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| <title> - RECLAIMING CONGRESSIONAL WAR POWERS</title> | |
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| [House Hearing, 117 Congress] | |
| [From the U.S. Government Publishing Office] | |
| RECLAIMING CONGRESSIONAL WAR | |
| POWERS | |
| ======================================================================= | |
| HEARING | |
| BEFORE THE | |
| COMMITTEE ON FOREIGN AFFAIRS | |
| HOUSE OF REPRESENTATIVES | |
| ONE HUNDRED SEVENTEENTH CONGRESS | |
| FIRST SESSION | |
| __________ | |
| MARCH 23, 2021 | |
| __________ | |
| Serial No. 117-24 | |
| __________ | |
| Printed for the use of the Committee on Foreign Affairs | |
| [GRAPHIC NOT AVAILABLE IN TIFF FORMAT] | |
| Available: http://www.foreignaffairs.house.gov/, http:// | |
| docs.house.gov, | |
| or http://www.govinfo.gov | |
| __________ | |
| U.S. GOVERNMENT PUBLISHING OFFICE | |
| 43-796PDF WASHINGTON : 2023 | |
| ----------------------------------------------------------------------------------- | |
| COMMITTEE ON FOREIGN AFFAIRS | |
| GREGORY W. MEEKS, New York, Chairman | |
| BRAD SHERMAN, California MICHAEL T. McCAUL, Texas, Ranking | |
| ALBIO SIRES, New Jersey Member | |
| GERALD E. CONNOLLY, Virginia CHRISTOPHER H. SMITH, New Jersey | |
| THEODORE E. DEUTCH, Florida STEVE CHABOT, Ohio | |
| KAREN BASS, California SCOTT PERRY, Pennsylvania | |
| WILLIAM KEATING, Massachusetts DARRELL ISSA, California | |
| DAVID CICILLINE, Rhode Island ADAM KINZINGER, Illinois | |
| AMI BERA, California LEE ZELDIN, New York | |
| JOAQUIN CASTRO, Texas ANN WAGNER, Missouri | |
| DINA TITUS, Nevada BRIAN MAST, Florida | |
| TED LIEU, California BRIAN FITZPATRICK, Pennsylvania | |
| SUSAN WILD, Pennsylvania KEN BUCK, Colorado | |
| DEAN PHILLIPS, Minnesota TIM BURCHETT, Tennessee | |
| ILHAN OMAR, Minnesota MARK GREEN, Tennessee | |
| COLIN ALLRED, Texas ANDY BARR, Kentucky | |
| ANDY LEVIN, Michigan GREG STEUBE, Florida | |
| ABIGAIL SPANBERGER, Virginia DAN MEUSER, Pennsylvania | |
| CHRISSY HOULAHAN, Pennsylvania AUGUST PFLUGER, Texas | |
| TOM MALINOWSKI, New Jersey PETER MEIJER, Michigan | |
| ANDY KIM, New Jersey NICOLE MALLIOTAKIS, New York | |
| SARA JACOBS, California RONNY JACKSON, Texas | |
| KATHY MANNING, North Carolina YOUNG KIM, California | |
| JIM COSTA, California MARIA ELVIRA SALAZAR, Florida | |
| JUAN VARGAS, California JOE WILSON, South Carolina | |
| VICENTE GONZALEZ, Texas | |
| BRAD SCHNEIDER, Illinois | |
| Sophia Lafargue, Staff Director | |
| Brendan Shields, Republican Staff Director | |
| C O N T E N T S | |
| ---------- | |
| Page | |
| WITNESSES | |
| Hathaway, Oona A., Professor of Law, Yale Law School............. 7 | |
| Bauer, Bob, Professor of Practice and Distinguished Scholar in | |
| Residence, New York University School of Law................... 13 | |
| Goldsmith, Jack, Learned Hand Professor, Harvard Law School...... 17 | |
| INFORMATION FOR THE RECORD | |
| Washington Post article.......................................... 56 | |
| APPENDIX | |
| Hearing Notice................................................... 79 | |
| Hearing Minutes.................................................. 80 | |
| Hearing Attendance............................................... 81 | |
| STATEMENT FOR THE RECORD | |
| Statement for the record from Representative Connolly............ 82 | |
| RESPONSES TO QUESTIONS SUBMITTED FOR THE RECORD | |
| Responsesto questions submitted for the record................... 84 | |
| RECLAIMING CONGRESSIONAL WAR POWERS | |
| Tuesday, March 23, 2021 | |
| House of Representatives, | |
| Committee on Foreign Affairs, | |
| Washington, DC. | |
| The committee met, pursuant to notice, at 1:15 p.m., via | |
| Webex, Hon. Gregory Meeks (chairman of the committee) | |
| presiding. | |
| Chairman Meeks [presiding]. The Committee on Foreign | |
| Affairs will come to order. | |
| Without objection, the chair is authorized to declare a | |
| recess of the committee at any point. | |
| And all members will have 5 days to submit statements, | |
| extraneous material, and questions for the record, subject to | |
| the length limitations in the rules. To insert something into | |
| the record, please have your staff email the previously | |
| mentioned address or contact full committee staff. | |
| As a reminder to members, please keep your video function | |
| on at all times, even when you are not recognized by the chair. | |
| Members are responsible for muting and unmuting themselves, and | |
| please remember to mute yourself after you finish speaking. | |
| Consistent with House rules, staff will only mute members as | |
| appropriate when they are not under recognition to eliminate | |
| background noise. | |
| I see that we have a quorum, and I now recognize myself for | |
| opening remarks. | |
| Pursuant to notice, we meet today to hear from | |
| distinguished witnesses about existing AUMFs and the reform of | |
| the War Powers Resolution, and the problem of constitutional | |
| balance between the executive branch and Congress on questions | |
| of war and peace. | |
| On September the 11th, 2001, Al Qaeda terrorists flew two | |
| airplanes into the World Trade Center in my home city of New | |
| York. Another aircraft hit the Pentagon. A fourth plane was | |
| likely headed to the United States Capitol, and it would have | |
| but for the brave actions of the passengers on United 93. | |
| Thousands were murdered that day. | |
| Congress passed the 2001 authorization of the use of | |
| military force just 3 days after 9/11. It was meant to target | |
| the terrorists who planned that attack and the entities that | |
| had protected them. That intent was very clear to me at that | |
| time. | |
| Over 20 years, successive administrations have interpreted | |
| and reinterpreted the text of that resolution to use it in new | |
| countries against an expanding list of loosely connected | |
| groups. This process has all but cut Congress out of its | |
| fundamental responsibility to decide issues of war and peace. | |
| Many of our servicemembers fighting these wars today | |
| weren't even born when Congress passed the 2001 AUMF. Yet, | |
| Congress still has not gone back to update that authority. | |
| Congress needs to step up and do the hard work of reforming | |
| this outdated law. | |
| Congress has also yet to repeal AUMFs that no longer serve | |
| a purpose. The 2002 Iraq War AUMF, for example, is not needed | |
| for any current military operation, which is why our committee | |
| will take up legislation this week to repeal it. | |
| Without objection, I would like to enter into the record a | |
| letter from Representative Barbara Lee, who has been a stalwart | |
| champion of congressional war powers and authored the measure | |
| we will be considering this week. | |
| [The information referred to follows:] | |
| ********* COMMITTEE INSERT ********** | |
| Chairman Meeks. And without objection, I would also like to | |
| enter into the record a letter from a coalition of 18 advocacy | |
| organizations supporting a stronger role for Congress in | |
| national security decisions. | |
| [The information referred to follows:] | |
| ********* COMMITTEE INSERT ********** | |
| Chairman Meeks. The 2002 AUMF was an act to authorize force | |
| against Saddam Hussein, not ISIS or Al Qaeda or Iran. Leaving | |
| an outdated AUMF on the books does not make America any safer. | |
| It just opens the door for future Presidents to use force | |
| without working through Congress. | |
| Many Presidents are guilty of this, but in the most recent | |
| example just last year, the Trump Administration developed a | |
| novel legal theory to claim the 2002 AUMF authorized the | |
| killing of Qasem Soleimani, the leader of Iran's Quds Force. | |
| Anyone who reads the text of the 2002 AUMF will know that it | |
| does not authorize war against Iran or strikes on Iranian | |
| officials. | |
| Beyond considering current AUMFs, this hearing is an | |
| opportunity to examine how Congress can restore an appropriate | |
| balance with the executive branch through reform to the Wars | |
| Power Resolution itself. The War Powers Resolution was passed | |
| in the wake of the Vietnam War as an effort to reassert | |
| Congress's role. Unfortunately, the executive branch has | |
| chipped away at the law, reinterpreting its key terms to limit | |
| congressional authority and ignoring other requirements | |
| altogether. | |
| Reforming the War Powers Resolution will not be easy. It | |
| will require a carefully considered balancing between | |
| preserving necessary Presidential authorities without | |
| delegating away Congress's constitutional responsibility. | |
| There is no question the Commander in Chief directs our | |
| Armed Forces and prosecutes our wars. The President has the | |
| legal authority in Article II of the Constitution to defend our | |
| country. That is not in question, but the President cannot take | |
| our Nation to war without authorization from Congress. | |
| For decades now, Congress has not fully met this burden. It | |
| was President Obama who last sent Congress a draft AUMF that | |
| would have limited enduring ground operations and require | |
| regular reauthorizations. In failing to reach a compromise and | |
| bring a new AUMF for a vote, Congress once again abdicated its | |
| constitutional responsibility. | |
| Thus, the time to reverse this trend is right now. We | |
| cannot shy away from the difficult task ahead. We must repeal | |
| authority that is no longer needed, update authorities that | |
| still serve an important national security purpose, and develop | |
| a clearer war powers framework that reasserts Congress's proper | |
| constitutional role. | |
| The bipartisan panel before us today compromises the | |
| Nation's foremost experts on these challenging issues, and I | |
| look forward to hearing their thoughts and their responses to | |
| our inquiries. | |
| Our hearing builds on the hearing that Chairman McGovern | |
| and Ranking Member Cole of the Rules Committee held this | |
| morning to consider war powers resolutions reform. Progress on | |
| this issue will require close collaboration between our | |
| committees, and I would like to thank them for their | |
| partnership. These are tough matters to tackle, but we signed | |
| up for that job when we ran and were elected to Congress. | |
| I will now recognize the ranking member, Representative | |
| McCaul, for his remarks. | |
| Mr. Cicilline. Representative McCaul, you are on mute. | |
| Mr. McCaul. Mr. Chairman. | |
| Chairman Meeks. Now we hear you. | |
| Mr. McCaul. OK. Thank you. | |
| I want to thank you for holding today's much-needed | |
| discussion, and I welcome the debate on rebalancing war powers | |
| between the executive and the legislative branches. | |
| Congress exercises no power more solemn than committing our | |
| Nation to war, as you said, matters of war and peace, and that | |
| is within this committee's jurisdiction. This year marks 20 | |
| years since 9/11. It is past time to review and reflect on the | |
| decisions made in the aftermath of that dark day. | |
| Because many on our side of the aisle agree that it is time | |
| to reclaim our Article I responsibilities, I think we have an | |
| opportunity, Mr. Chairman, to make bipartisan progress toward | |
| real reform. In other words, I think we have the same goal | |
| here. We may have just a little bit different means of getting | |
| about it. | |
| We should also avoid dismissive talk of forever wars | |
| because it implies that our ongoing counterterrorism | |
| engagements are illegal and unnecessary. When I was chairman of | |
| the Homeland Security Committee, I was briefed regularly about | |
| the ongoing threats aimed at Americans. | |
| I believe our counterterrorism efforts over the past 20 | |
| years have safeguarded us from many terror attacks in this | |
| country. And with respect to General Soleimani, I believe the | |
| world is much safer and far better off without him. | |
| The bipartisan 9/11 Commission, led by former Democratic | |
| chair of this committee, Lee Hamilton, made clear that the | |
| fight against radical Islamist terrorism would be a, quote, | |
| ``generational challenge . . . likely to be measured in | |
| decades, not years.'' End of quote. | |
| During that time, Congress has held hundreds of briefings | |
| and hearings. We have continued to appropriate funds for those | |
| engagements, and we have not directed the withdrawal of our | |
| troops. | |
| But wars should not be on autopilot, either. Congress owes | |
| our troops a clear commitment to the missions we are asking | |
| them to undertake. And for these reasons, I have repeatedly | |
| stated, Mr. Chairman, my desire for an updated authorization of | |
| military force, or AUMF, scoped to the current terrorist | |
| threats to replace the 2001 and 2002 AUMFs that are still on | |
| the books. And think about it, some people fighting these wars | |
| weren't even born on 9/11. | |
| It is also imperative, I believe, that we repeal and | |
| replace these AUMFs simultaneously to ensure that there is no | |
| lapse in critical counterterrorism authorities. This will avoid | |
| sending a message of premature U.S. disengagement that could | |
| destabilize Iraq, embolden Iran, and strengthen Al Qaeda and | |
| ISIS. Rushing a standalone repeal of an AUMF used by the last | |
| three administrations only 2 days after beginning this | |
| conversation is not a constructive way to consider this | |
| important national security authority. | |
| A serious effort, in my judgment, requires consulting with | |
| the government of Iraq and regional and coalition partners. It | |
| involves hearing from the Biden Administration itself and the | |
| Departments of State and Defense. It also involves getting our | |
| members, especially the new ones, briefed by the intelligence | |
| community on the current threats. We have also had many members | |
| who have served in combat whose voices will be valuable to our | |
| deliberations. | |
| So, with that said, Mr. Chairman, I look forward to our | |
| panelists' thoughts on what an updated AUMF would look like, | |
| and I would also appreciate their views on the War Powers | |
| Resolution, which has never forced the withdrawal of U.S. | |
| forces over a Presidential objection. | |
| Mr. Chairman, today's issues are weighty, and they are | |
| complex, and should not be partisan if they are approached with | |
| the gravity and diligence that they deserve. So I join you in | |
| welcoming our distinguished witnesses. I look forward to the | |
| testimony, and I yield back. | |
| Chairman Meeks. Thank you, Representative McCaul. | |
| I am honored to have our three distinguished witnesses | |
| joining us for today's hearing. | |
| Oona Hathaway is a Gerard C. and Bernice Latrobe Smith | |
| Professor of International Law at Yale Law School, and holds | |
| several other prestigious positions at that university. She has | |
| been a member of the Advisory Committee on International Law | |
| for the Department of State Legal Advisory since 2005, and has | |
| served as Special Counsel to the General Counsel at the United | |
| States Department of Defense. | |
| Our next witness, Bob Bauer, is a Professor of Practice and | |
| Distinguished Scholar in Residence at the New York University | |
| School of Law. Professor Bauer served as White House Counsel to | |
| President Obama from 2009 to 2011. | |
| Our third witness, Mr. Jack Goldsmith, is a Learned Hand | |
| Professor of Law at Harvard University. Professor Goldsmith | |
| served as Assistant Attorney General in the Office of Legal | |
| Counsel from October 2003 through July 2004. Before that, he | |
| served as Special Counsel to the General Counsel at the | |
| Department of Defense. | |
| For witnesses, you have 5 minutes to deliver your opening | |
| remarks. I will gently tap my gavel when you have 30 seconds | |
| left, so you may conclude. | |
| Without objection, your prepared written statements will be | |
| made part of the record. | |
| I now yield 5 minutes for purposes of her testimony to Ms. | |
| Hathaway. | |
| STATEMENT OF OONA A. HATHAWAY, PROFESSOR OF LAW, YALE LAW | |
| SCHOOL | |
| Mr. Hathaway. Chairman Meeks, Ranking Member McCaul, | |
| members of the committee, thank you so much for inviting me to | |
| speak. | |
| I will address three matters today. First, I will explain | |
| why I think it is wise to repeal the 1991 and 2002 | |
| Authorizations for the Use of Military Force. Second, I will | |
| outline what I see as the key priorities in the effort to | |
| repeal and replace the 2001 Authorization for Use of Military | |
| Force. And third, I will speak about top priorities for war | |
| powers reform more generally. | |
| So, first, I begin with the 1991 and 2002 AUMF repeal. The | |
| 1991 AUMF permitted the President to use military force | |
| pursuant to U.N. Security Council Resolution 678, a resolution | |
| that required the Iraq, then led by Saddam Hussein, to withdraw | |
| from Kuwait no later than January 15, 1991. The 2002 AUMF was | |
| enacted primarily in response to fears that Saddam Hussein's | |
| Iraq possessed weapons of mass destruction that posed a direct | |
| threat to the United States and its allies. | |
| The purposes of these authorities have long ago been met. | |
| The government of Iraq was expelled from Kuwait in 1991. The | |
| U.N. resolutions referred to in the AUMFs have long since been | |
| expired. And Iraq does not pose a threat to the United States | |
| or its allies. Although it is true that new terrorist threats | |
| emerged in Iraq after the war, they are more properly addressed | |
| under the authority Congress provided in the 2001 AUMF. So, | |
| leaving the 1991 and 2002 AUMFs on the books simply leaves the | |
| door open to their misuse without giving Presidents any | |
| additional legitimate basis for military action. | |
| Next, I turn to the 2001 AUMF. There has long been | |
| bipartisan agreement that the 2001 AUMF is outdated. The devil | |
| has been in the details of the replacement. Here, I will | |
| outline three key elements that reflect a fairly broad | |
| consensus as to what should be included in a replacement. | |
| First, a new AUMF must include a reauthorization | |
| requirement. If we have learned anything in the last two | |
| decades, it is that authorizations without a requirement for | |
| continued congressional engagement become quickly outdated and | |
| take on a life of their own. Congress must engage in the | |
| process of defining our military operations abroad. Indeed, the | |
| Constitution envisions such a requirement. Article I of the | |
| Constitution forbids Congress from supporting armies with any | |
| appropriation of money for a longer term than 2 years. And this | |
| was meant to ensure that every Member of Congress at some time | |
| during his or her term in office had the opportunity to make a | |
| decision about whether to continue any ongoing military | |
| efforts. | |
| Alexander Hamilton explained in the Federalist Papers that | |
| ``The legislature of the United States will be obliged, by this | |
| provision, once at least in every 2 years, to deliberate upon | |
| the propriety of keeping a military force on foot; . . . to | |
| declare their sense of the matter, by a formal vote in the face | |
| of their constituents.'' | |
| The logic behind this principle applies not only to | |
| appropriations, but to AUMFs as well. A 2-year reauthorization | |
| requirement would reaffirm this constitutional requirement and | |
| ensure that every Member of Congress has an opportunity to vote | |
| to reauthorize our military efforts. | |
| Second, a new AUMF should define the enemy. The current | |
| practice of deferring to the executive branch to determine | |
| which groups are, quote, ``associated forces'' of Al Qaeda cuts | |
| Congress out of its constitutional role. While that may have | |
| sense in the early days after the 9/11 attacks, it no longer | |
| does. Congress should be directly engaged in deciding when and | |
| with whom we are at war. And it should make clear that the | |
| concept of co-belligerency should not be used to expand the | |
| footprint of the war without seeking specific authority from | |
| Congress. | |
| Third, a new AUMF should include clear reporting | |
| requirements to the appropriate committees, including the House | |
| Foreign Affairs Committee, about the progress of military | |
| operations. The expectation should be that the wars will not be | |
| endless. There must be clear, achievable objectives, and | |
| Congress should be regularly apprised of progress toward them. | |
| Last, I want to say a few words about war powers reform. | |
| Now, war powers reform is incredibly complex, and I cannot | |
| cover it comprehensively here, but I will focus on what I | |
| consider to be some of the top priorities. | |
| First and foremost, it is essential to define the term | |
| ``hostilities.'' One of the fateful decisions made by the | |
| authors of the War Powers Resolution was to tie several | |
| requirements to ``hostilities,'' but then fail to define that | |
| term. That has left it open to wildly differing interpretations | |
| since. If Congress wants to make the resolution effective, it | |
| needs to define hostilities in the legislation. | |
| Second, the resolution must be much more effectively | |
| enforced. The most effective tool Congress possesses is the | |
| power of the purse; that is, the power to terminate funding. | |
| Right now, when the President acts, Congress has very little | |
| recourse. To avoid this, Congress should make clear that the | |
| President is prohibited from using any funds for any activity | |
| by United States forces that is inconsistent with the War | |
| Powers Resolution. That would give the resolution bite. | |
| And, third, there should be a better mechanism for | |
| effectively challenging an interpretation of the revised | |
| resolution by the executive branch. For too long, the executive | |
| branch has held a virtual monopoly on legal interpretations in | |
| the war powers space, and a revised War Powers Resolution | |
| should make clear that there is recourse to the courts. | |
| Thank you again for giving me this opportunity to speak | |
| with you today, and I look forward to your questions. | |
| [The prepared statement of Ms. Hathaway follows:] | |
| [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] | |
| Chairman Meeks. Thank you. | |
| I now recognize Mr. Bauer for 5 minutes. | |
| STATEMENT OF BOB BAUER, PROFESSOR OF PRACTICE AND DISTINGUISHED | |
| SCHOLAR IN RESIDENCE, NEW YORK UNIVERSITY SCHOOL OF LAW | |
| Mr. Bauer. Thank you, Mr. Chair, Ranking Member, and | |
| members of the committee, for this opportunity to speak to | |
| these significant issues. | |
| Professor Goldsmith and I, in our book ``After Trump,'' | |
| have called for a range of reforms: the updating of the 2001 | |
| AUMF, the repeal of the 2002 AUMF, and significant amendment of | |
| the War Powers Resolution. But we have also called--and I would | |
| like to focus today in my brief remarks here--on the executive | |
| branch lawmaking process. And we believe that Congress should | |
| press the executive to withdraw very broad and ill-founded OLC | |
| opinions on the question of anticipatory self-defense that give | |
| the President, we think, dangerously expansive authority. | |
| Now, I approach this with some humility. I am a former | |
| executive branch lawyer, and all executive branch lawyers do do | |
| what they can to provide good-faith, reasonable interpretations | |
| of the law that will afford the President flexibility and | |
| discretion in national security matters. And that has led to | |
| controversy in the administrations that I have served and in | |
| all others that I know of. | |
| But Presidents, nonetheless, I think are accountable for | |
| the law that they make and that they espouse publicly and that | |
| they act on. And in the area that we are addressing today, I | |
| think it is a critical companion to what Congress would do with | |
| war powers reform to hold the President accountable for | |
| opinions like those in 2001 and 2002, and to seek to have them | |
| withdrawn; and to engage, frankly, on the same basis with other | |
| lawmaking in the war powers area that Congress deems to be | |
| inappropriate, ill-founded, and potentially dangerous. | |
| I just mention very briefly, in the 2001 opinion, one of | |
| the two that we discuss and urge the withdrawal of, language to | |
| this effect: that Congress can place no ``limits on the | |
| President's determination as to any terrorist threat, the | |
| amount of military force to be used in response, or the method, | |
