branch of government that is losing the power 

consents to that loss does not make it constitutional because the 

separation of powers doctrine was not written to preserve the prerogatives or the hegemony of the three branches but, rather, to preserve human liberty by keeping the branches at tension, Madison 

even said jealous of each other. 

The problem, of course, is getting the courts to examine this. 

There have been some examinations, but they are few and far between. Professor Turley is an expert on that because most of the 

time the court will say, particularly with respect to war—I am not 

talking about Congress saying to the FDA you can make all the 

regulations you want about toothpaste. We are talking about with 

respect to war, the courts are more likely than not to say that is 

a political question. If you do not like the war, elect a new President or elect a Congress that is more faithful to its oath to uphold 

the Constitution. 

But just because that power passes from legislative to executive 

with the consent of both does not make it constitutional. In fact, 

the core authorities of each branch may not be exchanged, mixed, 

or commingled with either of the other branches. If the court is 

clear on anything, it is clear on that. 

Senator PAUL. Professor Turley. 

Mr. TURLEY. Thank you very much. There is this strange anomaly which is largely a creation of the judiciary that exists today. 

Most people, when they learn civics, believe that if something is 

unconstitutional, then the courts have a chance to review it. The 

sense is that the checks and balances work in the tripartite system 

because no one can act alone. 

Unfortunately, that is not true because the courts have developed 

narrowing standing doctrines that I have long been a critic of. You 
23 

actually can have glaring unconstitutional acts where the court will 

not recognize anyone as having a right to raise them. 

For example, in the Libyan war case, I came forward with both 

Democratic and Republicans members who said, look, we take an 

oath, and that oath includes upholding the Constitution, which includes an obligation, a sacred one, to declare war. We were denied 

that right, and so we have standing. 

Senator PAUL. Is the standing issue a problem at every level, district court, appellate court, and at the Supreme Court? 

Mr. TURLEY. It is, and the court on that occasion said no. When 

I pressed the court, saying then we have here an immaculate violation of the Constitution, literally no one can stop an undeclared 

war, even though the Framers considered this one of the great violations they sought to avoid. 

Now, when I went back to the court, when I represented the 

House of Representatives as a body, there was a fierce level of litigation, but we won that standing battle. The court accepted that 

as a representative of one of the House, my clients would have 

standing. 

I really believe that—— 

Senator PAUL. Then did it go beyond the district court or—— 

Mr. TURLEY. It went to the court of appeals and eventually it ultimately proved moot because of the changes we—— 

Senator PAUL. You did not lose on standing. 

Mr. TURLEY. We did not. We won on standing, and that thankfully is still there. But I believe legislative standing would solve a 

lot of this problem if Members of Congress were recognized as having skin in the game. 

Senator PAUL. But it sounds like it is overwhelming within the 

Federal court structure that both precedent and opinion will not 

change unless all of a sudden the majority of the Supreme Court 

sort of set a new way on standing? 

Mr. TURLEY. That is not impossible. The fact is this is a creation 

of the courts, and it can be undone by the courts. But it is not 

working. 

Senator PAUL. In Hampton v. United States, they set forth, like 

a lot of things the Supreme Court does, and said you are not supposed to do something, well, you can do it if it is intelligible or reasonable, and we get all these extra doctrines added in, which I 

think basically dilute what you were not supposed to do once upon 

a time, according to the Constitution. But in that they said you 

cannot delegate your war-making authority, but you can give up 

some of it if you have an intelligible principle upon which to act. 

Have there been further decisions in that vein? Is that sort of a 

last standing precedent as far as this goes with war powers? Are 

there other courts cases that we can look to that are instructive in 

this? We will start with Professor Turley and then Judge 

Napolitano. 

Mr. TURLEY. Actually, I think there is some reason to be hopeful, 

particularly in the war powers area, but also more generally in 

terms of separation of powers. I had the honor of testifying in the 

Gorsuch confirmation hearing, and one of the things I said about 

Justice Gorsuch as a nominee is that he had a certain refreshing 

understanding of the separation of powers, and some people view 
24 

him as a textualist in that sense. But we really cannot change the 

center of gravity here and move it back toward the legislative 

branch, because right now we have a dangerous instability, and so 

far Madison—you will never hear me say this in a given day, but 

I will say it here. Madison may have been wrong. He was proven 

wrong by members of this institution when he said that ambition 

would fight ambition. He believed that you all would be just jealous 

over your inherent authority, you would not let anyone take it 

away. But this institution has really shattered that assumption. 

Senator PAUL. Certainly there is ambition. It is just misplaced. 

[Laughter.] 

Judge NAPOLITANO. Maybe Madison meant courage, because the 

Congress has really lacked the courage. Those of you who are here 

today have the courage to say to the executive, ‘‘You have to stop.’’ 

I mean, the most frequently cited, at least until recently, Justice 

in American history, Benjamin Cardozo once said, ‘‘Where there is 

a wrong there is a remedy,’’ except when the President wages war 

and there is nobody who can get into court to challenge him. Professor Turley is living proof of that; he has had some unique successes. Congress has to write the legislation, whether it is on 

standing or whether it is no President shall engage in any act of 

violence, whether by people in uniform or not, except in accordance 

with Article I. 

Senator PAUL. Right. It is easy for us to deflect and say, the 

court should allow standing and the court should fix this, when in 

reality we probably need to look in the mirror and aggressively use 

our ambition to take our power back. 

We have talked about the delegation. We are giving up authority 

that was constitutionally given to us. I think there is a slightly separate issue that goes to constitutionality as well, and that is, 

changing something that can only happen by a positive affirmative 

vote of a majority to something that can only be stopped by a twothirds vote of disapproval. I think is important to look at this, like 

on spending bills, Congress is supposed to spend bills. The President cannot spend any money unless a majority of us give him the 

money to spend. That is the way it goes. It has to be a majority. 

It would be like us saying to the President, ‘‘You can spend all of 

the money, and the only way we can stop you from spending the 

money would be by a two-thirds vote.’’ Who in the world would 

think that that was possibly constitutional? 

But I guess my question is this: Would that be a separate constitutional issue from the idea of delegation of authority? Because 

what we are actually doing is switching something. The Constitution has certain things that are done by majority vote affirmatively, 

actually, almost everything is affirmative, but then there are some 

things that are supermajority. Are we not just changing the Constitution? It is unconstitutional because there was a change. It is 

not necessarily a delegation but actually a change in the mechanism of the way the Constitution works. Professor Turley. 

Mr. TURLEY. It is certainly a change. The Constitution is quite 

clear. You need the authority of Congress to go to war. This proposal gives you a post hoc measure, which we all understand will 

never occur. It is going to be very hard to get a veto-proof majority 

to take the name of an accused terrorist group or nation off that 
25 

list. It is going to be virtually impossible to do that, but it does not 

even matter how you feel about the logistics or the likelihood. It 

is in direct contradiction of the Constitution, and it is a bizarre notion. As you said, if my two boys here came to me and said, ‘‘Look, 

instead of my asking for the credit card, just give me your credit 

card and you can stop me when you see expenses get too high.’’ 

Judge NAPOLITANO. Is that not what happens? [Laughter.] 

Mr. TURLEY. I think we would look at them and go, ‘‘Well, that 

would not be a really smart idea.’’ 

What is weird about all this is that the Framers were right, that 

is, everything we are talking about right now proves that they were 

right. They were right about war. They were right about appropriations. They really did know about human nature in that sense. 

Judge NAPOLITANO. Look, the imposition of the supermajority is 

profoundly unconstitutional. The question is getting a court to declare it as such, which is nearly impossible. 

Senator PAUL. Or us grabbing it back. I have another question, 

but I have gone over time, and I wanted to see if Senator Peters 

had any—are you good? 

The last question I wanted to bring us was something that Mr. 

Anders brought up, and I think this is an important point I had 

not thought of until I read his statement. One, it is a real problem 

that associated forces are sort of out there and the President will 

define what they are in the future and then we can only stop him 

with a two-thirds vote. But it is also an interesting question that 

you bring up that associated forces are not defined to be foreign enemies necessarily. It could be a domestic group that you do not like 

that could now be associated forces. You could see how, you really 

can imagine groups—we will not go into all the imaginings of 

which groups, but it could be domestic groups you could say are associated forces. Your point is that the indefinite detention of citizens that has been legalized through the previous defense authorizations could then be applied to vast groups of Americans. 

Could you make that a little more clear for us and re-explain exactly what you mean by that? 

Mr. ANDERS. Yes. This is a problem with the Corker-Kaine 

AUMF. It was a problem with the NDAA. It was a problem with 

the NDAA detention provisions. It was a problem that the Senate 

by vote refused to fix, despite the votes of people sitting on the dais 

who voted to protect American citizens there. But there is no prohibition in the Corker-Kaine AUMF from designating an American 

group, American citizens, or an American individual from being an 

associated force that the President could decide on his or her own 

is an enemy of the United States. 

Similarly, there is no prohibition in the Corker-Kaine AUMF 

from designating the United States as a place where military force 

can be used. 

Now, we take it for granted because of Posse Comitatus, which 

is probably more limited than the kind of legend around it makes 

it seem. 