| timing, and nature of the response.'' That is a sweeping | |
| statement of Presidential authority really unbounded in | |
| application. | |
| And as we point out in our book, this is dicta. Congress | |
| had already provided the necessary authorization for what the | |
| executive needs to do to defend the country. And yet, | |
| nonetheless, the executive reached for more authority on a | |
| reasoning like what I just read. | |
| Furthermore, in discussing the interests on which | |
| Presidents could unilaterally act, the Office of Legal Counsel, | |
| in those opinions, and in subsequent opinions, have used | |
| extremely broad definitions of what the national interest is on | |
| which the unilateral action could be taken. References have | |
| been made to important interests or just interests or a variety | |
| of interests. | |
| And in distinguishing between what the President can do in | |
| the exercise of an unilateral Article II authority, and what | |
| the President should not be able to do and infringe on | |
| Congress' war-making powers, the language that these OLC | |
| opinions have used--and we go to 2001 and 2002 as, I think, the | |
| exemplars and the most serious cases--the language that has | |
| been used simply affords the President too much room. | |
| I will not go into great detail on that. I am happy to | |
| discuss it in the Q and A. But I do think that it is | |
| important--and I want to emphasize this for my part just in | |
| these brief comments--that, as hard as it is for Congress to | |
| push the executive branch on these issues, it can do more, and | |
| that is an important part of the effort, it seems to me, to | |
| achieve what you refer to, Mr. Chair, as the carefully | |
| considered balance of authority between Congress and the | |
| executive in war-making. | |
| And so, with those comments, I will conclude here and look | |
| forward to answering your questions. Thank you very much. | |
| [The prepared statement of Mr. Bauer follows:] | |
| [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] | |
| Chairman Meeks. I will recognize Mr. Goldsmith for 5 | |
| minutes. | |
| STATEMENT OF JACK GOLDSMITH, LEARNED HAND PROFESSOR, HARVARD | |
| LAW SCHOOL | |
| Mr. Goldsmith. Thank you, Chairman Meeks, Ranking Member | |
| McCaul, members of the committee, for this opportunity to | |
| testify. | |
| The hearing is entitled, ``Reclaiming congressional War | |
| Powers.'' As I explain in my testimony, congressional war | |
| powers need reclaiming along three important dimensions along | |
| which they have been lost. | |
| First, while Congress has stood silent over the last few | |
| decades, and going back further in some senses, the President | |
| has asserted basically limitless power under Article II to use | |
| force whenever he sees fit. Article II war powers are no longer | |
| remotely tied to self-defense, which was the primary | |
| justification at the founding for unilateral Presidential war | |
| powers. They are tied, rather, to a very vague phrase called | |
| ``the national interest,'' a phrase that is determined entirely | |
| by the President's discretion, according to the Office of Legal | |
| Counsel opinions, and that includes matters far beyond self- | |
| defense, even broadly construed, including humanitarian | |
| intervention, supporting the United Nations, and maintaining | |
| regional stability. | |
| Second, the War Powers Resolution has completely failed to | |
| control unilateral Presidential war powers. Indeed, Presidents | |
| have read the War Powers Resolution to confirm their inherent | |
| power in the first 60 days, and through a number of ways that I | |
| outline in my testimony, they have basically emasculated the | |
| War Powers Resolution. | |
| Third, the executive branch has interpreted the 2001 and | |
| 2002 authorizations to use military force to justify military | |
| force, as my colleagues suggested, in ways that do not match | |
| the original aims at all. | |
| So, in my view, the most important reform here, in the | |
| first instance, is reform of the 2001 AUMF. The reasons are | |
| many. I think it is vital that Congress examine the war that is | |
| being fought, to have a good sense of how it is being fought, | |
| to decide whether it agrees with the scale and scope and | |
| strategy, if it should be blessed as it is, if it should be | |
| expanded, if it should be narrowed. Congress needs to weigh in | |
| on that expressly, not in a reactive way through | |
| appropriations, as tends to be the case, but actually in an | |
| affirmative way, engaged with the executive branch in deciding | |
| what the war effort requires. That would legitimate the war as | |
| it is now being fought. It would also legitimate the war going | |
| forward in the first few years, because we haven't had an | |
| update of these authorities literally in almost 20 years. | |
| It would also, hopefully, make the war more transparent to | |
| the American people. There has been a disjunction between wars | |
| being fought in the name of the American people and the | |
| American people and, seemingly, Congress' awareness of what is | |
| going on. I do not know what happens in classified briefings, | |
| obviously. But, as warfare has become a lighter and lighter | |
| footprint, and as U.S. troops have become less and less at | |
| risk, they just do not attract the political attention that | |
| they used to. | |
| Senator Kaine said, four or 5 years ago in a speech, that | |
| he thought there was a tacit bargain between Congress and the | |
| President just to keep this stuff off the radar screen. And | |
| that is certainly one interpretation. | |
| Another reason, as Ranking Member McCaul suggested, is it | |
| is vital that the troops we have deployed overseas know that | |
| Congress is behind the mission. | |
| And, finally, I believe that a properly amended AUMF would | |
| keep Congress in the game through some kind of sunset provision | |
| where it would have to re-engage with the President every | |
| several years. | |
| I outlined my detailed proposals in the book with Bob Bauer | |
| and in my testimony. Briefly, the second most urgent set of | |
| reforms concerns the War Powers Resolution. In my judgment, | |
| from no constitutional perspective can it be that the President | |
| of the United States can use force whenever he wants. He | |
| decides by himself; that is our law right now. And Congress in | |
| the War Powers Resolution has done nothing to stop that from | |
| happening. Congress needs to re-engage on that. As Oona | |
| Hathaway said, that is much harder, but it is very important to | |
| do so, as well. And I explain in my book and in my testimony | |
| how I think the WPR should be reformed. | |
| Thank you very much. | |
| [The prepared statement of Mr. Goldsmith follows:] | |
| [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] | |
| Chairman Meeks. Thank you, Mr. Goldsmith. I thank all of | |
| our witnesses for your testimony. Thank you very much. | |
| I will now recognize members for 5 minutes each, pursuant | |
| to House rules. All time yielded is for the purposes of | |
| questioning our witnesses. I will recognize members of the | |
| committee in seniority order, alternating between Democrats and | |
| Republicans. If you miss your turn, please let our staff know | |
| and we will come back to you. If you seek recognition, you must | |
| unmute your microphone and address the chair verbally and | |
| identify yourself so that we know who is speaking. | |
| I will start by recognizing myself for 5 minutes. | |
| While listening to out witnesses--and again, thanking them | |
| for their testimony--all of our witnesses, both the Democratic | |
| and Republican witnesses, have called for the 2002 AUMF to be | |
| replaced, and specifically not replaced. So, let me ask you, I | |
| guess, first, Mr. Goldsmith, can you explain this view and why | |
| does the 2002 AUMF not need to be replaced? | |
| Mr. Goldsmith. Yes, sir. My view is that the 2002 | |
| authorization had a very specific purpose. It had its purposes | |
| defined in the statute itself. It had to do with Iraq's weapons | |
| of mass destruction and violating international law. It | |
| concerned and aimed toward the government of Saddam Hussein. It | |
| has stayed on the books and it has been used for all sorts of | |
| reasons that maybe you could squeeze into the language, but it | |
| has basically been used by President Obama and President Trump | |
| as an alternate justification for using force in Iraq--in Iraq, | |
| not against Iraq, under various circumstances. | |
| I do not believe that that is what the Congress meant to | |
| authorize. I do not believe it is necessary. I do not think | |
| anything turns on it, frankly. I do not think much turns on it, | |
| frankly, but I do not think it should be on the books, either. | |
| Chairman Meeks. So how would the President, then, be able | |
| to combat ISIS and Al Qaeda and defend our troops? | |
| Mr. Goldsmith. ISIS and Al Qaeda are clearly covered the | |
| 2001 AUMF. | |
| Chairman Meeks. And, Ms. Hathaway, do you agree with that? | |
| Ms. Hathaway. I one hundred percent agree with that. I | |
| think the 2002 AUMF was very clearly defined quite narrowly. It | |
| says it authorizes the President to defend the national | |
| security of the United States against the continuing threat | |
| posed by Iraq. And what Congress meant by that was Saddam | |
| Hussein's Iraq, which at the time we believed possessed weapons | |
| of mass destruction. It turned out that that was not, in fact, | |
| accurate, but that was the basis for the authorization. And | |
| then the second basis was to enforce U.N. Security Council | |
| resolutions, which have all expired. | |
| And so this authorization, while it has been called on by | |
| some Presidents, and referenced, I think almost every one of | |
| those references, experts agree, were not actually effective | |
| references to the 2002 AUMF. And all the operations, | |
| counterterrorism operations, against Al Qaeda, ISIS, and | |
| affiliated forces are much more properly done under the 2001 | |
| AUMF, or its replacement that we will be discussing, as well. | |
| Chairman Meeks. So, let me ask this question. Mr. Bauer, | |
| having served as a White House Counsel, do you think Congress | |
| should always take the legal opinions of the executive branch | |
| lawyers at face value? | |
| You may have to unmute yourself, Mr. Bauer. | |
| Mr. Bauer. My apologies. No, sir. I would say Congress does | |
| need to pay close attention to the legal claims that the | |
| President makes for unilateral action under Article II, or any | |
| interpretations that Presidents make of the authority they | |
| believe that Congress provided them in an authorization to use | |
| military force. | |
| And so I agree with both Professor Goldsmith and Professor | |
| Hathaway. And I would add I think it is particularly dangerous | |
| to the Congress, and misleading to the public, so many years | |
| after 2002, and so clearly not consistent with Congress' | |
| intent, for the President, in a particular context, to claim | |
| that he or she is acting in partnership with the Congress, | |
| when, in fact, that is not true. | |
| And I think that is a fundamental question of leveling with | |
| the American public and holding the President accountable for | |
| the justification that he or she proposes to provide. If the | |
| President wants to stand on Article II authority, then the | |
| President ought to make that case, and then the President's | |
| lawyers provide the basis for the exercise of Article II | |
| authority. And the Congress should be very attentive to what | |
| executive branch lawyers are saying and be prepared to hold the | |
| executive to account for those legal opinions. | |
| Chairman Meeks. Thank you. Now, when discussing a potential | |
| replacement for the 2001 AUMF, all of you have said and called | |
| for including a specific requirement that Congress reauthorize | |
| the AUMF after two or 3 years. Mr. Bauer, can you explain why | |
| you think that requirement is important? | |
| Mr. Bauer. I'm sorry, the sunset provision, Mr. Chair? Just | |
| to be sure I---- | |
| Chairman Meeks. Yes, that's it. | |
| Mr. Bauer. Yes, I think it is very important, if Congress | |
| is going to get into the game, for Congress to remain in the | |
| game. And the history suggests that there needs to be | |
| reconsideration over some period of time. Whether it is two or | |
| 3 years, I know there have been congressional proposals for | |
| more extended sunset allowances, but, one way or the other, I | |
| think the objective is for Congress to reestablish itself, as | |
| the title of your hearing suggests, to reclaim its possession | |
| in war powers. And for that to happen, it has to remain | |
| continuously engaged. And that is the purpose, certainly, of a | |
| sunset provision. | |
| Chairman Meeks. Thank you. I am just wondering, a quick | |
| answer, yes or no, Ms. Hathaway, do you agree, yes or no? | |
| Ms. Hathaway. I completely agree, yes. | |
| Chairman Meeks. And, Mr. Goldsmith, do you agree, yes or | |
| no? | |
| Mr. Goldsmith. I do. | |
| Chairman Meeks. Thank you. Thank you for your answers. | |
| I will now call on--my time has expired. I now call on the | |
| ranking member, Mr. McCaul, for his questions. He is now | |
| recognized for 5 minutes. | |
| Mr. McCaul. Thank you, Mr. Chairman. And I think we all | |
| take this issue very seriously. It is probably the most serious | |
| question that Congress has to decide. I think the last time | |
| that Congress actually declared war, as expressly provided by | |
| the Founding Fathers under the Constitution, was before World | |
| War II. Then, after Vietnam, the War Powers Resolution came | |
| into place, and then we have this battle between that and | |
| Article II. I think, in some respects, the War Powers | |
| Resolution maybe limited Congress from the inherent | |
| constitutional authority. | |
| But, having said that, Professor Goldsmith, I just had a | |
| question. In your view, does an outright repeal of the 2002 | |
| AUMF standing alone represent a significant reform of the war | |
| power authorities? | |
| Mr. Goldsmith. No, sir. I think it is not nothing, because | |
| it is good for whenever Congress gets in the game to examine | |
| legal authorities related to war. But I think it is the lowest- | |
| hanging and smallest fruit of everything on the table. I do not | |
| think it accomplishes very much. It is mostly symbolic, and it | |
| depends on what you think of the symbolism. I do not think it | |
| is as important as the other reforms. | |
| Mr. McCaul. Yes. And then I would like to get to those | |
| other reforms that you are talking about. Would it, in your | |
| view, be better, instead of--well, first of all, not to rush | |
| this process, it is a very important thing that we are doing on | |
| this committee that is inherent to our jurisdiction. And I | |
| commend the chairman for exercising our jurisdiction and | |
| constitutional authority. I think it would be better to do this | |
| with a little more time to get this right and make it | |
| bipartisan. | |
| But, having said that, do you think it would be better to, | |
| instead, take up a 2002 repeal concurrently with a repeal of | |
| the 2001 AUMF, and the enactment of a new counterterrorism AUMF | |
| scoped to today's critical threats? | |
| Mr. Goldsmith. I defer to Congress about how it shapes its | |
| legislation, obviously. When I said the 2002 AUMF repeal | |
| wouldn't accomplish much, that doesn't mean I do not think you | |
| should do it. I meant, I want to be very clear: I think you | |
| should do it. | |
| I, myself, think you should take them up together. They are | |
| both about the President's, effectively, as they have been | |
| used, counterterrorism authorities in the so-called global war | |
| on terrorism. And I think they are most fruitfully considered | |
| together. And I think, with the 2001 AUMF, the issue is much | |
| more vital for Congress to engage in, while not suggesting that | |
| you shouldn't engage with the 2002 also. | |
| Mr. McCaul. Right. So, in other words, if we were repeal | |
| both AUMFs, and then enact, with our inherent constitutional | |
| authority, a new counterterrorism AUMF that encompasses the | |
| threats of today since 9/11, in my judgment, do not you think | |
| that would be a better way for us to proceed? | |
| Mr. Goldsmith. Yes, I believe that what Congress' role is | |
| here is to do a comprehensive examination of the global war on | |
| terrorism as it has been involved for 20 years. I would look at | |
| all the authorities that the President has invoked. I would try | |
| to figure out how important the 2002 and 2001 AUMFs are to the | |
| President. And I do think that they are most fruitfully | |
| considered together, but, again, not purporting to tell you how | |
| to proceed with your legislation. | |
| Mr. McCaul. Right. And in the limited time I have, for our | |
| other two witnesses, I mean, there has been a ton of | |
| constitutional scholar analysis. All three of you, I mean, how | |
| do you reconcile the war powers clause of the Constitution, | |
| which is very clear, then the War Powers Act resolution that | |
| took place in the seventies--or, actually, yes, a little bit | |
| prior--and then the Article II self-defense arguments that were | |
| made in the case of Soleimani, along with the 2002 AUMF? Does | |
| that make sense? | |
| Ms. Hathaway. It does. I can say a few quick words. I think | |
| that the way to understand it is that Congress is the one that | |
| has the authority to declare war, and that includes formal | |
| declarations of war. It also includes authorizations for use of | |
| military force. The President retains the capacity to defend us | |
| in the case of attack, and that is an authority that he retains | |
| regardless of whether Congress has authorized it. But it is a | |
| fairly narrowly circumscribed, independent authority of the | |
| President, appropriately so, right? | |
| So, you do not want the President to sort of claim that | |
| something is a defensive use of force and launch a massive war | |
| under a claim of self-defense. There has to be some narrowly | |
| circumscribed role. But it has always been clear from the time | |
| the Constitution was written that the President has the | |
| authority to defend us. But, for other uses of use of force, he | |
| needs to consult with Congress and get Congress' authorization | |
| in order to use force. | |
| Mr. McCaul. And I tend to agree with that. | |
| I see my time has expired. I yield back. | |
| Chairman Meeks. Thank you. The gentleman yields back. | |
| I now recognize Mr. Sherman from California for 5 minutes. | |
| Mr. Sherman. Thank you. I thank the chairman for holding | |
| this hearing. | |
| This is an issue that has vexed our Republic since the very | |
| beginning. Jefferson sent American naval and marine forces to | |
| the shores of Tripoli, actually closer to Benghazi, to fight | |
| pirates who preyed on American ships. And doing so, he did ask | |
| for congressional authorization and got it, but kind of asked | |
| for it as an afterthought. So, while more recent conflicts are | |
| our focus, the founding generation had not worked out the | |
| difference between Article I and Article II, the right to | |
| declare war versus the right to command our troops. | |
| I am not sure that the Soleimani attack triggered the War | |
| Powers Act because it was conducted in an hour rather than the | |
| 60 or 90 days. But, putting that aside, and some other issues | |
| aside, we certainly have seen a violation of the War Powers | |
| Act, at least in my mind, in Bosnia, Kosovo, and Libya. | |
| There are three aspects that we need to focus on. The first | |
| I think people have talked about: the AUMFs. 2002 ought to be | |
| repealed. 2001 will be more difficult to deal with because we | |
| do not have a consensus in Congress as to what our policy | |
| should be in Afghanistan, but I am hoping that we can at least | |
| trim the 2001 AUMF to say it doesn't authorize any new wars. | |
| Because if you read 2001, it authorizes war just about anywhere | |
| where the supporters of Al Qaeda may reside, and that is a lot | |
| of different places. | |
| The second thing we have to do on the War Powers Act is | |
| define ``hostilities.'' President Clinton and President Obama | |
| both asserted that we are not entering forces into hostilities | |
| when we are just bombing, or, in the case of Libya, bombing | |
| using drones, or bombing in a way that has a low risk of | |
| American casualties. And, of course, around the world we face | |
| the issue of whether we are there to do training or whether we | |
| are fighting. | |
| But the final issue I would like to focus on is, even with | |
| all this, every President since Nixon, since the War Powers Act | |
| was passed, and to some degree since Jefferson, have asserted | |
| that they have the constitutional right to send our forces | |
| anywhere anytime; Congress is just there to provide the money | |
| or not provide the money. | |
| I commend our first witness, Ms. Hathaway, for her comment | |
| about how important it is that any revised War Powers Act give | |
| Congress standing to go into court and enforce it. And, | |
| finally, I want to commend her for pointing out the importance | |
| of using our power of the purse to win this constitutional | |
| battle. | |
| In 2011, I proposed an amendment to our appropriations bill | |
| that said no money can be spent in contravention of the War | |
| Powers Act. Since then, I do not think we have had a violation | |
| of the War Powers Act, and we have been able to include that | |
| amendment in every spending bill. It was a big controversy in | |
| 2011. Now we put it in every bill. I want to thank 30 of our | |
| colleagues for co-sponsoring the bill to make that permanent | |
| law, not having to put it in every appropriations bill. | |
| Ms. Hathaway, how useful is it, or is it useful, to use | |
| Congress' power of the purse to further underline and buttress | |
| our constitutional right to have a War Powers Act? | |
| Ms. Hathaway. It is not only useful, it is absolutely | |
| essential. This really is fundamentally the power that Congress | |
| has. It has the power to cutoff the use of funds to wage a war | |
| that Congress doesn't support. | |
| And the reason that I support an automatic cutoff of the | |
| kind that you describe is that, if Congress has to separately | |
| vote to cutoff funding for an ongoing war, that is almost | |
| certainly going to be vetoed by the President. So that imposes | |
| a supermajority requirement. You have to muster a veto-proof | |
| majority in both Houses, and that is just fundamentally | |
| impossible. We have seen that. And that is not what the | |
| Constitution ought to require. What the Constitution makes | |
| clear, Congress is the one that ought to be able to make the | |
| decisions about this. So, having this automatic cutoff is | |
| really essential to an effective War Powers Resolution. | |
| Mr. Sherman. Thank you. I believe my time has expired. | |
| Chairman Meeks. The gentleman yields back. I now recognize | |
| Representative Wilson of South Carolina, who is the ranking | |
| member of the Subcommittee on the Middle East, North Africa and | |
| Global Counterterrorism, for 5 minutes. | |
| Mr. Wilson. Thank you very much, Mr. Chairman. | |
| And given the ongoing and evolving nature of the threats | |
| posed by terrorist groups in the global war on terrorism, the | |
| conversation around an authorization for use of military force | |
| and its effectiveness is an important one. The realization that | |
| certain elements of the existing 2001 and 2002 Authorizations | |
| for Use of Military Force may be outdated does not negate the | |
| need for their existence. Any efforts to repeal an AUMF without | |
| a concurrent replacement addressing today's threats would be a | |
| disaster for the U.S. national security, American families, and | |
| it would be, sadly, welcomed by our adversaries. To me, it is | |
| crucial that we defeat the terrorists overseas to protect | |
| American families at home. It is critical that the President | |
| have the authority to conduct counterterrorist efforts around | |
| the globe in real-time. | |
| And we are so grateful to have the witnesses with us today. | |
| All are quite distinguished and knowledgeable. | |
| Professor Hathaway, I have a question for you. And that is: | |
| over the course of the global war on terrorism, we have learned | |
| that terrorist groups deliberately obscure their activities, | |
| conceal their memberships, and change their names to make it | |