Senator PAUL. Posse Comitatus limits Federal officers from—or 

the Army from operating domestically? 

Mr. ANDERS. That is right, for law enforcement purposes. 
26 

Senator PAUL. I guess one of the questions would be: Who is the 

Army and who is intelligence officers or homeland security police? 

Are they the Army? Are they limited by Posse Comitatus? 

Mr. ANDERS. That is right. But in this instance, there is nothing 

in the Corker-Kaine AUMF that says that the United States cannot basically become a battlefield. This is something that came up 

during the debate around the detention provisions in 2011 with 

Senator Graham going to the Senate floor saying that the United 

States can be a battlefield. 

This is a real problem. There have been United States citizens 

that have been droned accidentally, droned on purpose. As you 

know, Mr. Chairman, there have been United States citizens that 

have been put in indefinite military detention. These are not theoretical problems. 

Now this is one aspect, of course, of far bigger problems with the 

Corker-Kaine AUMF, but this is one that I think, especially as we 

noticed there was kind of tucked in there with this innocuous 

name, just saying that these provisions of the NDAA are getting 

amended by adding the name of the new AUMF into it. It is a 

broad new authority that would be handed over to the military. 

Senator PAUL. I know Judge Napolitano has a plane to catch. If 

you want to escape, we are going to let you escape. But I know 

Senator Sanders had a few more minutes of questions. I am going 

to leave that up to you whether you can stay or go. 

Senator SANDERS. Very briefly, I apologize but I had a pre-scheduled meeting that I had to be in, and thank you very much for your 

excellent testimony. 

Let me ask you this question, and you may well have gone over 

it when I was not in the room. When we talk about giving the 

President today virtually complete authority, if we read in the 

paper that the President decided to bomb someplace tomorrow, nobody would blink an eye, right? That is what we have seen for decades. You talk about the precedential impact of allowing Presidents 

to do this. What does that mean, above and beyond wars, above 

and beyond abrogating the Constitution of the United States, what 

does it mean to our quality of life in this country? 

Judge NAPOLITANO. Oh, I think it is the fact that we are having 

this kind of a conversation about whether the President could kill 

Americans in America or whether the President can engage in perpetual war, no matter how noble he believes that cause is, speaks 

volumes about how low we have sunk with respect to culture, morality, and fidelity to first principles in the Constitution, Senator 

Sanders. 

Senator SANDERS. OK. 

Mr. TURLEY. I think that there is really a twofold problem here. 

One is that, Benjamin Franklin, as you, I am sure, recall, at the 

convention was asked by Mrs. Powell, ‘‘What was it that you have 

wrought? What have you created?’’ 

Senator SANDERS. Is that really true, by the way? Did he really 

say that? 

Mr. TURLEY. That is a fact that I do not want to check. 

Senator SANDERS. Or is that fake news? I do not know. 

Judge NAPOLITANO. Only Jonathan believes that actually happened. 
27 

Mr. TURLEY. He said, ‘‘It is a Republic if you can keep it.’’ That 

is the problem with being in perpetual wall, is that my boys have 

never lived in a country that has not been at war. Both of them 

have literally never spent a day of their lives when we have not 

been at war. It becomes a natural State. The example of that is one 

of the most chilling things I saw in my lifetime was when Eric 

Holder went to my alma mater law school to announce the kill policy of the Obama Administration, and said that the Administration 

was now asserting the right to kill an American citizen on the 

President’s sole authority, without charge, without conviction, and 

that he believed that authority was inherent in Article II. Instead 

of having any objections, a roomful of leading law professors and 

judges applauded an Attorney General saying, ‘‘The President has 

the inherent right to kill any of you.’’ 

The reason this is dangerous is take a look at the OLC opinions 

that we talked about recently. In the OLC opinion, they argued the 

President had unilateral authority to go to war without the approval of Congress because of ‘‘the historical gloss’’ of past wars. 

What has happened is that this body, because it has acquiesced for 

so long, that is now being used as an interpretive tool—— 

Senator SANDERS. That is the precedent that they are using. 

Mr. TURLEY. That is right. 

Judge NAPOLITANO. Yes. 

Mr. ANDERS. Senator Sanders, I was really struck by something 

you said earlier, which was to talk about kind of what this is like, 

what this is all about in reality as opposed to theory. 

Senator SANDERS. Right. 

Mr. ANDERS. I do think that one of the dynamics around this discussion about putting together a new AUMF is that this has become kind of a lawyer’s game about law, right? It is like one big 

logic game. It is telling here, although I do not want to be off this 

panel, right? The three lawyers here on this panel, the one, literally one hearing in front of the Senate Foreign Relations Committee was two lawyers there. The earlier versions of this, which 

came out of some of the Lawfare blog writers and thinkers there, 

there were panels both in the House and the Senate earlier, there 

were all lawyers on those. A lot of it just gets tossed around as we 

have not done this in 17 years, so how do we rearrange the words 

on the page? 