| difficult to identify them. In the context of the narrowing | |
| [inaudible], this tactic could have a strategic impact. | |
| Should Congress have a role in approving by name lists of | |
| terrorist groups associated with Al Qaeda? Would that enhance | |
| or detract from the flexibility of the existing AUMF? | |
| Ms. Hathaway. That is a great question. I think it is a | |
| really important one. So, it is important to note how this | |
| happens now within the executive branch. So, within the | |
| executive branch, there is a list. So, there is an ongoing list | |
| as to which groups are approved for use of force under the 2001 | |
| Authorization for Use of Military Force. In its final days, the | |
| Obama Administration published a framework, a guidance, where | |
| they listed all of these groups. In the sort of public, | |
| unclassified document were listed all of the affiliated groups | |
| against whom force was authorized. And they can be fairly | |
| broadly defined, as they were in that document. And I think it | |
| is appropriate for Congress to be consulted if new groups are | |
| going to be added to that list or if the geographic scope of | |
| that authority is going to be expanded. | |
| Mr. Wilson. Thank you for your input. That is very helpful. | |
| Hey, I am glad to know that they actually do have lists. And so | |
| that is critically important. | |
| And then, Professor Goldsmith, a fellow general: Presidents | |
| Trump and Obama used the 2002 AUMF as partial justification for | |
| a number of operations, including operations against ISIS, as | |
| well as operations against Iranian-backed terrorist militia | |
| Hezbollah. How would the repeal of the 2002 AUMF affect the | |
| legality of the operations mentioned above? | |
| Mr. Goldsmith. I do not believe they would affect the | |
| operations mentioned above under current authorities that the | |
| executive branch asserts under Article II of the Constitution, | |
| and perhaps, depending on the groups--I didn't hear them all-- | |
| perhaps, in part, under the 2001 AUMF. All of the authorities | |
| under the 2002 AUMF, as best I can tell, have been in the | |
| alternative with Article II. | |
| Mr. Wilson. Thank you. And given, indeed, the global war on | |
| terrorism will extend well beyond any President's term, what | |
| are the practical ramifications for requiring congressional | |
| authorization on sunset clauses? | |
| Mr. Goldsmith. What are the ramifications of doing that? I | |
| mean, my view is that, especially if you think the war is going | |
| to go on for a very, very long time, that makes sunset clauses | |
| all the more important to force Congress and the President to | |
| debate the scope and justification and legitimacy of the war | |
| and to reauthorize it in a way that Congress sees fit, | |
| exercising the congressional powers that this hearing is about | |
| reclaiming. | |
| And I will say that some people worry that this is going to | |
| cause problems with the operation as it is going on. I do not | |
| believe that that is true, for a whole bunch of reasons, one of | |
| which is, if anything, appropriations problems come up much | |
| more often. And those things, when they expire and after the | |
| emergency appropriations, they actually have to get done. And | |
| they do not seem to have an impact on the operations. As long | |
| as Congress is engaged on a regular basis, as a sunset would | |
| encourage it to do, I do not think that it should have any | |
| negative impact. | |
| Mr. Wilson. Well, thank you very much, and my time is up. | |
| And I yield back. Thank you, Mr. Chairman. | |
| Chairman Meeks. Thank you. The gentleman yields back. | |
| I now recognize Representative Albio Sires of New Jersey, | |
| who is the chair of the Subcommittee on Western Hemisphere, | |
| Civilian Security, Migration and International Economic Policy, | |
| for 5 minutes. | |
| Mr. Sires. Thank you, Chairman, for holding this hearing. | |
| And thank you to our witnesses for being here today. | |
| It just seems that every President uses these resolutions | |
| as they see fit. I was just wondering, are these resolutions a | |
| strong enough foundation that we should work to amend them or | |
| should we be working to serve and draft entirely new | |
| legislation? I mean, are they strong enough? Any of the three. | |
| Ms. Hathaway. I am happy to say a quick word, and then hope | |
| that my colleagues will jump in. | |
| I think that the 2002 AUMF, I agree with my colleagues, | |
| should be just repealed. The 2001 AUMF, frankly, it is so | |
| outdated that I do not see a whole lot of reason for retaining | |
| its structure. I think what we want to do is maintain the scope | |
| of the central authorities that are contained within it, but I | |
| think that probably it requires a pretty entire rewrite that | |
| would take the authorities that Congress continues to support, | |
| but will update it for the current era. | |
| Many of the authorities against which we are fighting today | |
| under the 2001 Authorization for Use of Military Force did not | |
| exist with the 2001 Authorization for Use of Military Force was | |
| enacted. And so it doesn't make a whole lot of sense to rely on | |
| the text of that authorization, which, again, was enacted mere | |
| days after the 9/11 attacks, when Congress, like the rest of | |
| the country, was just reeling from the horror of those attacks | |
| and didn't know exactly who the enemy was, and so wrote in it | |
| in this fairly broad-brush way, appropriately, given the | |
| circumstances. But we know a lot more now almost two decades | |
| later, and it is appropriate for Congress to write an AUMF that | |
| is much clearer, that is much more pointed, that gives | |
| authority to wage war against the actors that we are currently | |
| at war with, and not give an open-ended authority to the | |
| President to expand that significantly without coming back to | |
| Congress. | |
| Mr. Sires. Anyone else like to add? | |
| Mr. Bauer. Congressman, I would just say I agree that--and | |
| I think as my colleague, Professor Goldsmith, said--I think | |
| these, without suggesting how Congress should go about shaping | |
| its legislation, I see this as a concurrent exercise in which | |
| the repeal of 2002 and the updating of 2001, all of this is | |
| sort of a package of reforms. And so whether you call it a | |
| revision or you call it an updating, I do think, in the ways | |
| that we have discussed of identifying clearly who we are at war | |
| with, who would be considered an associated force co- | |
| belligerent with those we are at war with, all of that could be | |
| contained in a revision that I think would give it a strong | |
| foundation for addressing these issues, without it being sort | |
| of an open-ended invitation to the President for very | |
| aggressive interpretations. | |
| Mr. Sires. Mr. Goldsmith. | |
| Mr. Goldsmith. I agree with my colleagues. I would simply | |
| add that the way it has been working now is that the | |
| President--and many Presidents--several Presidents have | |
| expanded the AUMF as they see fit. Congress eventually finds | |
| out about it. Congress, in my view, kind of quietly, through | |
| appropriations, which do not have the same salience as the kind | |
| of conversation now, appropriates for it. And so Congress has | |
| just entirely reacted, as best I can tell. Now, maybe there is | |
| more going on, but, from a public perspective, it seems like | |
| that Congress is basically just completely deferring to the | |
| President about the shape of war, and that should not be going | |
| on. That is not Congress' role, in my opinion. | |
| Mr. Sires. That is just basically any President we have had | |
| the last few terms; they just use it as they see fit. All | |
| right. I do not have any more questions. Thank you. Thank you, | |
| Chairman. | |
| Chairman Meeks. Thank you. The gentleman yields back his | |
| time. I now recognize Representative Scott Perry of | |
| Pennsylvania for 5 minutes. | |
| Mr. Perry. Well, thank you, Mr. Chairman. Thanks for | |
| bringing this issue to the fore and having this hearing. | |
| I would say that I hope that, if we are going to discuss | |
| something as weighty as this--and I cannot think of many things | |
| that are more weighty in context--that this isn't the only | |
| hearing and the only discussion we have on this subject. | |
| I think maybe I'll just start with Mr. Goldsmith. It seems | |
| to me that certainly President Trump used the 2002 AUMF for the | |
| justification of the removal of the battlefield from Qasem | |
| Soleimani, and I agree with his removal. Now, I guess what we | |
| are talking about functionally here is simply eradicating the | |
| 2002 AUMF, which I am not necessarily opposed to. I wrote my | |
| own AUMF five or 6 years ago to replace it. But my concern is | |
| we are not talking about replacing it; we are talking about | |
| just eradicating it and moving forward, where we have | |
| international terrorist organizations operating solely to | |
| destroy the United States of America and Western civilization. | |
| I guess, that having been said, I think I would like to get | |
| into a little bit of a discussion with you about the President | |
| defending the United States. And in that regard, as a | |
| servicemember myself who served for many years, including in | |
| Iraq, I saw Soleimani as a belligerent and an enemy of the | |
| United States of America who was conducting offensive | |
| operations with impunity in-country, in the region, and around | |
| the globe, and we did nothing about it. | |
| If we repeal the 2002 AUMF without anything replacing it, | |
| so to speak, would--well, let me back up. If there was no 2002 | |
| AUMF when President Trump eliminated Soleimani from the planet, | |
| would there be any justification for doing that? Or would there | |
| be no justification, or an even more strained justification | |
| than the Trump Administration used? | |
| Mr. Goldsmith. Sir, given my understanding of the low-level | |
| conflict that had been going with Iraq for not just years, but | |
| for a very long time in Iraq and Syria, and given Soleimani's | |
| hand in that, I actually--the answer, the stark answer to your | |
| question is I do not believe the 2002 AUMF, if it were | |
| abrogated, would have any impact on the President's authority | |
| to do that under his understanding of Article II. | |
| And, frankly, as the Article II justification has gone in | |
| recent years, my view is that was a relatively easy one. The | |
| reason it was controversial is because it took place in Iraq | |
| and it was a very high-level official, and that was the | |
| difference. But, in terms of the actual self-defense threat, as | |
| explained by the government, and reports prior, I think it was | |
| greater there than some other circumstances. | |
| But I would also say, sir, that if you believe that these | |
| entities pose a threat, I think that you should address it. I | |
| think you should have hearings. I think you should figure out | |
| who the enemies are. It is, obviously, a very large step to | |
| authorize force, for Congress to authorize force, against | |
| Iranian militias. And I do not know if Congress is willing to | |
| do that. But I do think that Congress should step in and figure | |
| out where the President should be using force as much as it | |
| possibly can. | |
| Mr. Perry. I agree with you to a certain extent with that, | |
| but with the understanding that I think it is somewhat myopic. | |
| And I am not saying that you are being myopic or | |
| inconsequential here, but I just do not see the practicality of | |
| having a discussion in a committee or the Committee of the | |
| Whole in Congress about whether we should take Soleimani out, | |
| or somebody like Soleimani, right? | |
| Terrorists act and operate with impunity and secrecy and | |
| they are wily and they cheat, they lie, they do whatever they | |
| have to to be effective. And you cannot really have those kinds | |
| of discussions out in the open if you are going to be | |
| effective. And so, while I agree wholeheartedly that Congress | |
| needs to be involved, I am concerned about where we are headed | |
| with this, even though I agree that we need to replace both of | |
| them. But the word is ``replacement,'' and I think we are just | |
| talking about repeal. | |
| Would you say that you think that there is a role for the | |
| AUMF, aside from the War Powers Act in the Constitution, or | |
| that they should just be repealed and we should just rely | |
| solely on the Constitution in the advent of a world that | |
| includes international terrorists and the activities that they | |
| conduct? | |
| Mr. Goldsmith. I absolutely do believe that. I mean, I | |
| believe you should conduct comprehensive reform about the use | |
| of Presidential force in the terrorism context. And I think | |
| that involves looking at the whole array of threats and | |
| figuring out as best you can what you think you should be | |
| supporting the President doing. | |
| Article II is a backup. Article II has been used by the | |
| President in an increasing array of circumstances, a lot of | |
| them not related to direct self-defense. I believe Congress | |
| should weigh in as much as it can to address the President's | |
| proper Presidential authorities in these contexts. | |
| Chairman Meeks. Thank you. The gentleman's time has | |
| expired. | |
| Mr. Perry. Thank you, Mr. Chairman. I yield. | |
| Chairman Meeks. I now recognize Representative Gerry | |
| Connolly of Virginia, the President of the NATO Parliamentary | |
| Assembly, for 5 minutes. | |
| Mr. Connolly. Thank you, Mr. Chairman, and thank you for | |
| pulling together this hearing. This is one of the most | |
| thoughtful hearings I can remember, and I think all three of | |
| our witnesses are outstanding and have really contributed to | |
| the intellectual dialog we need to be having about war powers, | |
| not just the AUMF, but war powers in general. | |
| My view is more of the strict constructionist point of view | |
| about what Article I means and what Article II means. I am | |
| going to assert that the Founders severely limited the role of | |
| the President as Commander in Chief. It was entirely within the | |
| purview of Congress in Article I to decide where and when and | |
| how to engage in a military activity, and it was the limited | |
| role of the President to then command the troops required to | |
| engage in that military activity. | |
| Now, we do not live in that same world today, but, my God, | |
| have we strayed far afield of the original intent, clearly, of | |
| the Founders, who had grave suspicions even about a standing | |
| army, let alone envisioning the kind of dilution of | |
| congressional power today and the incredible increase of | |
| executive power we have allowed to happen since World War II. | |
| And part of it is Congress' own lack of fortitude and | |
| irresponsible behavior and not wanting to take responsibility | |
| for hard decisions, but a lot of it has come from speeches and | |
| legal arguments made by the executive branch. | |
| So, what I would like each of the three of you to do in the | |
| remaining time I have got, you know, the expanded powers of the | |
| executive are sort of all about imputed powers to the role of | |
| the Commander in Chief provided in Article II. I would like you | |
| to address, well, if the executive gets to have imputed powers, | |
| why doesn't the legislative branch in the Article I have | |
| imputed powers? And if so, what ought those imputed powers to | |
| be? And, Ms. Hathaway, maybe you could start. | |
| Ms. Hathaway. Yes, I am happy to. I think you put your | |
| finger on something really important, which is you have got the | |
| constitutional provisions which give up much more authority, on | |
| the face of it, to Congress than it does, really, to the | |
| President. The President is Commander in Chief, but it is | |
| Congress that has the authority to declare war, to raise and | |
| support armies, to regulate the military. So it is strange that | |
| we have gotten ourselves to a place where Congress is so often | |
| kind of read out of the picture almost entirely and rarely has | |
| a role to play in making decisions about whether to use | |
| military force. | |
| And that, I think, is the result of a couple of things. I | |
| think one is these Authorizations for Use of Military Force are | |
| enacted, and then Presidents' lawyers get in on the act. And | |
| all of us have been lawyers for the President at one time or | |
| another, so we know how this works. And you take the | |
| authorities that are there and you interpret them as broadly as | |
| you can. The Office of Legal Counsel plays a significant role | |
| in this. The so-called lawyers' group plays an important role | |
| in this. And they interpret these authorities to allow the | |
| President to act in a wide range of scenarios. | |
| And Congress really doesn't have the tools to press back. | |
| It neither has the kind of counterpart to the Office of Legal | |
| Counsel, and it only finds itself in a position of only being | |
| able to respond by legislation. And, again, the response | |
| through legislation, it faces a likelihood--in fact, almost | |
| certainty--of a veto from the President, which is nearly | |
| impossible to overcome. | |
| So, by not being willing to really engage and revisit the | |
| War Powers Resolution and these AUMFs, Congress has really sort | |
| of let itself be read out of the process almost entirely. | |
| Mr. Connolly. Thank you. Mr. Bauer? Professor Bauer? | |
| Mr. Bauer. Yes, thank you, Congressman. | |
| Yes, I would add, because you raise this whole question of | |
| executive branch interpretation--and Professor Hathaway has | |
| addressed it--that what happens is it is a snowball, that over | |
| time each administration--and again, I may be slightly | |
| overstating the case--but there are expansions in the language, | |
| extensions of the reasoning that provide lawyers and successive | |
| administrations more and more opportunities to build more and | |
| more expansive cases for the President's interpretation of AUMF | |
| and the President's interpretation of unilateral Article II | |
| authority. | |
| Professor Hathaway is correct, Congress obviously cannot | |
| shut down the President's ability to interpret the law, but the | |
| Congress can, as part of an overall reform effort, put some | |
| significant pressure, particularly if an executive is willing | |
| to be a partner in the reform effort, on the executive to | |
| reconsider some of these Office of Legal Counsel opinions and | |
| to introduce a little bit of discipline into that process. | |
| And we sort of refer to them in our book--Jack and I do--as | |
| ``loaded guns.'' And Congress does have a role in putting it | |
| back in the storehouse. I think Congress can put some | |
| significant pressure on the executive to account for some of | |
| the really extraordinarily expansive positions that have been | |
| taken, with each Legal Counsel's Office able to take advantage | |
| of the expansive interpretation of the previous one. | |
| Chairman Meeks. Thank you. The gentleman's time has | |
| expired. | |
| Mr. Connolly. Thank you, Mr. Chairman. | |
| Chairman Meeks. I now recognize Representative Darrell Issa | |
| from the State of California for 5 minutes. | |
| Mr. Issa. Thank you, Mr. Chairman. | |
| And I want to thank all our witnesses. I think we are on a | |
| very good track, and I see a lot more concurrence than I do | |
| disagreement, which is always the hallmark of this committee. | |
| I am going to go down the list, but, Ms. Hathaway, as we | |
| were talking, and you were talking, about the power of the | |
| purse and getting standing, would you say that in a perfect | |
| world--and we will assume for a moment that Congress can do | |
| whatever it wants to do--would you say that what we should do | |
| is, in fact, draft a new bill that would define the use of | |
| military force for the various areas that we believe need to go | |
| forward, but that if that bill, no matter how broad or narrow | |
| it is, failed to, in fact, link future funding and a standing, | |
| if the President exceeds it, that we would be right back where | |
| we were? In other words, this whole exercise is not a permanent | |
| change unless we enact those two changes? | |
| Ms. Hathaway. Yes, I think this is a really important | |
| point. So we are talking about sort of two things here. We are | |
| talking about the Authorizations for Use of Military Force and | |
| repealing and replacing those with a more clearly updated | |
| authority that more specifically defines the enemy. So then | |
| separately we are talking about war powers reform, which would | |
| include within it the kinds of enforcement tools that you have | |
| described. And you really need to do both. | |
| You would need to not only reform or revise the | |
| Authorization for Use of Military Force, but also think ahead | |
| to what happens if the President wants to use authority outside | |
| the scope of those AUMFs and how are you going to enforce those | |
| authorities. And for that, you really need these more systemic | |
| reforms that would come with revising the War Powers | |
| Resolution. | |
| Mr. Issa. Thank you. | |
| For all of the witnesses--and please be brief in your | |
| answer--but I am going to ask two fairly complicated questions | |
| and hope to get simple answers. Is it fair to say that, to a | |
| great extent, we have been at war/in a hostile relationship | |
| with Iran since 1979? If you can answer yes or no, I would | |
| appreciate it. | |
| Ms. Hathaway, how about you? Would you say that that | |
| hostility has been pretty much continuous since 1979? | |
| Ms. Hathaway. So I am an international lawyer. As a matter | |
| of international law, I would say, no, because that is a very | |
| sort of specific legal term. | |
| Mr. Issa. Are they still holding our embassy in Tehran | |
| adverse to international law? | |
| Ms. Hathaway. Certainly we have been engaged in adverse | |
| relations with Iran at least since the seventies, if not | |
| before. Whether that sort of formally meets the definition of | |
| active hostilities, that is harder to say. | |
| Mr. Issa. So in a sense, I am saying this because Iran, our | |
| relationship with Iran is much like our relationship with | |
| Russia, the Soviet Union, during the cold war. It is | |
| essentially a continuous adversarial relationship which | |
| periodically has hot spots that include the use of force. Would | |
| that be fair to say there is a similarity? | |
| Ms. Hathaway. Yes. Well in some ways, there is a | |
| similarity. We have adverse interests in the region, and we | |
| have had significant--there have been points at which that has | |
| flared up into direct hostilities and times when it has been | |
| cool. We also have managed to collaborate at times, obviously | |
| in a particular way---- | |
| Mr. Issa. Right, but that also would be true of the Soviet | |
| Union during the entire time in which our spies were killing | |
| each other. | |
| Ms. Hathaway. Absolutely. | |
| Mr. Issa. So let me go through a couple of quickies. I use | |
| that example because it would appear as though the use of | |
| military force and/or declarations of war really do not fit | |
| relationships like the historic Soviet conflict or the Iran | |
| conflict after more than half a century, or a half a century | |
| now. | |
| Similarly, the use of military force does seem like it does | |
| not well fit non-State actors such as Al Qaeda and ISIS. So if | |
| we reform the use of military force, is it fair to say that | |
| there will always be--and this goes to Congressman Perry--there | |
| will always be this inherent obligation of the President to | |
| deal with non-State actors in a way different than anything we | |
| draft in the way of a War Powers Act? And there will always be | |
| the strained relationship/diplomacies like we had with the | |
| Soviet Union, China, North Korea, Iran, a number of these | |
| countries? Would it be fair to say that those two examples will | |
| continue to be outside the reforms that Chairman Meeks is | |
| trying to achieve? | |
| Chairman Meeks. Very brief, because the gentleman's time | |
| has expired. | |
| Mr. Issa. But I really want an answer for you, Chairman. | |
| Chairman Meeks. Go ahead. You can go ahead as long as it is | |
| brief. | |
| Ms. Hathaway. So I would say that I would like to see | |
| Congress be engaged in these decisions and not have these be | |