Senator SANDERS. Right. 

Mr. ANDERS. One of the things that we have been trying to bring 

home to people in talking about the Corker-Kaine AUMF is without even going to new groups, it has Al-Shabaab and it has Somalia, right? I have a 16-year-old, too. Do I want my 16-year-old going 

to war against Al-Shabaab in Somalia? My son probably cannot 

find Somalia on a map, and probably very few people even in this 

room know who Al-Shabaab is. But this basically would be Congress. Now, that is not even like turning—what the President 

comes up with. 

Senator SANDERS. Right. 

Mr. ANDERS. This would be Congress saying the United States 

can go to war against Al-Shabaab in Somalia. That does not mean 

just sending a drone there, here and there. That means if we want 

to—if the President wants to send 200,000 troops there and go in 
28 

all-out house-to-house fighting, as we did in Afghanistan and Iraq, 

we could do that. 

Senator SANDERS. All right. My time is expiring. Senator Paul, 

thank you very much for calling this hearing. I thought I would 

miss some of it, but what I heard was just really very important, 

and I want to thank all three of you for your efforts. Thanks for 

being here and thanks for all you are doing. 

Senator PAUL. To put a human face on this, you asked the families of the four soldiers who died in Mali chasing a herdsman, 

should we have discussed whether we needed to chase that herdsman, what that herdsman’s threat to our national security was? 

What kind of war is going on in Mali? We have had no hearings 

on a war in Mali. In fact, a prominent member of the Senate 

Armed Services Committee said, ‘‘Mali? I did not know we had 

1,000 soldiers there.’’ That is very worrisome that the people who 

are supposed to be informed, that are supposed to be debating 

whether our sons and daughters die in foreign wars are not even 

debating it at all. We have completely abdicated it. There is a bipartisan group of us who would like to grab that back, but I can 

tell you, we are in the minority. 

We will finish with this last question. The majority of the Senate—and I think Senator Sanders would agree with me—actually 

do believe in unlimited Article II authority on both sides of the 

aisle, maybe more so on my side of the aisle, but even some on the 

other side of the aisle do believe that there is unlimited Article II 

authority. In fact, I have heard this said many times, the only 

check we have is the power of the purse. I say, ‘‘Well, that is one 

check, but that is not the’’—we have a check on the initiation of 

war and then on the continuation through spending. But it is virtually impossible to stop funding when a war is over there, because 

people say, ‘‘Well, you are not going to fund our young men and 

women. You are not going to give them the arms to defend themselves. How can you do this?’’ 

Even in Vietnam, which was so incredibly unpopular, I think 

there was finally a funding vote in committee. I think Senator 

Leahy was there, he tells the story about being there and voting, 

it was 1974 or almost 1975, by the time we had the courage in one 

committee to vote to stop funding. 

My question, though, is: Is there any historical evidence that our 

Founders believed in unlimited Article II authority or that the declaration of war is just now an anachronism that our Founding Fathers did not find to be important? We will start with Judge 

Napolitano and work our way down. 

Judge NAPOLITANO. That is a short answer. There is no evidence 

that the Founding Fathers believed in unlimited Article II authority, and there is an abundance of evidence, which Professor Turley 

characterized in his opening statement, that they did not. 

Mr. TURLEY. Yes, there are plenty of systems that give that type 

of authority. It just does not happen to be ours. The Framers were 

quite clear to the contrary. This is one of the few areas where there 

was not much of a debate. In one case there was a single person 

who was suggesting this view, that a President should have this 

authority, and he did not get a second on his motion. 
29 

My preference is that if you want to gut Article I, Section 8, do 

it, but do not blame the Framers, and do not pretend that it is in 

compliance with the Constitution. 

Mr. ANDERS. Madison has gotten a lot of attention today, so just 

to put out Thomas Jefferson, give him a little air time—— 

He wrote, ‘‘An allocation of war powers to Congress provides an 

effectual check to the dog of war by transferring the power of letting him loose from the executive to the legislative body.’’ 

Senator PAUL. I think this has been a great hearing. Thanks, everyone, for coming. If we are still at war 17 years from now, if 

Kaine-Corker passes and there are no limits on war, let it be 

known that there were at least some of us who warned. Thank you. 

Mr. ANDERS. Thank you. 

Mr. TURLEY. Thank you. 

Judge NAPOLITANO. Thank you, Senator. 

[Whereupon, at 4:08 p.m., the Subcommittee was adjourned.] 

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