| outside the scope of the authorities that are granted by | |
| Congress. The AUMF, the 2001 AUMF, is specifically against non- | |
| State actors. So Congress has demonstrated that it is capable | |
| of authorizing a use of force against non-State actors. And if | |
| Congress thinks that we should be involved in an armed conflict | |
| with Iran, I do think that is a matter that ought to be debated | |
| and discussed and an express decision made along those lines. | |
| And if not, then that decision should be made as well. | |
| Chairman Meeks. Thank you. | |
| Mr. Issa. Thank you for the time, Chairman. I yield back. | |
| Chairman Meeks. I recognize the Representative Ted Deutch | |
| of Florida, chair of the Subcommittee on the Middle East, North | |
| Africa and Global Counterterrorism, for 5 minutes. | |
| Mr. Deutch. Thanks, Chairman Meeks, for convening this | |
| important hearing. In your short time as chair, you have shown | |
| true leadership in asserting jurisdiction of this committee. We | |
| all appreciate it greatly. | |
| Thanks to our witnesses for testifying. | |
| A decision on going to war is the greatest choice a Member | |
| of Congress can make. Article I, Section 8, of the Constitution | |
| entrusted substantial authority over war and peace to Congress. | |
| As we have been discussing, it declares that Congress shall | |
| have the power to declare war. Unfortunately, we have | |
| increasingly shirked this solemn responsibility, a trend that | |
| accelerated after the 9/11 terrorist attacks. | |
| And as my colleagues have noted, authorizations for the use | |
| of military force that passed in 2001 and 2002 still provided | |
| legal authority for most U.S. military operations around the | |
| globe. Congress and the world have changed significantly in the | |
| intervening years. Only 20 percent of the current Members of | |
| the House and Senate--20 percent--were in office when the 2002 | |
| AUMF passed. Last Saturday marked the 18th anniversary of the | |
| beginning of the Iraq War. In October, we will mark 20 years | |
| since the start of U.S. military operations in Afghanistan. | |
| Contemporary international challenges and foreign policy | |
| priorities are far different than they were throughout the turn | |
| of the century. | |
| That is why Congress must repeal the 2002 AUMF, which is no | |
| longer necessary. It authorized the use of military force in | |
| Iraq, an action against former dictator Saddam Hussein. As long | |
| as it remains on the books, the 2002 authorization will tempt | |
| Presidents to act unilaterally, ignore the will of the public, | |
| and further marginalize the role of Congress in foreign policy. | |
| We must also work with the Biden Administration to | |
| reconsider and modernize the 2001 AUMF. It will not be easy to | |
| define the contours of a new AUMF, but it is our duty to do so. | |
| The challenge of terrorism persists, but its nature and scope | |
| and our Nation's preparedness and counterterrorism objectives | |
| have transformed dramatically in the last two decades. | |
| So I appreciate the willingness of the Biden Administration | |
| to work with Congress on this initiative. President Biden | |
| served honorably in the Senate for 36 years. If there was ever | |
| a President who could serve as a partner in rebalancing | |
| congressional war powers, it is he. | |
| I also commend Chairman Meeks for elevating this issue and | |
| ensuring that this committee plays an active role in | |
| discussions and actions over war powers. As chairman of the | |
| Subcommittee on the Middle East, North Africa and Global | |
| Counterterrorism, I look forward, Chairman Meeks, to supporting | |
| your efforts. | |
| Professor Bauer and Professor Goldsmith, let me direct this | |
| one to you. Presidents often point to associated forces which | |
| are additional entities that can be targeted under the 2001 | |
| AUMF. And since the demise of core Al Qaeda in Pakistan and | |
| Afghanistan, the term is often used to justify strikes against | |
| Al Qaeda affiliates around the world. However, associated | |
| forces has never been defined in law. It is not included in the | |
| text of the 2001 AUMF. And the question--Professor Bauer, I | |
| will start with you--is whether Congress should incorporate | |
| that term ``associated forces'' in a future AUMF. | |
| Mr. Bauer. Yes, Professor Goldsmith and I think that is | |
| precisely what an amendment to the 2001 AUMF should include, | |
| and that is to have Congress not just specify the current | |
| enemies, but to provide a process for the executive to report | |
| to Congress on the designation of additional groups and to | |
| force Congress essentially, or to invite Congress to engage in | |
| a very transparent debate within an expedited timeframe on | |
| those additional groups and their inclusion within the AUMF. | |
| And so we think that is an important part of the reform | |
| program. | |
| Mr. Deutch. Well actually, Professor Hathaway, let me just | |
| turn to you for a second. How would that be defined? And how do | |
| you do it to provide flexibility, but also limit abuse by | |
| future Presidents? | |
| Ms. Hathaway. So this is one of a few points of | |
| disagreement between me and my colleagues. I think that it is | |
| potentially dangerous to include a term as vague as | |
| ``associated forces'' in a new AUMF. It is a term that has | |
| become a term of art. We have used it as if it appears in the | |
| 2001 AUMF, but if you read it, as you said, it is not anywhere | |
| in the text. It was a term that was sort of come up with by | |
| lawyers for the President, and then it has been given meaning | |
| over time. | |
| And what my fellow panelists want to do is sort of | |
| incorporate that meaning that has been given, including in a | |
| speech by Jeh Johnson which he gave at Yale Law School at my | |
| invitation, to include that in the revised AUMF. But the | |
| problem with that is that that gives the President the power to | |
| add new enemies, and then Congress has to veto that. And then, | |
| of course, Congress has to reject it, and then the President | |
| can veto that. | |
| I think that we should flip it around. I think Congress | |
| should be the one that has the authority to make the decision | |
| about whether we expand the list of enemies, not the President. | |
| And that is why I would say you should include a list, and then | |
| have an expedited process for adding to it if the President | |
| thinks that is necessary. | |
| Mr. Deutch. Thanks. Thanks, Mr. Chairman. This is a | |
| tremendously important exchange of ideas. Appreciate it. Thank | |
| you. | |
| Chairman Meeks. Thank you. The gentleman's time has | |
| expired. | |
| I now recognize Representative Adam Kinzinger of Illinois | |
| for 5 minutes. | |
| Mr. Kinzinger. Well thank you, Mr. Chairman. | |
| And thank you to everybody for being here. It is important | |
| we all remember obviously 9/11. Some of us, maybe a few of us | |
| here were actually in Congress; some of us were deployed as a | |
| result of these AUMFs. So I do think this is an important | |
| discussion. | |
| But 20 years later, I think an important question needs to | |
| be asked, which is are we safer today than we were on September | |
| 10th of 2001? And I actually think the answer is yes. And the | |
| reason is not that we have defeated radical terrorism | |
| ideologies, but because we are fighting them on their own soil. | |
| Sometimes we can be a victim of our own success. So if | |
| there hasn't been a terrorist attack in a while, and terrorists | |
| do not pose as a big of a threat maybe as they once did, we | |
| think the threat is gone. And we have done this many times in | |
| our history, basically relaxed our posture only to see, like we | |
| have seen in ISIS, these groups regroup and have to be attacked | |
| again. | |
| I also think it is important to remember that, in this | |
| discussion, we talk about different groups and how associated | |
| groups change. Our Founding Fathers probably never imagined a | |
| war on terror, a worldwide war, where a threat can be kind of | |
| nebulous like it is. And so I think that is important, too. | |
| But I do think it is a good discussion to have. I do think | |
| there needs to be some reforms. And I think though regardless | |
| of political party, one of the things I can proudly say is I | |
| have been consistent on this under President Obama, President | |
| Trump, and now President Biden. The President needs the power | |
| to fight against terrorism, and we have to be careful to kind | |
| of go into this realm of having 535 different commanders in | |
| chief because we all think we could do it better. And we | |
| ultimately end up doing nothing. And I think that is also what | |
| the Founding Fathers were concerned about. So there's merits to | |
| repeal and replace, but to have a blanket repeal of this policy | |
| I think would only make us far less safe. | |
| So I want to start, and maybe focus primarily on Mr. | |
| Goldsmith. In 2015, President Obama proposed a new draft AUMF | |
| that would have authorized him to use force against ISIS while | |
| excluding the use of ground combat operations. So should AUMFs | |
| micromanage hostilities, or should Congress just identify the | |
| enemy and let the President keep America safe? And let me also | |
| add to that, what would that have done to our current fight | |
| against ISIS, had that actually been the governing document? | |
| Mr. Goldsmith. So that is a question I am not in a great | |
| position to answer. Professor Bauer and I do not propose a | |
| ground troop limitation. We think it is more important, given | |
| the fluid nature of terrorists, that an AUMF focus on defining | |
| the enemy. | |
| We still have ground troops in Afghanistan and Iraq. | |
| President Obama had a very particular definition of ground | |
| troops. I cannot remember whether it would be satisfied by | |
| this. Congress has the authority to limit ground troops, if it | |
| wants. It has done it before. But that is not something that we | |
| proposed. | |
| Mr. Kinzinger. And I think anytime you decide you are going | |
| to fight and go to war, I think when Congress comes in and | |
| determines that, because of a political decision, we want to | |
| limit ground forces or whatever, then you are never serious | |
| about going and fighting, and we probably shouldn't go in the | |
| first place. We should engage in war obviously judiciously, but | |
| when we do, go to win. | |
| Let me also ask you--and I do not actually know the answer | |
| to this question; it is not leading to anything--but if we | |
| repealed the 2002 Iraq AUMF, what does that--anybody on the | |
| panel can answer--what does that actually do to our posture to | |
| defend our troops in Iraq against Iran, for instance, when they | |
| get attacked by these forces? I will start with you, Mr. | |
| Goldsmith. | |
| Mr. Goldsmith. I believe that one of the most foundational | |
| elements of self-defense is unit and personal self-defense. And | |
| if U.S. troops are attacked anywhere in the world, they can | |
| exercise self-defense in response, independent of the 2002 | |
| AUMF. | |
| Mr. Kinzinger. But does that allow us offensive operations | |
| against maybe a forming group in Iraq or Afghanistan? | |
| Mr. Goldsmith. Well that is a tough question. That depends | |
| on how broadly you read self-defense and anticipatory self- | |
| defense. The executives have read it very broadly, and that is | |
| a pretty fine-grained discussion. | |
| Mr. Kinzinger. And let me ask you, too, some Members of | |
| Congress propose geographic limitations on an AUMF. When you | |
| are dealing with transnational terrorist groups that move like | |
| Osama bin Laden, Al Qaeda did prior to 9/11, does it make sense | |
| to tie our legal authority to a particular country? | |
| Mr. Goldsmith. For me? | |
| Mr. Kinzinger. Yes. | |
| Mr. Goldsmith. Yes. Again, we do not propose tying it to a | |
| particular country. Let me say that the ground troops | |
| discussion has not really been on the table for a while | |
| because, in fact, the way the United States has conducted wars | |
| for about 8 years now has been through so-called light | |
| footprint warfare. President Obama basically switched to this, | |
| relying more heavily on drones and cyber, special operations | |
| forces. And so we have developed capacities to use force at a | |
| distance that are quite extraordinary. That, I think, is where | |
| the focus needs to be because that is where all of the | |
| decisionmaking is being made. | |
| The ground troop discussion, that is a policy discussion | |
| for Congress. I mean, to me, it doesn't seem like near the top | |
| of the list of issues. | |
| Mr. Kinzinger. Thank you. | |
| Chairman Meeks. The gentleman's time has expired. | |
| I now recognize Representative Karen Bass of California, | |
| the chair of the Subcommittee on Africa, Global Health, and | |
| Global Human Rights, for 5 minutes. | |
| Ms. Bass. Well once again, Mr. Chairman and Ranking Member, | |
| thank you for holding this meeting. This has been a topic that | |
| we have talked about for a very long time. | |
| And I wanted to talk about the War Powers Resolution. So | |
| just so long as I am clear, I believe that our Witness Hathaway | |
| said that we need to have systemic reforms to the War Powers | |
| Resolution. Because if we come up with a new AUMF, it still | |
| relies on the President to authorize the use of force. But with | |
| the gaps in the War Powers Resolution, I wanted to know what | |
| you might be proposing when you said systemic reforms. And then | |
| Congress currently lacks an effective mechanism to enforce the | |
| War Powers Resolution. So what options would we have, even with | |
| your suggestions of systemic reforms? | |
| Ms. Hathaway. Yes, I think this is exactly right. So if we | |
| are going to repeal and replace the AUMFs, we want to also be | |
| thinking about the War Powers Resolution because, as Professor | |
| Goldsmith, for instance, rightly said, when you repeal the | |
| AUMFs and replace them with a more narrow authority, you still | |
| have some Article II authority for the President to act. And | |
| that should be governed, the reporting process for that should | |
| be governed by the War Powers Resolution. | |
| And so I mentioned in my testimony a few things that I | |
| think are essential. One is we should define ``hostilities.'' | |
| Right now, the War Powers Resolution hinges so much on the term | |
| ``hostilities,'' and it never defines it. And this has been the | |
| source of real difficulty for Congress because that then has | |
| left the door open for executive branch lawyers to interpret | |
| that term in ways that essentially mean the War Powers | |
| Resolution never applies or very rarely applies. | |
| So one of the real low-hanging fruits here is define the | |
| term ``hostilities.'' And I think one way to do that is to | |
| define it to entail any instance that involves lethal | |
| operations. And I think that there is a kind of growing | |
| consensus that that would be an appropriate way to define it. | |
| And then second, I think an automatic funding cutoff, which | |
| is not currently included in the War Powers Resolution, is | |
| crucial, one that Congress doesn't have to separately vote on, | |
| but that automatically enters into force if there is an act of | |
| force that exceeds the authority in an existing AUMF or in the | |
| War Powers Resolution. So that Congress doesn't have to vote to | |
| terminate funding, which then goes to the President, and the | |
| President can veto it. And then Congress is stuck not being | |
| able to overcome that veto with a veto-proof majority. So I | |
| think that is a second element. | |
| And then the third is some way of pushing back in the court | |
| if all the rest of it fails. And we have had some good | |
| decisions in the last few years that allow Congress to have | |
| standing to challenge decisions of the President. And I think | |
| Congress can take advantage of that by authorizing Members of | |
| Congress, either a committee or legal representatives, to file | |
| suit on behalf of Congress or one or both Houses, if the | |
| President is acting in a way that exceeds his authority. | |
| So those are at least a few steps that could be taken to | |
| really make a big difference. | |
| Ms. Bass. What do you think about how we define a threat? | |
| For example, the strike that took place in Iraq to the Iranian | |
| general, how do you define--I mean, I do not know what the | |
| imminent threat. Yes, he was a bad guy, but how do we define | |
| that to justify a strike? | |
| Ms. Hathaway. Yes, I think you are absolutely right to | |
| point to that as a really difficult question. Now obviously I | |
| am not privy to the classified briefings that you all are privy | |
| to. But from what has been publicly disclosed, there has not | |
| been a really strong case made that there was an imminent | |
| threat posed, and therefore, that this strike was necessary to | |
| address a threat. Now really that should be up to Congress to | |
| assess. Part of the difficulty here is the President didn't | |
| seek advance authority from Congress, didn't even notify | |
| Congress in advance that a strike was going to happen. And so | |
| that is a kind of strike really that a President should be | |
| notifying Congress of in advance and seeking authority to take, | |
| unless it falls within one of the existing authorities. | |
| But because he was a general in the Iranian army, not in | |
| the Iraqi government---- | |
| Ms. Bass. Thank you. | |
| Ms. Hathaway [continuing]. It is really not appropriately | |
| covered under the 2002 Authorization for Use of Military Force, | |
| which is about a threat posed by Iraq, not by Iran. And he was | |
| an Iranian government official, not an Iraqi government | |
| official. And that is why that really is not an appropriate use | |
| of the 2002 AUMF. | |
| Ms. Bass. Where do covert actions fall in this? | |
| Ms. Hathaway. So there are separate authorities, as you | |
| know, under Title 50, for covert operations. The President has | |
| to make a finding, and those are reported to the intelligence | |
| committees. And so that is a separate process that Congress has | |
| provided for under a separate set of statutory authorities. | |
| I do think there's real questions about what we call the | |
| Title 10/Title 50 kind of tradeoff, or the Title 10/Title 50 | |
| blurring of the lines that I think Congress should be briefing | |
| pretty carefully, but that is covered under a different set of | |
| authorities. | |
| Ms. Bass. Yes, it does seem like---- | |
| Chairman Meeks. The gentlelady's time has expired. | |
| Ms. Bass. OK. Thank you. | |
| Ms. Hathaway. Thank you. | |
| Chairman Meeks. I now recognize Representative Ann Wagner | |
| of Missouri, the vice ranking member of the full committee, for | |
| 5 minutes. | |
| Mrs. Wagner. I thank you, Mr. Chairman, for organizing our | |
| hearing today. | |
| And let me go straight to Mr. Goldsmith. If either the 9/11 | |
| or the Iraq AUMF were repealed or replaced, how would terrorist | |
| groups like Al Qaeda and its affiliates, ISIS, Iran and its | |
| proxies, and other U.S. adversaries, respond, do you think? | |
| Mr. Goldsmith. That depends on entirely how you replace it. | |
| And so it is very hard to answer in the abstract. So Congress | |
| has been in recent years appropriating in support of the | |
| current conflict, which basically involves an authorized war | |
| against Al Qaeda, the Islamic State, the Taliban, and a few | |
| associated forces. I take it that is a measure of congressional | |
| consensus, at least about what the core of legitimate | |
| authorities are. So if you reaffirm those authorities, I do not | |
| think you would have any impact there. | |
| As for the Iranian proxies, if you included the Iranian | |
| proxies within your AUMF, which you could do, that would make | |
| them more squarely--that would put Congress behind that effort. | |
| Otherwise, you are leaving it to Article II, which is how the | |
| President basically, with a little bit of assistance from the | |
| 2002 AUMF, has been conducting those operations. | |
| Mrs. Wagner. Following up on it, Mr. Goldsmith, I | |
| understand some have proposed the replacement AUMFs to support | |
| ongoing efforts abroad to prevent future terrorist attacks on | |
| the U.S. homeland. I imagine a replacement counterterrorism | |
| AUMF would capture the groups currently subject to targeting | |
| under the 2001 AUMF--Al Qaeda, the Taliban, ISIS, and so forth. | |
| Are there other terrorist groups that pose a serious threat to | |
| the United States, but do not have enough of an Al Qaeda or | |
| Taliban nexus to qualify as, say, associated forces under the | |
| 2001 AUMF? And if so, is the threat urgent enough that they | |
| should be included in any new AUMFs? | |
| Mr. Goldsmith. Well, I am obviously not privy to the | |
| classified intelligence that would give an answer to that | |
| question. All I know is, basically, what I read in the | |
| newspapers and what I see the government telling us. | |
| The most obvious example to me of a group like that are the | |
| Iranian proxy militias that we have been in very low-level | |
| skirmishes with for quite a while now. I think it is a very, | |
| very consequential question whether Congress should extend | |
| force to them. That obviously has huge implications. But that | |
| seems to be the main, based on what I have heard from public | |
| reporting, that seems to be the main area of hostilities that | |
| do not fall against the terrorist organizations that do not | |
| fall within the AUMF. | |
| Mrs. Wagner. Yes, I agree, and that is part of my next kind | |
| of followup here about the Iranian-sponsored proxy militias | |
| currently active in Iraq. How do existing AUMFs affect Iran's | |
| activities, I guess, against the United States in this regard? | |
| Mr. Goldsmith. So I do not believe the existing AUMFs have | |
| any real impact on that. President Trump invoked the 2002 AUMF | |
| when he targeted Soleimani. But as I understand it--and again, | |
| this is all very opaque, and this is one of the problems; the | |
| government is very opaque about what the groups are and what | |
| the authorities are--as I understand it, those encounters are | |
| justified under Article II, often in response to attacks on | |
| U.S. forces, which is at the core of what Article II would | |
| allow. So that's my main, my basic understanding of that. | |
| Mrs. Wagner. Is it appropriate, Mr. Goldsmith, for an AUMF | |
| to exclude certain types of force; for example, enduring | |
| offensive ground combat operations? | |
| Mr. Goldsmith. Whether it is appropriate is Congress' | |
| decision. And I am not trying to dodge this. It is Congress' | |
| decision, based on what the strategic needs of the United | |
| States are. Whether it is constitutional, yes, the answer is | |
| clearly yes. There are examples of that in U.S. history. | |
| Mrs. Wagner. Ms. Hathaway, technological advances like | |
| cruise missiles and armed drones allow us to project force | |
| without significant risk to our soldiers. Ms. Hathaway, what | |
| are the legal implications of this technological shift, do you | |
| think? | |
| Ms. Hathaway. That is a great question, and I think it is a | |
| really important point for us to think about, which is that | |
| there used to be much more significant limits on our capacity | |
| to project force around the world, just the physical limits of | |
| getting people around the world and moving troops around the | |
| world. Now you have drones in the air for weeks on end, and you | |
| can effectively put that force anywhere in the world. This | |
| means the President can project a great deal of force almost | |
| anywhere in a very short period of time. | |
| And so even at the time the War Powers Resolution was | |
| enacted, the idea that 60 days was a sort of time limit for the | |
| President to act seems like that was not very long for the | |
| President to get the forces together. To move them, to muster | |
| them---- | |
| Mrs. Wagner. Right. | |
| Ms. Hathaway [continuing]. You know, that took 60 days. Now | |
| you can wage a whole war in 60 days because you have already | |
| got the forces effectively mustered and capable of engaging in | |
| force pretty much anywhere in the world. So this is an argument | |
| for at least thinking about whether that 60-day period remains | |
| an appropriate one in the modern era. | |
| Mrs. Wagner. I fully---- | |
| Chairman Meeks. The gentlelady's time has expired. | |
| Mrs. Wagner. And I know my time has expired, Mr. Chairman. | |
| Thank you for your indulgence. I hope that we can consider that | |
| as we move forward. Thank you. | |
| Chairman Meeks. Thank you. | |
| Unfortunately, Mr. Bauer has a previous arrangement that we | |
| knew about. He will be excused. | |
| We want to thank you, Mr. Bauer, for your testimony today, | |
| and I know that the committee will be back in touch with you | |
| for your expertise as we dig deeper into this issue dealing | |
| with AUMFs and war powers. Thank you very much for your | |
| testimony. | |
| Mr. Bauer. Thank you, Mr. Chairman. Thank you. | |
| Chairman Meeks. I now recognize Representative David | |
| Cicilline of Rhode Island for 5 minutes. | |
| Mr. Cicilline. Thank you, Chairman Meeks, and thank you to | |
| you and Ranking Member McCaul for calling this really important | |
| hearing. | |
| And thank you to our witnesses. I am really grateful that | |
| the committee is gathered to chart the way forward on ending | |
| decades-old conflicts and reestablishing congressional | |
| authorization as the legal basis for the United States using | |
| force abroad. | |
| The costs of blank-check force authorizations enacted | |
| decades ago are sobering, and Brown University actually has | |
| done some really good work at the Watson Institute about the | |
| real costs of war. The trillions of dollars spent and the | |
| burden shouldered by our men and women in uniform and their | |
| families is too great, often, to rationalize. | |
| And so there is really no good reason, according to the | |
| testimony of our witnesses, as to why Authorization for the Use | |
| of Military Force granted in 1991, some 30 years ago, for the | |
| narrow purpose of launching Operation Desert Storm, is still in | |
| effect. There is also no good excuse or reason as to why an | |
| authorization of force for conflict in Iraq, granted in 2002, | |
| nearly two decades ago, is still in effect, when the merits of | |
| that authorization were deemed to have no basis in fact long | |
| ago and after the U.S. declared a formal end to its mission in | |
| 2011. | |
| So I guess my first question for both of our witnesses is, | |
| do you agree then, am I creating the consensus of the | |
| witnesses, that we should repeal the authorization from 1991, | |
| to repeal the authorization from 2002, and repeal and replace | |
| the authorization from 2001? Is that right, Professor Hathaway? | |
| Ms. Hathaway. That is my view, yes. | |
| Mr. Cicilline. And, Mr. Goldsmith? | |
| Mr. Goldsmith. Yes, sir, that is my view. | |
| Mr. Cicilline. And I believe it is Mr. Bauer's view, too, | |
| if he were here? | |
| Mr. Goldsmith. It is, yes. It is his view as well. | |
| Mr. Cicilline. OK. And so my question is, with respect to | |
| the reauthorization of the 2001, Professor Hathaway, you have | |
| spoken about the concern that you have about associated | |
| entities--I haven't got the exact language--but that would be | |
| used by the executive branch to basically be a blank check and | |
| they would simply argue this is an associated force. | |
| And so Mr. Goldsmith, my question is: what about that | |
| argument? Doesn't that, in fact, present the potential of | |
| recreating a scenario in which Congress is basically cut out of | |
| the process by crafty White House lawyers and an overreaching | |
| executive? And aren't we better off requiring that the enemies | |
| be identified and creating an expedited way to add to that | |
| list, if the President considers it appropriate? | |
| Mr. Goldsmith. A two-part answer, sir. One is, these | |
| terrorist organizations and terrorists do not fall into neatly | |
| prepackaged boxes. It is often very difficult to tell, even | |
| with significant intelligence capabilities, what relationships | |
| are and the like. And so if we stopped it and said only these | |
| boxes count, it would be very easy for these organizations to | |
| reconstitute themselves in different boxes. That is why we, Bob | |
| Bauer and I, propose having an associated forces provision, but | |
| I also agree with you that it is subject to abuse. We do not | |
| have any insight, or at least the public doesn't have any | |
| insight, into how the government makes these determinations. We | |
| believe, following a proposal by Senator Kaine four or 5 years | |
| ago, that the President should be required to, within 48 hours, | |
| report what the associated forces are. Congress would have an | |
| expedited opportunity to debate them. I do not believe that the | |
| Congress is very often going to overturn those debates. | |
| I am also not sure, setting aside the Islamic State, that | |
| the executive branch has been terribly promiscuous in this. It | |
| is very hard to tell. So we think it is necessary, because of | |
| the varying amorphous nature of these terrorist organizations, | |
| that we would deal with the problem you identify with a very | |
| quick ex post notice requirement. | |
| Mr. Cicilline. And would you also recommend that we include | |
| a definition for associated forces so that we constrain it in | |
| some appropriate way? | |
| Mr. Goldsmith. I do. What we propose is the definition that | |
| basically the U.S. Federal Courts have been using and that | |
| three Presidents have been using in defining associated forces | |
| as co-belligerents. There are variations in the language. You | |
| could tighten it up, if you wanted. You could make it looser. | |
| That basic definition has a lot of practice under it. Again, it | |
| can get out of control. I do not believe, to my knowledge, that | |
| it has really gotten out of control, but I think that there is | |
| a worry that it could. And that's why there should be ex post | |
| reporting. | |
| Mr. Cicilline. Thank you. | |
| And Professor Hathaway, with respect to the War Powers Act, | |
| you already testified about the difficulties with the undefined | |
| term of ``hostilities'' that grants the President enormous | |
| power and tremendous flexibility. Do you have suggestions for | |
| us, as we think about reforms of the War Powers Resolution, as | |
| to how we should define that term? | |
| Ms. Hathaway. Yes. Well the most important thing is you | |
| give as precise and clear a definition, honestly. There is a | |
| range of different possibilities as to what the appropriate | |
| answer to that question would be. There is a proposal that has | |
| been developed--and I know it has been circulating--to define | |
| that as any operations where the U.S. is engaged in, or | |
| potentially subject to the use of lethal force. That seems like | |
| a fairly clear, bright line, and I think an appropriate one. | |
| There may be other alternatives, but that strikes me as a good | |
| one. | |
| Mr. Cicilline. Thank you. | |
| Mr. Chairman, I want to yield back. But before I do, I want | |
| to acknowledge your courage in beginning this conversation. I | |
| think if we are all honest, Congress has benefited from our | |
| failure to engage in this work because we have left the | |
| difficult decisions to the executive branch, and we have | |
| complained about it, but we have never done anything about it. | |
| And I really compliment you for taking on this issue. I think | |
| it is critical for our country and for the world. And I salute | |
| your leadership, and yield back. | |
| Chairman Meeks. Thank you, Mr. Cicilline. | |
| I now recognize Representative Brian Mast of Florida for 5 | |
| minutes. | |
| Mr. Mast. Thank you, Chairman. | |
| And thank you to our witnesses for your answers and your | |
| testimony. | |
| And I want to go to the testimony for each of you, which I | |
| read, but where I saw something missing, and that is where I | |
| want to get to it. We heard a lot of things listed numerous | |
| times. Specify the enemy. It has been one of the biggest points | |
| of this entire debate that we have been having today. Specify | |
| the enemy. We talked about mechanisms to decide when a conflict | |
| is going to be over or how to add associated groups, or whether | |
| we could detain enemies, or in what way, or how we keep | |
| Congress informed. | |
| There is something that I heard very little conversation of | |
| from our witnesses, and I would like to have you all elaborate | |
| on it, in whatever order you feel like piping up and speaking. | |
| I heard no emphasis on articulating the end State. What is the | |
| political objective to be achieved through that use of force, | |
| whether it is in Iraq, whether it is in Afghanistan, whether it | |
| is in Syria, whether it is in Bosnia, Somalia, Kosovo, Panama, | |
| Grenada, Vietnam, Europe, you name it? What is that end State? | |
| And I was curious from you all why I hear very little on end | |
| State. | |
| Ms. Hathaway. I will say a brief word about that. So I | |
| mentioned very briefly in my testimony, and in my written | |
| testimony, that one of the key elements of defining the enemy | |
| is also defining what your strategic objective is. And I think | |
| this is such an important point that you raise, because when | |
| you are fighting a non-State actor group, they are not going to | |
| sign a treaty with you to bring an end to the conflict. That is | |
| not going to be the end point of the war, as traditionally was | |
| the case when we were engaged in wars with States. And the end | |
| result of the war cannot be that we have killed everybody on | |
| the other side. That is (a) not realistic, and (b) probably not | |
| an appropriate aim either. | |
| So I do think this is exactly the kind of conversation that | |
| we ought to be having, is what is the end of these military | |
| operations? And that part of what Congress can do is be | |
| engaged. Part of the reason for this reauthorization | |
| requirement is that that keeps Congress engaged in that | |
| conversation, having regular reporting back to Congress as well | |
| as to what has been the progress, and to what end. That is | |
| exactly the question to be asking. And so I think you are | |
| completely right to raise that concern, and I think we haven't | |
| had enough of that conversation in the last 20 years. | |
| Mr. Mast. Mr. Goldsmith, do you want to add anything? | |
| Mr. Goldsmith. I will just say briefly, I agree with | |
| Professor Hathaway. This is one of the most important issues | |
| that Congress needs to weigh in on. Presidents are risk-averse; | |
| Congress is risk-averse. President Obama and DoD General | |
| Counsel Jeh Johnson actually outlined a vision in general terms | |
| of what the end of the war looked like, which may be one that | |
| Congress should look at. It is basically a State where, as | |
| Professor Hathaway says, you haven't killed every threat; you | |
| haven't eliminated every threat. It is a dangerous world; you | |
| cannot do that. | |
| The question is whether you have diminished the threat such | |
| that you can disengage from what has been endless war, while | |
| also at the same time not allowing the threat to reappear. That | |
| is the challenge. And frankly, that has been the big challenge | |
| for 20 years after 9/11. And frankly, I do not know of a whole | |
| lot of people who have a great answer to that question. | |
| Mr. Mast. Mr. Goldsmith, let's have a little conversation | |
| here. You said something important. I do not want to cut you | |
| off, but you said that the threat will not reappear. And that | |
| seems to me | |
| [inaudible] and we should be concerned about that. No | |
| doubt, it has to be taken into the calculation, but it is one | |
| of those difficult things to ever reach, given the creativity | |
| of people, right? I am sure we could all have that debate. | |
| I would take the last minute--does somebody have something | |
| they wanted to offer here? I heard somebody. Maybe not. | |
| All right. So I would take this last 40 seconds and just | |
| give it to any of my colleagues, if they wanted to venture out | |
| there and say that this is what they believe the end State for | |
| Afghanistan should be. | |
| Chairman Meeks. Mr. Mast, I will tell you it is something | |
| that Congress needs to discuss. That is what this is about. So | |
| that we are engaged and not just leaving it to the executive | |
| branch. So it is something that there has to be a conversation, | |
| so that we are involved in it--the beginning, the middle, and | |
| the end. Congress should be working there. | |
| So I do not know if there is a specific definition---- | |
| Mr. Mast. I will reclaim, Mr. Chairman. I appreciate it. I | |
| totally agree with what you are saying. I just wanted to close | |
| out, I just wanted to hear if any of my colleagues had a | |
| speculation on what that end State should be. I look forward to | |
| talking to you about it, Mr. Chairman. Take care. | |
| Chairman Meeks. Thank you. The gentleman yields back, and I | |
| thank you for that. | |
| I now recognize Representative Dina Titus from the great | |
| State of Nevada for 5 minutes. | |
| Ms. Titus. Thank you, Mr. Chairman. It has been a very | |
| interesting debate this morning. | |
| We have heard a lot of technical and legal discussion. I | |
| want to kind of look at the big picture. I recall from all | |
| those years I spent teaching third-level science at UNLV that | |
| Congress enacted the War Powers Resolution basically for three | |
| reasons: to take back power that it had lost as an institution | |
| to the executive, going back to World War II and FDR's New | |
| Deal; tying Nixon's hands, and reassure the public that there | |
| would never be another Vietnam. | |
| So I would ask our witnesses to kind of address it in that | |
| historical-sociological perspective. How has Congress changed, | |
| both as an institution and vis-a-vis the executive, over the | |
| years since this was enacted? What is the public's perception | |
| of Congress' inability or impotence when it comes to this area? | |
| How has partisan politics shaped this whole debate? And what | |
| about Congress just getting comfortable--somebody mentioned | |
| risk-averse--having taken the monkey off its back, so that they | |
| can now put the responsibility and the blame on the executive? | |
| Mr. Goldsmith. Do you want me to start with that? | |
| Ms. Titus. For you both. | |
| Mr. Goldsmith. Oona, do you want to go first? | |
| Ms. Hathaway. You go ahead, Jack. | |
| Mr. Goldsmith. So basically that is a good description of | |
| what the War Powers Resolution sought to achieve. It has been | |
| an almost complete failure. It has been an almost complete | |
| failure for several reasons. One, primarily--well not even | |
| primarily--one is that the executive branch has interpreted | |
| ``hostilities'' to not require implication of the War Powers | |
| Resolution in many modern circumstances where it conducts armed | |
| conflicts. Another is that the Congress said explicitly in the | |
| War Powers Resolution that appropriations would not count as | |
| authorizations, but the Office of Legal Counsel from the | |
| Justice Department found a way to flip that on its head. | |
| So all of the efforts--another one, I will just mention one | |
| more. The 60-day window, which has been interpreted by the | |
| Office of Legal Counsel to actually recognize the President's | |
| full-blown constitutional authorities in that window. So | |
| basically, Congress has basically been on its heels since it | |
| passed that; the executive has interpreted it away. | |
| On the Congress, I tend to agree with your analysis of | |
| Congress. Basically what has happened is we had a big | |
| engagement by Congress in the 1970's, and we have had a couple | |
| of big engagements since then, not nearly like we had in the | |
| seventies. But basically, with regard to 9/11 and all sorts of | |
| other unilateral Presidential uses of force, many in Congress | |
| have complained, but Congress, as a body, has gone along with | |
| it. Twice in the last few years, remarkably, with regard to | |
| Yemen and with regard to Syria, Congress took significant | |
| steps, but on the whole, Congress has basically been happy, it | |
| seems, to sit back, watch the President do what he is doing, | |
| criticize him if it goes bad, appropriate if it thinks it is | |
| going well. | |
| And there have been lots of hearings like this about what | |
| Congress should do. Indeed, I have been to these hearings for | |
| 14 years now. But the Congress hasn't done anything yet. So I | |
| am very encouraged that there seems to be movement toward | |
| Congress re-engaging. | |
| Ms. Hathaway. And I will just say I agree with all of that. | |
| And I would add to that the decision at the Supreme Court to | |
| strike down a legislative veto, and the War Powers Resolution | |
| included the legislative veto provision that would have given | |
| Congress a way to respond to uses of force. But once that got | |
| struck out, it made it much more difficult for Congress to | |
| press back; and the fact that appropriations, these budgets | |
| have become so huge that Presidents can effectively fund whole | |
| wars out of existing budgets. The Libya operation, for | |
| instance, was funded entirely out of existing funds. The | |
| President didn't have to come to Congress to seek additional | |
| funding to carry out that operation. | |
| And so this is a really important moment. This has been a | |
| moment that has been a long time coming. I am hopeful that | |
| there seems to be some desire on the part of Congress to take | |
| action, to press back, to readjust those authorities, to | |
| reclaim some of the constitutional role that it has ceded to | |
| the President around the decisions to use force, which really | |
| is among the most consequential decisions that our government | |
| makes. | |
| Ms. Titus. How do you think this will affect maybe our | |
| diplomatic relations, both with allies and enemies, if they see | |
| this action being taken? Will it make much of a difference? | |
| Ms. Hathaway. Well I think that, on the whole, I actually | |
| think that it would be positive because there is a sense that | |
| these decisions are going to be democratically enacted, that | |
| they are going to be decisions that the United States makes | |
| consistent with the Congress. And therefore, the American | |
| people are going to be behind any operations that the United | |
| States undertakes. So I think, if anything, it is likely to | |
| have a positive effect rather than a negative one. | |
| Ms. Titus. Right. That is encouraging. | |
| Chairman Meeks. The gentlelady's time has expired. | |
| Ms. Titus. Thank you, Mr. Chairman. | |
| Chairman Meeks. I now recognize Representative Mark Green, | |
| the ranking member of the Subcommittee on the Western | |
| Hemisphere, Civilian Security, Migration and International | |
| Economic Policy, for 5 minutes. | |
| Mr. Green. Thank you, Chairman Meeks and Ranking Member | |
| McCaul. | |
| And thank you to our witnesses for being here today. I | |
| really appreciate it. | |
| Under Article I of the Constitution--and everybody has said | |
| this today, but I mean it just bears repeating--Congress has | |
| the power to declare war, to raise funds for the military, and | |
| to make rules for the military. Article II makes the President | |
| the Commander in Chief. It is really that simple. | |
| Unfortunately, over the years, Congress has abdicated its | |
| constitutional authority to the executive branch. The President | |
| may be the Commander in Chief, but Congress, and Congress | |
| alone, has the power to authorize the use of force. | |
| And while I believe we should replace the AUMFs, we must | |
| narrowly tailor them to current terrorist threats as well, and | |
| this should be done in a bipartisan manner through regular | |
| order, and only after thorough due diligence is done. And that | |
| includes hearings with the White House, DoD, the intelligence | |
| community, and our regional partners. | |
| What we should not do is make a political statement by | |
| jamming through a standalone 2002 AUMF repeal without any | |
| replacement whatsoever. This would unnecessarily inhibit our | |
| troops from responding to our national security concerns in the | |
| region. There are terrorist groups active in Iraq that are not | |
| covered under the 2001 AUMF because they are not an associated | |
| force of Al Qaeda, the Taliban, or ISIS. | |
| And I served 3 years of duty in the Middle East. So I know | |
| firsthand that terrorist groups are crafty, they are adaptive, | |
| transnational. If they can take advantage of a repeal of the | |
| 2002 AUMF, they will. We do not want them to thwart our | |
| protection just by changing their name or stepping across some | |
| border. | |
| And I say this with my party out of the White House. We | |
| cannot let a turf war between Congress and the executive branch | |
| interfere with our national security objectives and the safety | |
| of our constituents. And I urge my colleagues to remove the | |
| standalone 2002 AUMF from repeal from Thursday's markup and to | |
| work with our side of the aisle, and their side of the aisle | |
| and the Administration, to craft a balanced, bipartisan | |
| solution. | |
| My question, in 2015, several months after he began | |
| operations against ISIS, pursuant to the 2001-2002 AUMFs, | |
| President Obama proposed a new draft AUMF that would have | |
| specifically authorized him to use force against ISIS, except | |
| for, and I quote, ``enduring offensive ground combat | |
| operations,'' end quote, which is expressly excluded. But my | |
| question is, should AUMFs get into managing the conduct of the | |
| hostility itself, identify the enemy, and then let the | |
| President prosecute the hostilities as the President sees fit? | |
| And really anyone can tackle that question. | |
| Ms. Hathaway. I can lay in on this because I think Jack has | |
| effectively already answered it. And I unfortunately agree with | |
| his view on this, which is that it really is up to Congress to | |
| make that determination as to whether and how to authorize | |
| force. So there is no constitutional prohibition on that, but | |
| as a policy matter, it is up to Congress as to whether that is | |
| a limitation that it thinks is appropriate to put in place. And | |
| it is the basis of discussions among this committee and others | |
| that would make that determination. There is no constitutional | |
| bar to it, but I have certainly heard and understand that there | |
| are significant policy objections to that, and those are | |
| appropriately a matter for Congress to debate and discuss and | |
| make a determination about. | |
| Mr. Green. So you guys, I may have heard a little bit of an | |
| issue. If I am asking a question that has already been | |
| answered, I apologize. But this whole notion of associated | |
| force, is that something that has to be articulated every time | |
| by Congress, or can it be broad enough at the beginning? Is | |
| that term, in and of itself, enough? | |
| Mr. Goldsmith. So this is something I believe that | |
| Professor Hathaway and I might disagree on. My view is that | |
| Congress should define it basically in accordance with the way | |
| it has been defined by courts and the executive branch. And it | |
| should do its best to identify current associated forces, and | |
| it should force the President, very soon after he makes another | |
| determination of an associated force, to notify Congress and | |
| have special procedures for debate on that issue. | |
| So I do not think Congress needs to ex ante authorize | |
| associated forces. And the main reason I think that is because, | |
| as you said and as others have said, these terrorist | |
| organizations, it is very easy for them to move from one box to | |
| another, and they do not actually self-identify in boxes-- | |
| oftentimes do not self-identify the way we like to put them in | |
| boxes. | |
| So I do think the President needs a little bit of | |
| flexibility here, but I would insist--and I think Congress | |
| should insist--on knowing about it and having a very quick | |
| tally and weighing in against it, if it thinks it is | |
| inappropriate. | |
| Mr. Green. Thank you. | |
| And, Mr. Chairman, I think my time has expired. I yield. | |
| Chairman Meeks. The gentleman's time expired. | |
| I now recognize Representative Susan Wild of Pennsylvania | |
| for 5 minutes. | |
| Ms. Wild. Thank you, Mr. Chairman. | |
| I would like to direct my question to Ms. Hathaway. In | |
| February, the President ordered a strike against militia groups | |
| operating in Syria, a country in which Congress has never | |
| authorized any military action. And he cited his authority | |
| under Article II of the Constitution, presenting this action as | |
| a self-defense measure taken in response to the February 15th | |
| attack on U.S. troops and contractors in Iraq, in which a | |
| servicemember was wounded and a contractor tragically lost his | |
| life 10 years earlier. President Biden has since said that he | |
| supports reforming the 2001 and 2002 AUMFs that are still in | |
| effect, but the President did not cite an AUMF in this case | |
| involving Syria. So my question to you is: what effect would | |
| repealing and replacing those two AUMFs have on a situation | |
| like the strike that was ordered? | |
| Ms. Hathaway. That is a great question. And the answer is | |
| it wouldn't have any effect, because as you rightly pointed | |
| out, in both the Administration's war powers letter and in the | |
| Article 51 letter filed with the United Nations, there was no | |
| citing of any statutory authority. The authority that was cited | |
| was the President's own existing authority under Article II to | |
| defend the troops. | |
| Now we can assess and raise questions as to whether that is | |
| appropriate, but that was the only authority cited. So whatever | |
| we do with the AUMFs, whatever you do with the AUMFs, is not | |
| going to have any impact on that kind of operation. | |
| Ms. Wild. So that leads into the second part of my | |
| question, which is following the strike, the Pentagon in a | |
| statement described it as being designed to send an unambiguous | |
| message that President Biden will act to protect American and | |
| coalition personnel. Obviously any attack on U.S. troops is | |
| unacceptable and demands a response. But it also seems | |
| important that Congress be consulted in formulating that | |
| response, particularly when there are as many potential | |
| consequences as there are in Syria. So based on the information | |
| you have, was the Administration responding to an imminent | |
| threat in this situation? | |
| Ms. Hathaway. So I have written about this. And I need to | |
| preface this by saying that, of course, I am not privy to the | |
| classified briefings that preceded the decision to make this | |
| strike. So it is hard for me to make a proper assessment as to | |
| whether, in fact, this is justified under self-defense. | |
| But in terms of the information that the Administration has | |
| made public, I and many other international lawyers and foreign | |
| relations scholars have raised serious doubts about whether the | |
| justification was sufficient. And thus far, the information | |
| made public has not put those doubts to rest. | |
| Ms. Wild. So what would you say should be done in a | |
| situation like this with attacks on our troops and a | |
| contractor? Granted, this was 10 days earlier that the strike | |
| had been taken. So do you believe that Congress should have | |
| been consulted with in the intervening time? | |
| Ms. Hathaway. I do think it would have been appropriate to | |
| consult with Congress. And I think this is a very complicated | |
| situation because the group that was targeted, at least what we | |
| are told, is a group that is closely affiliated with Iraqi | |
| forces. And so while they are Iran-supported, non-State militia | |
| groups, the group, at least one of them that has been | |
| identified, is actually formally incorporated into the Iraqi | |
| armed forces. And so we are providing support to the Iraqi | |
| government and Iraqi armed forces that is supporting and | |
| working closely with the very same non-State actor group that | |
| we are now taking strikes against. And that raises real | |
| questions as to whether there are alternative ways for us to | |
| address the threat through, for instance, using our influence | |
| with the Iraqi government as opposed to taking strikes in a | |
| totally different country, in Syria. | |
| And it was reported--but again, I cannot speak to the truth | |
| of the matter--that the reason we took this strike in Syria, as | |
| opposed to in Iraq, was for political reasons, because we | |
| didn't want to embarrass the Iraqi government. And that is not | |
| a kind of legal basis really for making a decision about where | |
| to use military force. | |
| Ms. Wild. Thank you. Mr. Chairman, I yield back. Thank you | |
| so much. | |
| Ms. Hathaway. Thank you. | |
| Chairman Meeks. Thank you. The gentlelady yields back. | |
| I now recognize Representative Andy Barr of Kentucky for 5 | |
| minutes. | |
| Mr. Barr. Thank you, Mr. Chairman. I appreciate you holding | |
| this very important hearing. | |
| And I really appreciate the testimony and expertise of our | |
| witnesses. It is a great discussion. And it reminds me a little | |
| bit of my constitutional law class in law school, but it is | |
| probably better than that. | |
| Let me ask you a question, to both of our remaining | |
| witnesses here that is kind of basic, a basic question. Does | |
| the President ever have the power under the Constitution to | |
| unilaterally authorize a military attack in a situation that | |
| does not involve stopping an actual or imminent threat to the | |
| nation? And answer that question irrespective of the War Powers | |
| Resolution. | |
| Ms. Hathaway. I do not believe so. In my view, the | |
| President only has unilateral authority to defend the Nation in | |
| the face of an imminent attack. Exactly how imminent it must be | |
| is a matter for some dispute, but the power is limited to a | |
| fairly narrow scope of self-defense. | |
| Mr. Barr. Professor Goldsmith. | |
| Mr. Goldsmith. I would tend to agree. I might define it a | |
| little bit more broadly than that. But the main problem with | |
| many of the Article II uses of force by the President in recent | |
| decades is that it has no self-defense justification; it is far | |
| removed from self-defense. And these are, in my view, the low- | |
| hanging fruit for War Powers Resolution reform. | |
| So, defining self-defense is a difficult question, and I | |
| think that you should do it, but there are lots of things that | |
| are obviously not self-defense where the President has been | |
| using force. | |
| Mr. Barr. This concept of anticipatory self-defense is a | |
| tricky one, and obviously the Founding Fathers couldn't | |
| envision the spectrum of threats that we face today. But I will | |
| be interested in a followup question. How does the declaration | |
| clause and the spending power limit the Commander in Chief's | |
| authority to conduct foreign relations as Commander in Chief if | |
| Congress doesn't exercise it? | |
| And in that context, let's go back to the Youngstown | |
| decision, Justice Jackson's analysis in the Steel Seizure Case. | |
| The way I look at this, Congress has really abdicated its | |
| authority in many of these cases. The President is operating in | |
| a zone of twilight, if you will. And congressional acquiescence | |
| has really given--and this is a bit of a self-criticism of the | |
| institution in which I serve--but this has given the President | |
| quite a bit of power. Do you agree that Justice Jackson's | |
| analysis in Youngstown applies in many of these contexts today? | |
| Ms. Hathaway. So I will say yes. The question is: how much | |
| authority does the President have to act on his own? So of | |
| course, Youngstown suggests the President, when Congress is | |
| silent, the President has the authority that he has on his own. | |
| And then we go back to the question of how extensive Article II | |
| authorities, in fact, are, if Congress has not rejected the | |
| President's action. And I think Jack and I both agree that it | |
| is not unlimited by any means, but you're right that Congress' | |
| silence has been interpreted in many instances to authorize the | |
| President to act more broadly than that. | |
| Mr. Barr. Professor Hathaway, can I followup on your | |
| suggestion about involving the courts now and providing a | |
| mechanism for Congress to push back in the courts? I appreciate | |
| that suggestion, but do judges really have the competency, | |
| putting aside the political question doctrine and | |
| justiciability, do judges really have the competency to make | |
| national security decisions? | |
| Ms. Hathaway. You know, they really already do. So this | |
| question gets raised all the time. And it is so striking to me | |
| that we think that somehow judges suddenly lose their capacity | |
| to make decisions when it comes to war powers questions. They | |
| are making the exact same decisions when it comes, for | |
| instance, to issues of detention. So they are interpreting the | |
| scope of the 2001 Authorization for Use of Military Force when | |
| they are making determinations about the scope of the | |
| President's detention authority, whether he can hold certain | |
| people on Guantanamo or not. | |
| And we have the FISA Court. The FISA Court is specifically | |
| made up of Article III judges whose whole job---- | |
| Mr. Barr. Fair point. | |
| Ms. Hathaway [continuing]. Is to make national security | |
| decisions. | |
| Mr. Barr. Fair points. | |
| Ms. Hathaway. So I do think they can, yes. | |
| Mr. Barr. Fair points. | |
| Final question on sunset. As you know, we are nearing a | |
| self-imposed deadline for withdrawal of our presence in | |
| Afghanistan. Are there any lessons from this? Do you all feel | |
| that our enemies in future engagements would take note of an | |
| end date on an AUMF, and then simply re-engage in hostilities | |
| after our forces have left? | |
| Ms. Hathaway. That is a fear that has been articulated. And | |
| I think that if it is understood as a reauthorization | |
| requirement, that there is no reason to believe that our | |
| enemies are going to see that as a sort of date certain end | |
| date. Congress is capable of acting to reauthorize. It does | |
| that in all kinds of circumstances. The NDAA is reenacted every | |
| year. So Congress is quite capable of reauthorizing, and I | |
| expect it would reauthorize on a regular basis. So I think that | |
| worry is not necessarily well placed. | |
| Chairman Meeks. The gentleman's time has expired. | |
| Mr. Barr. Thank you. | |
| Chairman Meeks. I now recognize Representative Dean | |
| Phillips of Minnesota for 5 minutes. | |
| Mr. Phillips. Thank you, Mr. Chairman. | |
| I have in my hand a bipartisan opinion piece that I | |
| coauthored in 2020 that appeared in The Washington Post | |
| entitled, ``We Differ in Our Politics; We Agree on Congress' | |
| Power to Declare War.'' Without objection, I move to enter it | |
| into the record, Mr. Chairman. | |
| Chairman Meeks. Without objection. | |
| [The information referred to follows:] | |
| [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] | |
| Mr. Phillips. Thank you, sir. | |
| As has been often stated in this hearing, it has been | |
| almost 20 years since Congress authorized the use of military | |
| force, and in those years it is clear the threat landscape has | |
| changed considerably. We are no longer at war with Saddam | |
| Hussein and the Iraqi government, which is why I wholeheartedly | |
| support repealing the 2002 AUMF, and the 2001 AUMF applies to | |
| Al Qaeda and its affiliates, which includes ISIS, of course, | |
| even though ISIS did not exist in 2001. Thus, I believe that | |
| the 2001 AUMF must be repealed and replaced with a new | |
| authority that accommodates our current security environment | |
| and addresses the specific--and I repeat, specific threats that | |
| we face today. | |
| In my estimation, multi-decade authorizations with little | |
| to no oversight from this Congress is as dangerous as it is | |
| unacceptable. And as we know, existing AUMFs neither include | |
| sunset provisions nor articulate a process for mandatory | |
| reconsiderations. | |
| So Mr. Goldsmith, my first question is to you. You mention | |
| the need for a sunset provision in future authorizations. My | |
| question is: do you believe such reconsiderations should be | |
| administered through mandatory reconsideration by way of | |
| expedited floor legislation or reauthorization termination or | |
| limitation, or should it be through a regular sunset provision | |
| that requires new affirmative authorizations, which of course, | |
| could create potential gaps in authorities at potentially | |
| crucial times? | |
| Mr. Goldsmith. I take the view, sir, that it should be a | |
| required reauthorization, that the authorization lapse after a | |
| particular period of time. I do not believe that that poses the | |
| threat it is often made out to be, for many reasons. | |
| One, Congress frequently is engaged in ongoing | |
| appropriations for various aspects of military conflicts. Those | |
| things come very close to the line before they are | |
| reauthorized. There is no signal sent about those. Those are | |
| much more consequential for stopping the use of force than a | |
| new authorization. Those do not pose any serious concerns, it | |
| seems. That is the first point. | |
| And the second point, I do not believe Congress would fail | |
| to reauthorize, absent the President's utter inability to | |
| justify what is going on, in which case it should not | |
| reauthorize. But, in the case that happened, the President does | |
| have significant Article II authorities. Now it is much better, | |
| significantly better, for him to rely on the AUMF and not | |
| Article II. But I think the threat of authorities lapsing is | |
| extremely exaggerated. | |
| Mr. Phillips. And, Mr. Goldsmith, in reference to the | |
| actual length of a sunset provision, you may have mentioned it | |
| earlier, but what do you believe is an appropriate standard | |
| length of time? | |
| Mr. Goldsmith. So, Bob Bauer and I propose two or 3 years. | |
| Mr. Phillips. Yes. | |
| Mr. Goldsmith. Senators Kaine and Flake--Senator Kaine, in | |
| 2018, proposed one 5-year and one 4-year. I think anything in | |
| that range; I mean I do not feel strongly about two, three, or | |
| four. I just think there needs to be a regular authorization | |
| where Congress is, more or less, always engaged in these | |
| issues. That is up to Congress on what the actual date is. | |
| Mr. Phillips. All right. Thank you, sir. | |
| The next question is about oversight. Section 3 of the War | |
| Powers Resolution States that, quote, ``The President in every | |
| possible instance shall consult with Congress before | |
| introducing United States Armed Forces into hostilities. . . | |
| .'' Yet Presidents, clearly, routinely fail to comply with this | |
| requirement, even with prior consultation, when it was | |
| possible. And furthermore, I should say, too, reporting | |
| requirements often require only that limited information be | |
| given to Congress. | |
| Do you believe the American people are best served by the | |
| President consulting Congress, when possible, before using | |
| military force? And if yes, how do you think Congress should | |
| respond to these violations, and what reforms should be | |
| considered to help ensure Presidents comply in the future? | |
| Mr. Goldsmith. So, yes, I believe it is vitally important. | |
| I believe that Presidents have interpreted away in many | |
| circumstances the consultation requirement. I think the | |
| consultation requirement should use language that is stricter, | |
| but the problem is that my old office in the Office of Legal | |
| Counsel has ruled that some of these requirements in this core | |
| military area are unconstitutional. | |
| But the last answer to your question is, Congress has | |
| extraordinary tools at its disposal to fight back against the | |
| executive branch, if it is willing to use them. It has not been | |
| willing to use them. From the appropriations context to the | |
| appointments context, to all sorts of other things that I know, | |
| when I worked in DOD, there is incessant conversation between | |
| DOD and the House and Senate Armed Services and Foreign | |
| Relations/Foreign Affairs Committee. So, you have many pressure | |
| points to bring to bear, if you want to punish the President | |
| for not complying with the law, if you can gather the will to | |
| do so. | |
| Mr. Phillips. All right. Thank you, sir. | |
| If I might just close, Mr. Chairman, the article I | |
| referenced, the opinion piece, was coauthored by | |
| Representatives Perry and Spanberger, of course, who serve as | |
| colleagues on this committee. The point of that piece was | |
| exactly the point of this hearing: that Members of Congress | |
| differ in political ideologies and priorities, but we cannot | |
| neglect our mandated responsibility in the Constitution to | |
| declare war, and I hope we can continue to do so on a | |
| bipartisan basis. | |
| With that, sir, I yield back. | |
| Chairman Meeks. The gentleman yields back. | |
| I now recognize Representative Peter Meijer of Michigan for | |
| 5 minutes. | |
| Mr. Meijer. Thank you, Mr. Chairman, Ranking Member, and | |
| our guests who are here today. And I just want to second what | |
| many of my colleagues have said about being appreciative for | |
| this opportunity to review the war powers and how vital this is | |
| in terms of Congress' Article I responsibilities. | |
| I served in Iraq with the Army. I spent time in Afghanistan | |
| in the humanitarian aid community. So, this is something that | |
| is also very personal. | |
| Mr. Goldsmith, I just want to quickly clarify something you | |
| said earlier. You mentioned that former President Trump had | |
| invoked the 2002 AUMF with regards to Qasem Soleimani and his | |
| killing. To clarify, he referenced that as a secondary | |
| justification, but invoked the Article II self-defense | |
| provision, is that accurate? | |
| Mr. Goldsmith. Yes, I said that several times. I agree. | |
| Mr. Meijer. Yes. OK. And I just wanted to also ask the | |
| group, are you aware of any military action taken after 2011 | |
| which was predicated on or solely predicated on the 2002 AUMF? | |
| Ms. Hathaway. No. When the President has cited it, both | |
| parties, it has been cited as sort of an add-on authority. | |
| There hasn't been an explicit public implication of the 2002 | |
| AUMF as the exclusive authority for any operation. | |
| Mr. Meijer. So, after the Iraq withdrawal, all military | |
| operations could have--that had secondarily referenced it could | |
| have taken place without the 2002 AUMF on the books? | |
| Ms. Hathaway. As far as is publicly available in terms of | |
| legal justifications that are made public, yes, absolutely. | |
| Mr. Meijer. And then, I want to set aside the 2001 AUMF, | |
| but go back to the other two AUMFs besides the 2001 and 2002 | |
| that are on the books. Is anybody aware, I would say after the | |
| death of Saddam Hussein, of any military operations that have | |
| been predicated on the 1991 Gulf War AUMF? | |
| Mr. Goldsmith. No. | |
| Ms. Hathaway. No. | |
| Mr. Meijer. And this is probably a little bit easier of a | |
| no. The 1957 Authorization for Use of Military Force during the | |
| Eisenhower Administration, after 1959, any military action that | |
| was taken predicated on that? | |
| Ms. Hathaway. No, definitely not. | |
| Mr. Goldsmith. No. And you do not need to stop there; they | |
| keep going. | |
| Mr. Meijer. So, I guess I'm trying to build out the fact | |
| that, if we repealed the 2002, the 1991, and the 1957, it would | |
| have had no tangible impact in any of our--you know, even | |
| specific to the 2002--any of our kind of modern challenges that | |
| we are facing today. | |
| But I want to also kind of drive at something that my | |
| colleague Ms. Bass said about the Title 10 versus Title 50 | |
| distinction. If we lived in a world where we didn't have the | |
| post-9/11 AUMF to begin with, wouldn't an operation like | |
| Neptune Spear to kill Osama bin Laden, could that have been | |
| authorized under Title 50 authorities, if there was a | |
| Presidential finding? | |
| Ms. Hathaway. Yes. In fact, that was a CIA operation. It | |
| was done under CIA authorities, even though it was DOD assets | |
| that were seconded to the CIA. | |
| Mr. Meijer. The sheep-dipping, kind of gray zone in that | |
| area. So, I think a lot of our concerns--and again, I share the | |
| concerns of many of my colleagues around the 2001 AUMF, and | |
| think we should be very intentional in how we look at reforming | |
| and moving past on that specific issue--but the other AUMFs on | |
| the books, do you think there is any reasonable concern that | |
| between the post-9/11 AUMF and the ability to invoke or to | |
| create a Presidential finding, and invoke kind of Title 50 | |
| authorities, that we would be hamstrung in adapting to threats | |
| that surpass Al Qaeda and associated forces? | |
| Ms. Hathaway. In my view--go ahead, Jack. | |
| Mr. Goldsmith. Go ahead. Go ahead, Oona. | |
| Ms. Hathaway. So, in my view, no, and I think that it would | |
| be wise to get these sort of lingering authorities off the | |
| books, just so they do not make mischief. They do not provide | |
| any legitimate authority, even though they are sometimes, at | |
| least the 2002 is sometimes inappropriately relied on. | |
| Mr. Goldsmith. I agree. | |
| Mr. Meijer. That was easy. Well, I appreciate the time, but | |
| I just want to, again, mention that I think this is well past | |
| time for us to be addressing these concerns, and to be not only | |
| looking forward at what Congress' role is under its Article I | |
| authorities, but also being very mindful of what is lingering | |
| out there, perform some acts of constitutional hygiene, so that | |
| we are both approaching where our responsibilities are to meet | |
| the evolving threats, not only of today, but of tomorrow, but | |
| ensuring it is done in a constitutional manner. | |
| And thank you, Mr. Chairman. I yield back. | |
| Chairman Meeks. The gentleman yields back. | |
| I now recognize Representative Ilhan Omar of Minnesota for | |
| 5 minutes. | |
| Ms. Omar. Thank you, Chairman. | |
| I wanted to start with Professor Goldsmith. In your New | |
| York Times op-ed yesterday with Samuel Moyn, you included a | |
| quote from President Obama I wanted to ask you about. President | |
| Obama said that a war fought--and I quote--``through drones or | |
| special forces could prove self-defeating and altering our | |
| country in troubling ways.'' | |
| And The Intercept reported over the weekend that, in 2020, | |
| Special Ops were deployed to 154 countries in the world. That | |
| is nearly 80 percent of the world where we have deployed | |
| Special Ops last year. | |
| Can you elaborate on what that assertion from President | |
| Obama was, why it would be self-defeating and how it could | |
| alter our country? | |
| Mr. Goldsmith. So, that statement was made in the | |
| conditional. The point of the argument was that if that was the | |
| case, if in fact the war on terrorism has become self- | |
| defeating, if it produces more costs than benefits, then | |
| Congress should seriously consider pushing back against the | |
| President even more, the global footprint, including Special | |
| Operations Forces, the President's legal authorities, and the | |
| like. | |
| I do not know whether it is true. I think that is what | |
| Congress needs to figure out. There are a whole range of views | |
| in our country about that, and a lot of it turns on information | |
| I do not have. It is a plausible argument. | |
| Ms. Omar. Yes, appreciate that. | |
| Professor Hathaway, I wanted to expand the conversation | |
| about our military engagement to include our partnership with | |
| other militaries and militias. Congress has put a number of | |
| laws on the books to ensure that we are not providing support | |
| to war criminals and security forces that commit human rights | |
| atrocities. But there seems to be a major loophole in that | |
| included with the 127e program. How could we more effectively | |
| block U.S. support, including the Department of Defense and | |
| State, as well as the CIA, from going to forces that commit | |
| atrocities? | |
| Ms. Hathaway. I think this is a very important point that | |
| you raise. So, increasing | |
| [inaudible] in which the U.S. Government engages in force | |
| around the world, is through these partnerships. Some of them | |
| are just merely assisting and providing training and the like | |
| to foreign military forces, but some of them we are much more | |
| deeply embedded, and in fact sometimes engaging in combat | |
| operations alongside partner forces. And we haven't always been | |
| as careful as we can and should be about ensuring that those | |
| operations are consistent with all of our obligations under the | |
| Geneva Convention, as well as the obligations of our partners | |
| under those laws as well. | |
| And I do think--and this is, obviously, a somewhat separate | |
| conversation--but I think you are right to raise it because, as | |
| we are engaging in much more partnered operations, we need to | |
| be thinking about what obligations we have for the actions our | |
| partners undertake. And if our partners, for instance, engage | |
| in international humanitarian law violations, we might want to | |
| be much more attentive to trying to ensure that that will not | |
| be the case and take action after the fact, if we learn of some | |
| violation, to try and put an end to it. | |
| Ms. Omar. I appreciate that. | |
| And are there any other witnesses that would like to chime | |
| in on that question? | |
| Mr. Goldsmith. There are no others. | |
| Ms. Omar. Well, I appreciate you all being here, and this | |
| is a really important conversation. Chairman, I think it sort | |
| of underscores that there is | |
| [inaudible] on the part of Congress to exercise its powers | |
| fully to create guardrails in this regard. And I do appreciate | |
| us taking a deeper look and, hopefully, figuring out how to | |
| create further guardrails in regards to this. | |
| Thank you. I yield back. | |
| Chairman Meeks. Thank you. The gentlelady yields back. | |
| I now recognize Representative Young Kim of California, the | |
| vice ranking member of the Subcommittee on Asia, the Pacific, | |
| Central Asia, and Nonproliferation, for 5 minutes. | |
| Mrs. Kim of California. Thank you, Chairman Meeks and | |
| Ranking Member McCaul. | |
| And I want to thank all of our witnesses for engaging with | |
| us today in this very timely policy and legalistic | |
| [inaudible]. | |
| As you know, the 2011 also revealed Congress' lack of | |
| resolve in enforcing the War Powers Resolution, even after | |
| President Obama's air campaign had blown past the 60-day | |
| limitation on unauthorized hostilities. On that single day, on | |
| June 24, 2011, the House considered two bills: one to authorize | |
| the Libya intervention and one to prohibit the use of funds for | |
| the Libya intervention. Both were voted down. Even though many | |
| Members voted consistently, taken as a whole, the House | |
| asserted its right to sit firmly on the fence. | |
| So, is there another way to totally require Congress to | |
| take a position, or does it ultimately depend on how deeply the | |
| electorate feels about a particular military engagement? | |
| Mr. Goldsmith. Well, there are some ways that you could | |
| alleviate that problem. One of the problems there was that the | |
| executive branch had interpreted a phrase in the War Powers | |
| Resolution, ``hostilities,'' to allow it to skirt through the | |
| 60-day limit, even for an administration that thought the limit | |
| was legally binding. You could reform the War Powers Resolution | |
| to have a much tighter trigger. I would prefer the use of armed | |
| conflict, which clearly that was, the Libya invasion, and that | |
| would have made clear that the level of force had to stop after | |
| 60 days. That is the first thing. | |
| The second thing is there are mechanisms where you can | |
| narrow the President's authorities and tie them, anything | |
| beyond those authorities, to an appropriation restriction. That | |
| would have a serious impact on the executive. | |
| But, third, at the end of the day--and this is your real | |
| point--it is really a question about whether Congress is going | |
| to, as it has done on a few occasions, but not very often, to | |
| stand up to the President, and really stand up and take a | |
| stand. The meaning of those two votes is that Congress doesn't | |
| like to take a position on war powers | |
| [inaudible]. And until, in my judgment, with respect to the | |
| Congress, until you overcome that fundamental problem--and I do | |
| not know how you do it--we are not going to have progress. | |
| Congress, as an institution, needs to assert its institutional | |
| prerogatives. | |
| Mrs. Kim of California. Well, thank you very much. | |
| Is there another witness who wants to chime in on that? | |
| Ms. Hathaway. Yes, I am happy to say a few words. I think | |
| the 2011 intervention in Libya sort of is an illustration of | |
| all the problems that we see with the War Powers Resolution. | |
| So, as Professor Goldsmith rightly said, the way in which the | |
| administration got around the 60-day limit is they interpreted | |
| the operation as not hostilities, and therefore, not subject to | |
| that 60-day limit, which, frankly, most people think is a | |
| pretty unrealistic interpretation of the term ``hostilities.'' | |
| But it was sort of interpreted in this very sort of flexible | |
| way to allow the President to continue to operate past 60 days. | |
| And then, add to that the fact that the reason Congress had | |
| to vote to reject or to withdraw funding was that the President | |
| already had all the money he needed. Because there are such big | |
| appropriations that the President didn't even have to come and | |
| ask for additional money; he had all the money he needed. So, | |
| that is different, for instance, from Kosovo, where even when | |
| the Kosovo operation happened, then the budgets weren't quite | |
| as big. And so, the President actually had to come and ask for | |
| money to engage in the Kosovo operation, which Congress gave | |
| it. In this case, Congress was put in the box of having to | |
| reject it, and even if it had successfully voted to pass a | |
| joint resolution to withdraw funding, that would have almost | |
| certainly been vetoed by the President, and then you would have | |
| had to again overcome the veto, which would have been nearly | |
| impossible. | |
| So, that is exactly what the problem is. Congress is in the | |
| position of not making decisions about using force, but whether | |
| to prevent it. | |
| Mrs. Kim of California. Ms. Hathaway, thank you so much for | |
| that. I would like to continue the questioning with you. | |
| I would like to ask for your view on the use of a | |
| preemptive AUMF that provides the President with war powers in | |
| advance of an expected conflict or as a means of deterrence. | |
| For example, one bill we introduced this Congress, the Taiwan | |
| Invasion Prevention Act, authorizes a preemptive AUMF for the | |
| President for a 5-year period in order to defend Taiwan in the | |
| event of an armed attack on its sovereign territory by China's | |
| PLA. In your view, is the process of preparing legislatively | |
| for future conflicts and drafting AUMFs useful, either | |
| practically as a means for legislative and strategical | |
| prudence, or as a means of deterrence? | |
| Chairman Meeks. Very short---- | |
| Ms. Hathaway. Very quickly---- | |
| Chairman Meeks. The gentlelady's time has expired. | |
| Ms. Hathaway. Yes. | |
| Chairman Meeks. But I will allow her to answer as long as | |
| it is briefly. | |
| Ms. Hathaway. Thank you. | |
| Yes, I think that that is entirely constitutionally | |
| appropriate. The question really is a policy one, is whether | |
| Congress wants to give the President that authority. But if the | |
| answer is yes, then it is absolutely entirely appropriate and | |
| constitutionally permitted. | |
| Chairman Meeks. Thank you. The gentlelady's time has | |
| expired. | |
| Mrs. Kim of California. I yield back. | |
| Chairman Meeks. I now recognize Representative Colin Allred | |
| of Texas for 5 minutes. | |
| Mr. Allred. Thank you, Mr. Chairman. | |
| And I want to thank our witnesses. I am sorry that | |
| Professor Bauer had to leave us. He is a former colleague of | |
| mine at my law firm, and I would have loved to question him as | |
| well. But many of my questions have already been asked. | |
| So, I do want to focus in, Professor Goldsmith, on you and | |
| Professor Bauer's discussion of measures related to nuclear | |
| forces and nuclear deployment, and how you think any | |
| consideration of the AUMF and of the War Powers Resolution | |
| should be used to encapsulate nuclear, as well as other | |
| technologies that were not a part of the original War Powers | |
| Resolution. And I am thinking here specifically of cyber | |
| warfare, which I think we are all recognizing has the potential | |
| to lead very quickly to other types of warfare, and that is | |
| probably the one that is most actively being engaged in right | |
| now with other great powers. | |
| Mr. Goldsmith. Yes, sir. With respect to cyber, Congress in | |
| the last four or 5 years has actually done a decent job--I | |
| cited this in, I think, the first footnote of my testimony--a | |
| decent job of engaging with the executive branch, authorizing | |
| forces, establishing reporting requirements, placing some | |
| modest limits. I do not know why that has happened, but maybe | |
| it is a consensus; maybe it is because it gets buried in the | |
| National Defense Authorization Act. But that process seems to | |
| be working better than some other ones in the war powers | |
| context. | |
| The nuclear issue is a very important issue. I view it as | |
| very hard and somewhat separate from this because these issues | |
| we have been talking about today are hard enough. Nuclear | |
| weapons are very hard because, in a nutshell, we have given the | |
| President, basically, carte blanche authority to use nuclear | |
| weapons, the most destructive weapons by far, without any | |
| limitation. And we kind of did that because the Presidents that | |
| held that responsibility seemed reasonable. President Trump | |
| questioned that for some people, especially with his threats to | |
| North Korea. And I think it is time to look at that again. We | |
| have a proposal that would basically tie the President's | |
| authority to use nuclear weapons exactly to the defense--to the | |
| nuclear deterrence policy. We explained in our book why we | |
| think that is the right approach. | |
| But my general answer to your question is that I believe it | |
| is hard enough, the things we have been talking about today; | |
| this is a separate kettle of fish to me, anyway. | |
| Mr. Allred. I agree. No, I agree, it is separate, and it is | |
| an important discussion. | |
| Professor Hathaway, do you have anything to add on cyber? | |
| Ms. Hathaway. Yes, just on the cyber, I mean, I agree with | |
| what Professor Goldsmith said, that Congress has been unusually | |
| active. And there were a number of gaps that existed in terms | |
| of the authority of Congress to oversee cyber operations, and | |
| it has filled a lot of those gaps. | |
| The one thing I will say, though, is that that gap-filling, | |
| because it happened through the NDAA, gave all the reporting to | |
| the Armed Services Committees. And so, you all are not getting | |
| any reporting on cyber operations. And I do think that that can | |
| be a problem because there may be instances where you are | |
| called on to make a decision about an Authorization for Use of | |
| Military Force; for instance, against Iran. And you may not | |
| know what either our capabilities or activities are when it | |
| comes to the cyber field because you will not have been briefed | |
| on those, and you are not cleared into those compartments. | |
| So, I think that there is actually a remaining problem just | |
| in terms of communication across the agencies. And I think HFAC | |
| and SFRC, in particular, tend to be excluded from a lot of the | |
| briefings that they ought to be getting, and that is | |
| particularly true in the context of cyber. | |
| Mr. Allred. You must have been reading my mind. I have been | |
| thinking for some time, Mr. Chairman, that we are going to have | |
| to insert ourselves through the NDAA, or any other process, | |
| into some of these considerations. | |
| I just want to finish in the minute that I have remaining | |
| to ask you both to assess what lessons you took from the | |
| bipartisan, but ultimately unsuccessful, votes to limit the | |
| President's ability to go to war with Iran in the last | |
| Congress. | |
| Mr. Goldsmith. I viewed it as very encouraging because | |
| Congress voted to--I believe it was under the War Powers | |
| Resolution process--to push back against the President, but it | |
| also reveals the problems with the current arrangement, which | |
| is, basically, that you have to overcome a veto. | |
| Mr. Allred. I agree. | |
| Professor Hathaway. | |
| Ms. Hathaway. Yes, I agree with that completely, and I | |
| think the same thing is true, for instance, of similar votes by | |
| Congress to withdraw authority for support for the Saudi-led | |
| coalition operations in Yemen. The fact that Congress has taken | |
| these votes is a really great sign. It shows that the muscle | |
| memory has not completely fallen away. But it does illustrate | |
| the need for reform because those were vetoed, and then you are | |
| in the position of having to overcome a veto which is, again, | |
| nearly impossible. | |
| Mr. Allred. The intention is there, and I think it is | |
| bipartisan. And I think you will see a Democratic Congress | |
| looking to limit a Democratic President right now. And so, I | |
| hope that folks recognize that as well. | |
| Mr. Chairman, thank you for the time. I will yield back. | |
| Chairman Meeks. The gentleman's time has expired. | |
| I now recognize Representative Tom Malinowski of New | |
| Jersey, the vice chair of the full committee, for 5 minutes. | |
| Mr. Malinowski. Thank you so much, Mr. Chairman. Thanks. | |
| Thanks to the witnesses. | |
| I am very much in line with most of my colleagues in | |
| believing that Congress needs to assert itself here, that the | |
| 2002 authorization is no longer needed, should be repealed, | |
| along with all of them, going back to the 1950's, as we heard | |
| from our friend from Michigan, and that the 2001 authorization | |
| should be updated. | |
| I do have some questions, though, because I do think, just | |
| from my experience, not just as a Member of Congress, but as an | |
| executive branch official, that this is an incredibly | |
| complicated set of issues. | |
| I wanted to ask Ms. Hathaway to expound a little bit on | |
| this question of what engagement in hostilities really does | |
| mean. And just to throw out some real-world examples, I think | |
| an obvious one where, by any common-sense definition, we were | |
| engaged in hostilities was Libya. I am sure you would agree | |
| with that, despite the Obama Administration's assertion to the | |
| contrary. | |
| Ms. Hathaway. Yes, I would. And if you look at what the | |
| understanding was of Congress at the time it enacted the War | |
| Powers Resolution, it understood itself to be putting in place | |
| a threshold that was lower than an armed conflict threshold. | |
| So, it chose the term ``hostilities'' because it wanted to be | |
| notified earlier than when we were involved in an armed | |
| conflict. But, unfortunately, while that appears in one-half of | |
| the | |
| [inaudible]--and so, we can look to that and see that this | |
| is what gives us insight into what Congress thought it was | |
| doing--it never put that actually in the text. | |
| So, if we understand the original intent of Congress, it | |
| intended for that threshold to be pretty low, so that it would | |
| be informed, so that it would play a role. But unfortunately, | |
| successive Presidents have interpreted it much more broadly, | |
| and Congress has not really been in an effective position to | |
| push back. So, Libya is a perfect example. | |
| Mr. Malinowski. But that is a relatively easy one. I think | |
| earlier in the hearing you kind of gave a rough definition | |
| along the lines of a situation where our troops would be | |
| engaged in the use of force or potentially subject to use of | |
| force. And I want to question you on that relatively vague | |
| second part. | |
| I mean, wouldn't our troops be potentially subject to the | |
| use of force in Korea, for example? Or let's say we stay in | |
| Afghanistan and say we are not there for combat; we are there | |
| for train and equip. They could be attacked anytime by the | |
| Taliban or somebody else. Would you see those as situations | |
| that require authorization? | |
| Ms. Hathaway. So, I think that an authorization ought to be | |
| required in instances where the President is sending troops to | |
| situations where they are likely to be subject to uses of | |
| lethal force against them or where they, themselves, are likely | |
| to use lethal force. This is a draft authorization that has | |
| been put together by a variety of former government officials, | |
| including folks affiliated with the Open Society Institute. | |
| But I will say that I actually think that it is entirely | |
| appropriate for Congress, if it thinks this isn't the right | |
| line to draw, to draw it in a different place. | |
| Mr. Malinowski. Yes. | |
| Ms. Hathaway. But I think what is most important is for it | |
| to draw a line---- | |
| Mr. Malinowski. Right. | |
| Ms. Hathaway [continuing]. And to be extremely clear about | |
| what that line is. And right now, we do not have that. | |
| Mr. Malinowski. And I totally agree with you, and here is | |
| where I get skeptical, though. I think the problem is much less | |
| executive overreach and much more congressional abdication. I | |
| remember, 2013, lobbying Members of Congress in support of the | |
| Obama Administration's request to authorize use of force | |
| against Bashar Assad in Syria, the famous red-line incident. | |
| And I had some just stunningly interesting exchanges with | |
| Members of Congress who would say to me things like, ``Tom, | |
| maybe we should do this, but if the President really wants to | |
| do it, why is he asking us?'' And some of those same Members of | |
| Congress would be on the floor saying, ``Congress must be | |
| always consulted,'' et cetera, et cetera. And I worry that a | |
| fundamental problem here is that we do not actually want the | |
| power that we are asking for; that we do not want to have to | |
| say yes; we do not want to have to say no, because we are | |
| afraid of bearing that burden, either way. | |
| And I have only got 15 seconds left. I think maybe one | |
| solution to that is a sunset provision on these things because | |
| then we have to come back and say yes or no. But that doesn't, | |
| for me, answer the question of what happens in these | |
| complicated humanitarian contingencies where there may be 5 | |
| days to decide how do we make sure Congress actually steps up | |
| to this responsibility. If you have any thoughts, any witness? | |
| My time is up. So, I would yield back. | |
| Chairman Meeks. The gentleman's time has expired. | |
| I see Representative August Pfluger of Texas. You are | |
| recognized for 5 minutes, if you would like to ask questions. | |
| Mr. Pfluger. Mr. Chairman, thank you very much on this | |
| important topic. | |
| And my apologies if some of these questions have been | |
| asked. But I do appreciate the discussion, especially being a | |
| 20-year veteran still serving in the Reserves, and near and | |
| dear to my heart, a lot of these topics. | |
| I will open it up to Mr. Goldsmith. I think what would be | |
| my biggest concern at this point in time with just repealing is | |
| the threat, especially an immediate threat that needs to be | |
| responded to that may not cross that threshold. What are your | |
| thoughts on the risk/reward? I think what I am trying to get at | |
| is the danger of having just a repeal without reform is | |
| something that is on the forefront of my mind, and I would like | |
| to hear your thoughts on that subject as well. | |
| Mr. Goldsmith. Sir, which statutes are you referring to to | |
| repeal? | |
| Mr. Pfluger. Well, I think when we look at the authorized | |
| use of military force, that along with War Powers Resolution. | |
| Mr. Goldsmith. OK. Thank you. | |
| So, the 2001 AUMF, the one from 9/11 that is at the | |
| foundation of our global war, I do not think that that should | |
| be repealed without being replaced. There are some people in | |
| Congress proposing that, but I haven't heard that suggested | |
| today. | |
| The question about repeal without a replacement goes to the | |
| 2002 AUMF, the one against Iraq 18 years ago, 19 years ago. And | |
| with regard to that one, I think absolutely nothing | |
| [inaudible]. I think that statutory authorization has been | |
| stripped out of all, stretched and contorted in a way that does | |
| nothing more than provide the tiny fig leaf of cover for what | |
| is, in effect, an Article II action, and an Article II action | |
| that I do not think will be remotely affected if the 2002 | |
| statute is repealed. So, I am not in favor of repealing the | |
| 2001 statute. I am in favor of repealing the 2002 because I | |
| think it is meaningless and it shouldn't be just lying around | |
| as a fig leaf for the President. | |
| Mr. Pfluger. I appreciate the response on that. | |
| And, Ms. Hathaway, I will hand it to you. I see you shaking | |
| your head in what looks to be like agreement, but please go | |
| ahead. | |
| Ms. Hathaway. Yes, I agree entirely. And I think the way | |
| that Professor Goldsmith characterized it is exactly right, | |
| which is it really doesn't provide any legitimate authority. | |
| Nonetheless, when Presidents have sort of felt uncertain about | |
| their legal authorities, they sort of grab for whatever they | |
| can, and they grab for the 2002 AUMF to sort of paper over what | |
| they see as sort of weaknesses in the rest of the legal | |
| argument. And that is not good for Congress. That is not good | |
| for the United States. | |
| And so, I think what repealing the 2002 AUMF does is it | |
| sort of takes that off the table. It takes that inappropriate | |
| use of an authority off the table and it clears the decks, | |
| particularly if you also withdraw the 1991 AUMF and the 1957 | |
| AUMF, I think that sort of clears the decks. And then you can | |
| think carefully about the one authorization that still is | |
| actually doing work, which is the 2001 AUMF, and what do you | |
| want that to look like going forward? | |
| Mr. Pfluger. Very good. | |
| Mr. Chairman, with that--I appreciate the answer on that | |
| part of the subject--I am going to yield back because I do feel | |
| like most of the questions have probably been discussed and | |
| asked in this hearing. So, thank you for the time. | |
| Chairman Meeks. Thank you. The gentleman yields back his | |
| time. | |
| I now recognize Representative Andy Kim of New Jersey for 5 | |
| minutes. Mr. Kim? Unmute, if you are still there. | |
| Not hearing from Mr. Kim, I will move to Representative-- | |
| Mr. Kim? I now recognize Representative Sara Jacobs of | |
| California, the vice chair of the Subcommittee on International | |
| Development, International Organizations and Global Corporate | |
| Social Impact, for 5 minutes. | |
| Ms. Jacobs. Thank you so much, Mr. Chair. | |
| And thank you to our two panelists for hanging in there | |
| until those of us new freshmen get a chance to ask questions. I | |
| know it has been a long hearing already. | |
| And I also want to echo what others have said about the | |
| importance of having this hearing. I was in middle school when | |
| the two AUMFs in question were passed. And so, I think clearly | |
| a lot has changed since then and we should make sure they are | |
| reflecting that. | |
| I wanted to ask a question that some of my colleagues have | |
| touched on, but I feel like we haven't really gotten to the | |
| heart of yet, and that is the Title 50 operations. And I was | |
| wondering if both of you could talk about whether or not you | |
| believe a new, amended war powers framework should include | |
| Title 50 oversight and approval, particularly of the military- | |
| style operations carried out under Title 50, not all | |
| collection, and how we can reform the Title 50 processes so | |
| that Congress acts as more than a passive receiver of | |
| information regarding covert offensive action. | |
| Ms. Hathaway. I will just speak very briefly. I mean, the | |
| question you raise is a really big one and a really important | |
| one. So, we have been focusing primarily on the War Powers | |
| Resolution and the AUMFs and that sort of one set of | |
| authorities for authorizing U.S. military operations and lethal | |
| force. There is, separately, Title 50, which allows for | |
| authorization of covert operations, and those are briefed to | |
| the intelligence agencies and, generally, not disclosed to the | |
| public. In fact, the whole idea of a covert operation is it is | |
| not intended to ever be disclosed publicly. | |
| And increasingly, there have been lethal operations | |
| undertaken under Title 50 authorities, including using drones, | |
| and those drones are actually the exact same drones in many | |
| cases and exact same operators who are engaging in the Title 10 | |
| authorities. You just are, basically, switching who is giving | |
| the orders. It is the exact same operators; it is just a | |
| different chain of command that is attached to it. | |
| And so, I do think it is something to be aware of. The | |
| Obama Administration had tried to shift almost all of the Title | |
| 50 operations of that sort over to Title 10, as a way of trying | |
| to address that problem. The Trump Administration kind of | |
| pushed it back. And so, I do think that you are right to ask | |
| that question. And if you are going to take that kind of | |
| comprehensive view, which I hope that you do, thinking about | |
| foreclosing the possibility that what a future administration | |
| might do is sort of shift more and more into the Title 50 side, | |
| and sort of heading that off I think is very wise. | |
| Ms. Jacobs. Thank you. Professor Goldsmith, do you have | |
| anything to add on that? | |
| Mr. Goldsmith. Let me just say I agree with what Professor | |
| Hathaway said. I would say that, as best as outside observers | |
| can tell, these categories seem to be collapsing, at least in | |
| some respects. The authorities for cyber give what is defined | |
| as a covert operation, at least uses the definition of covert | |
| operation, to Cyber Command and some of its authorized | |
| operations. | |
| I do not know the extent to which that is--I just do not | |
| know, the extent to which that is an Armed Services-led gambit, | |
| and it is something the intelligence committees are not happy | |
| about, and the Foreign Relations and Foreign Affairs Committees | |
| are not happy about. Ideally these things would be coordinated, | |
| but what ends up happening, as you know, is it ends up being a | |
| food fight. And it is a food fight often between the DOD and | |
| the CIA on the one hand, and between various committees of | |
| Congress on another. And it often basically shuts down | |
| progress. | |
| So, I am not saying that you shouldn't face up to it. I am | |
| just saying it is a deep and old problem, and it does not have | |
| an easy solution. | |
| Ms. Jacobs. Well, I appreciate that. I am on both Armed | |
| Services and Foreign Affairs. So, maybe I will be able to help | |
| with the food fight problem. | |
| But, to my second question, and maybe you can tell I am | |
| thinking about all the loopholes the executive branch might | |
| use, even if we do have a new War Powers Resolution. I am | |
| wondering, aside from the power of the purse that I think you | |
| both discussed, are there any other ways that Congress could | |
| circumscribe the vast interpretation of Article II powers that | |
| the executive branch has relied on for a whole host of | |
| operations? | |
| Ms. Hathaway. I will just point out one issue in response | |
| to that, which is that Congress really has ceded the | |
| interpretative authority almost entirely to the executive | |
| branch and has allowed the executive branch, a combination of | |
| White House Counsel's Office and the Office of the Legal | |
| Counsel in DOJ, to really be the ones who get to decide how to | |
| interpret these authorities. And Congress really hasn't had a | |
| way of pressing back against that. | |
| And I have another paper where I make an argument, for | |
| instance, that we ought to have a congressional OLC, so a | |
| congressional Office of Legal Counsel, that would have the | |
| authority to render its own opinions about the scope of | |
| existing authority under the War Powers Resolution. There is no | |
| reason that that really ought to be the President's lawyers | |
| alone who are interpreting the scope of that authority. You | |
| could just as easily have congressional lawyers who are | |
| interpreting that in a way that is cognizant of the | |
| institutional concerns and interests of Congress. | |
| So, I think just more thinking systemically about how | |
| Congress can reclaim some of the ground that it has ceded, and | |
| that would be one possible way of doing that. | |
| Ms. Jacobs. Thank you. | |
| Chairman Meeks. The gentlelady's time has expired. | |
| I now recognize Representative Kathy Manning of North | |
| Carolina, the vice chair of the Subcommittee on the Middle | |
| East, North Africa and Global Terrorism, for 5 minutes. | |
| Ms. Manning. Thank you, Mr. Chairman, for holding this very | |
| important hearing. | |
| And thank you to the witnesses for your tenacity and your | |
| willingness to stay this late and answer everybody's questions. | |
| Professor Goldsmith, you stated in response to | |
| Representative Titus's question that the War Powers Resolution | |
| has been a total failure in achieving its goal. If you were | |
| able to craft a solution from scratch, in light of the changes | |
| in the world, in Congress, in the presidency, and the | |
| complexities of the globe today, what would be the right way to | |
| effectively balance these powers between Congress and the | |
| President, to allow us to exert our appropriate role in the | |
| world while fostering transparency to the American people, | |
| careful consideration of all military actions, but still | |
| protect our country? | |
| Mr. Goldsmith. So, to protect the country in the end is a | |
| very important point. There many things to do. If we are | |
| assuming away political hurdles, as I think your question asks, | |
| I think there are two or three steps. One, I think Congress | |
| should--which would be hard to do--it should define the | |
| circumstances in which the President can use force. It should | |
| authorize those circumstances, and it should limit it to self- | |
| defense and self-defense-related actions, which is at the core | |
| and maybe the only justification for Presidential power. And it | |
| should define it clearly. | |
| It should then tie uses of force--and then, it should tie | |
| restrictions for anything beyond that, and for the use of those | |
| forces authorized after a certain period of time without | |
| congressional authorization, to a spending restriction. I think | |
| it should also tighten up the automatic kick-in for the | |
| termination of the President's authorized authorities to a | |
| narrower conception of hostilities. I would favor something | |
| like armed conflict. That is not a perfect definition. The | |
| advantage of that is it has a pretty well-established meaning | |
| within the Justice Department. | |
| But those are the main things you can do within a war | |
| powers context. That is going to take a huge lift on the part | |
| of Congress. And there would be fierce resistance by the | |
| executive branch. So, I do not mean to suggest that is easy to | |
| do, but those are some of the things that I think should be | |
| done. | |
| Ms. Manning. So, let me ask about the other part of that, | |
| because that would require a really strong spine on behalf of | |
| Congress. And as you have referenced a little bit today--well, | |
| we have talked about Congress' abdication of power, both an | |
| unwillingness of Congress to push back against a President who | |
| fails to consult with the Congress, who fails to report to | |
| Congress, and as we talked about just a little bit earlier, | |
| Congress' unwillingness to take the opportunity proactively to | |
| assert their power. | |
| I think Representative Allred cited a few glimmers of hope. | |
| But what do you think it would take for Congress in today's | |
| world to resume its appropriate constitutional role? | |
| Mr. Goldsmith. I do not have a great answer to that; I am | |
| sorry. I fear that the answer is that absent some cataclysmic | |
| mistake by the President exercising his unilateral force, like | |
| Vietnam, even though Vietnam was authorized, something that is | |
| as controversial as that, I fear that Congress will not get its | |
| act together to do what is necessary to do. | |
| And I am especially worried because in the last 10 or 12 | |
| years we have shifted the vast majority of warfare to a light | |
| footprint warfare, which is not on the front pages, American | |
| casualties that are at a minimum. As Senator Kaine says, it is | |
| like it is a deal between Congress and the President to just | |
| keep this off the front pages and not have a debate about it. | |
| If that is the scope and shape of the war, it is going to be | |
| very hard for Congress to muster, especially in a world of | |
| serious and legitimate, dispersed, asymmetrical threats. So, I | |
| am not optimistic about major war powers reform, as important | |
| as I think it is. | |
| Ms. Manning. Does the fact that our military is voluntary | |
| have any impact on this? | |
| Mr. Goldsmith. I do believe it does. I have written many | |
| times before that the combination of an all-voluntary military, | |
| and there is no draft--so, we do not see the draft-related | |
| protests like we saw in Vietnam--it is consent to serve in the | |
| military, more or less consent to serve in the military, | |
| combined with using our military in a way that is not on the | |
| front pages. It is like a one-two punch to kind of disassociate | |
| war from our democracy. | |
| Ms. Manning. Thank you. | |
| Professor Hathaway, anything to add in 25 seconds? | |
| Ms. Hathaway. Well, I will just say that I am a little bit | |
| more optimistic, in part because of this hearing and in part | |
| because President Biden has expressed a willingness to be open | |
| to war powers reform. You do not always have Presidents who are | |
| willing to do that, in which case Congress is in a position of | |
| having to act over the objection of the President, which again | |
| is nearly impossible. So, I do hope that Congress will seize | |
| this opportunity of a President who is friendly to this and a | |
| sense that we really have gotten to the point, two decades | |
| after the 9/11 attacks, that Congress does need to reassess its | |
| authority and try to play its constitutional role yet again. | |
| Ms. Manning. Thank you both, and I yield back. | |
| Chairman Meeks. The gentlelady's time has expired. | |
| I now recognize Representative Abigail Spanberger of | |
| Virginia, the vice chair of the Subcommittee on Europe, Energy, | |
| the Environment and Cyber, for 5 minutes. | |
| Ms. Spanberger. Thank you very much, Mr. Chairman, and | |
| thank you for organizing this incredibly important hearing, | |
| particularly so early in this new Congress. | |
| And to our witnesses, thank you so much for being here, and | |
| thank you for staying into this lengthy committee hearing. | |
| I do understand the serious national security threats, | |
| given my background in the intelligence community, but I think | |
| that the crux of this conversation that we have had here today | |
| is not about whether we take threats seriously; it is really | |
| about whether we take the Constitution and the will of our | |
| constituents seriously as we look to how we address those | |
| threats. | |
| As a little bit of the followup to the conversation and the | |
| question of Congresswoman Manning, I would argue that, if | |
| Members of Congress do not want the responsibility of debating | |
| and voting on decisions of war and peace, the responsibility to | |
| make grave and tough decisions that affect the lives of | |
| servicemembers and their families, and many other national | |
| security professionals, then perhaps they should pursue a | |
| different profession. | |
| But I do share some bit of hopefulness that there are | |
| Members of Congress across the ideological spectrum, and from | |
| across the country, who are really trying to reassert | |
| congressional authorities, and I look forward to our continued | |
| efforts to do so in Congress. This hearing I think has been | |
| vital to our understanding and to the discussion of the | |
| challenges that we are facing and how we can move forward. | |
| So, my first question relates to the 2002 AUMF, and I open | |
| it up to either of you. I am hopeful that there is bipartisan | |
| momentum to repeal the 2002 AUMF and potentially other AUMFs | |
| that are no longer active or needed. And so, I guess I would | |
| start with you, Professor Hathaway. I know that the 2002 AUMF | |
| has already been discussed relatively at length today. But to | |
| make sure that we are clear as we close out the hearing, could | |
| you further explain why leaving this inactive or outdated AUMF, | |
| this or others, on the books sort of just in case they would be | |
| convenient at some other point in time, why that might be a | |
| challenge or something that you would support or not support? | |
| Could you comment on that? | |
| Ms. Hathaway. Yes. I think the difficulty of leaving or the | |
| problem of leaving these defunct AUMFs on the table is that | |
| they create a lot of temptation for a President to sort of | |
| reach for them at times when they really are inappropriate to | |
| be reached for. And so, they have sort of a weak authority, and | |
| they sort of think, well, maybe if I take my weak authority and | |
| I add this 2002 AUMF to it, it somehow becomes stronger, even | |
| though a legitimate reading of the 2002 AUMF is that it doesn't | |
| actually provide any additional legitimate authority for that | |
| use of force. | |
| So, I think it creates unnecessary temptations. It is just | |
| best to kind of clear those decks, to kind of get those out of | |
| there--there is no serious argument that the AUMFs were meant | |
| to be used at this point for the purposes that they have been | |
| cited for in the last couple of years--and move on with a clear | |
| repeal and replace of the 2001 AUMF after that. | |
| Ms. Spanberger. And, sir, would you want to add anything to | |
| that? | |
| Mr. Goldsmith. No, I agree with that. | |
| Ms. Spanberger. Thank you very much. | |
| And so, then, when we are looking at, in addition to the | |
| challenges of outdated or the vague nature of the laws that | |
| exist on the books, I think there is an overarching challenge | |
| of congressional capacity to carry out oversight, which I think | |
| could be one of the real contributing factors here. The | |
| President has expansive legal resources, and I know, Professor | |
| Hathaway, I think you were speaking about that just a bit ago. | |
| So, do you have additional recommendations about how we could | |
| better enable congressional oversight in our legislative | |
| efforts as a way of perhaps contending with this argument that | |
| there is value in keeping older AUMFs on the shelf just in | |
| case? | |
| Ms. Hathaway. Well, yes. I mean, I think that part of what | |
| would be appropriate is for Congress to ask for a briefing from | |
| the executive branch about what operations it understands it to | |
| require. I suspect that what you are going to get from that is | |
| that the Administration is not relying on the 2002 AUMF for any | |
| ongoing operations. It didn't cite it for the operation in | |
| Syria against the Iran-backed militias. And so, I think that | |
| that might give some comfort. | |
| But I think, also, we need to be thinking about sort of | |
| regularized reporting mechanisms and ensuring that Congress is | |
| regularly kept updated, all the appropriate committees are kept | |
| regularly updated on the operations that are being undertaken | |
| using the authorities that have been granted by Congress. | |
| And so, relative to | |
| [inaudible] attention to careful, thoughtful reporting, and | |
| ideally, reporting that is unclassified, so that Members are | |
| able to discuss it in the open, having hearings like this one | |
| about the claims that are being made, so that all the staff | |
| members can weigh in and be aware of the decisions made. Maybe | |
| there would be a classified appendix, but the vast majority of | |
| the reporting I think ought to be done in an unclassified way, | |
| so that the American public knows what is being done in their | |
| name. | |
| Ms. Spanberger. And so that we can have those conversations | |
| with the people we represent. Certainly, I come from a | |
| classified background, but I see significant value in what you | |
| are discussing. | |
| With that, I am over time, and I yield back, Mr. Chairman. | |
| Thank you again to our witnesses. | |
| Chairman Meeks. Thank you. | |
| I now recognize Representative Juan Vargas, the vice chair | |
| of the Subcommittee on the Western Hemisphere, Civilian | |
| Security, Migration and International Economic Policy, for 5 | |
| minutes. | |
| Mr. Vargas. Thank you very much, Mr. Chairman. I thank the | |
| witnesses. | |
| In particular, Mr. Chairman, I want to thank you. | |
| Yesterday's hearing with the World Food Programme and David | |
| Beasley I think is one of the most important things we are | |
| going to do, and now to have this very important hearing. | |
| Again, thank you for your leadership so early on in your | |
| chairmanship. I really do appreciate it; I think we all do. | |
| I do think that we, as Congress, we are shirking our | |
| responsibility when it comes to the Constitution and, in | |
| particular, the issue of the Authorization for the Use of | |
| Military Force. I think that Mr. Connolly was correct, the | |
| responsibility to declare war, hostility, or armed conflict, | |
| however you want to describe it, really lies at the feet of | |
| Congress. And I do think that the President, then, under | |
| Article II, has the responsibility to prosecute those actions. | |
| But we have abandoned, or as my colleague Tom Malinowski | |
| said, we have abdicated our responsibility I think for two | |
| reasons. One, we do not want the responsibility. I think we are | |
| very, very comfortable having the President take the | |
| responsibility. I think, for all the reasons that we have | |
| mentioned--again, who goes to war, who doesn't, you know, and | |
| the type of wars we are fighting--I think we are very | |
| comfortable giving it over to the President. That is one. | |
| And second, I think, interestingly, it is something that | |
| our colleague Mr. Kinzinger said, and that is that we have been | |
| somewhat successful, too, in the sense that we haven't had a | |
| terrorist attack in our country, really, an external one, since | |
| [inaudible]. Most of the terrorist attacks that we have had | |
| have been internal ones. We have had national ones, but not an | |
| international one, since that. We haven't had a Vietnam War. We | |
| haven't had that type of situation. So, we have abdicated our | |
| responsibility. | |
| I think it is terrible. I do think, as my colleague | |
| Congresswoman Spanberger said, we should then get another job | |
| if we do not want to do our own job. And I think it is our job. | |
| But do not you think those are two of the reasons? I mean, it | |
| seems to me that we are comfortable having the President take | |
| these responsibilities. And second, we have been somewhat | |
| successful. | |
| Professor Hathaway. | |
| Ms. Hathaway. Yes, I think that you put your finger on one | |
| of the real problems with bringing about reform, is that many | |
| Members have felt that it is easier not to have to take those | |
| votes. And I think part of it is, too, that in many cases they | |
| sort of trusted that the President would sort of do what was | |
| best. | |
| I do think, as Professor Goldsmith mentioned, that some | |
| presidencies sort of shook that confidence for some people, and | |
| there was a sort of sense that maybe we cannot always rely on | |
| the President to make rational decisions when it comes to the | |
| use of our military force. And that may be part of what is | |
| driving a renewed interest in thinking about war powers reform. | |
| But I think you put your finger on it. I do think that is | |
| part of the reason there hasn't been a move in this direction. | |
| And I actually think it is part of the reason that there should | |
| be, because Congress should show that political courage to take | |
| on its constitutional role, even when it might be convenient | |
| not to do so. | |
| Mr. Vargas. Professor Goldsmith? | |
| Mr. Goldsmith. I would just add that I agree with your two | |
| reasons. But Congress engaging doesn't require in any way the | |
| jeopardization of the success. Congress has gone along with the | |
| President, as you say, half-handedly. They have been quietly | |
| cheering him on from the sidelines. They have been | |
| appropriating for every element of the war on terrorism. | |
| I wouldn't say that every step the President has taken in | |
| the last 20 years has been successful, but on the whole, I | |
| agree with you that the counterterrorism operations have been | |
| remarkably successful. But that is not a reason--I mean, I do | |
| not think you were implying this--but that is not a reason for | |
| Congress not to engage. That is a reason for Congress to | |
| engage, as Professor Hathaway said. | |
| And you do not have to jeopardize that success by engaging | |
| if you agree with the arc of the war that the President has | |
| been doing. But you do to legitimize it, for the troops, for | |
| the American people. And I can tell you from working in the | |
| executive branch that congressional scrutiny has a great | |
| disciplining effect. So, I agree with your diagnosis, but I do | |
| not think Congress getting involved in any way jeopardizes | |
| success. | |
| Mr. Vargas. Thank you. | |
| Now I do want to challenge, Professor Goldsmith, one thing | |
| that you did say. You said that we have given the President | |
| carte blanche with regard to nuclear weapons because the | |
| President seemed responsible, until President Trump maybe with | |
| North Korea. I have to say that one of the things that is | |
| interesting, if you flip that around and you talk to our | |
| adversaries--I remember in 1993 going to Russia--they felt that | |
| it was an irresponsible President, potentially Reagan or | |
| someone, that would launch nuclear weapons. That is why they | |
| were afraid. It is interesting how they looked at it very | |
| differently. They thought we were quite irresponsible, not | |
| responsible, and that was a deterrent. Anyway, I throw that out | |
| there for---- | |
| Mr. Goldsmith. So, with regard to President Trump, that is | |
| the mad man theory of deterrence. | |
| Mr. Vargas. Yes. | |
| Mr. Goldsmith. And many people adhere to that. But it is | |
| also extremely dangerous when you are talking about pressing | |
| your big button. | |
| Chairman Meeks. The gentleman's time has expired. | |
| Mr. Vargas. Thank you very much. I yield back. | |
| Chairman Meeks. I now recognize the gentleman from | |
| California--from Illinois, excuse me--Mr. Brad Schneider, for 5 | |
| minutes. | |
| Mr. Schneider. Thank you, Mr. Chairman. And as others have, | |
| thank you for calling this hearing. It is a critically | |
| important issue. | |
| I want to thank our witnesses for staying through the | |
| entire hearing. I think if I had the privilege of summarizing 3 | |
| hours-plus into 5 minutes, which I will not even try to do, but | |
| if I were to put an overarching theme on what we talked about | |
| today, it seems to be that we should repeal the 1991 and 2002 | |
| AUMFs, reform the 2001 AUMF, and reform the War Powers | |
| Resolution. That is basically what you guys have said, correct? | |
| Ms. Hathaway. That is right. | |
| Mr. Goldsmith. That is correct. | |
| Mr. Schneider. All right. And I guess the other pieces I | |
| have heard, I have heard that, again, to oversimplify it, to | |
| agree it is complicated. It is complicated because the context, | |
| the dynamics are changing. The who, what, where, and how of | |
| conflict is not just different from what it was at our | |
| founding, or even at the time of the War Powers Resolution, but | |
| it is constantly evolving and changing as the threat changes. | |
| And it is a heavy lift. | |
| The other theme I have heard over the day--I think, Mr. | |
| Goldsmith, you said it--assuming away political hurdles, we | |
| have heard variations on that statement over and over again. | |
| So, my question is, if politics is the art of the possible, and | |
| we do not get to assume away those political hurdles, what do | |
| you think is both the most important and the most possible | |
| thing that Congress can do to address the reform of the AUMFs | |
| and the war powers? | |
| Mr. Goldsmith. Is that directed to me, sir? | |
| Mr. Schneider. Well, we will start there, sure. | |
| Mr. Goldsmith. Yes. So, I think that easily within the | |
| realm of the possible is abrogating the old and unusable AUMFs | |
| and reforming the 2001 AUMF. Frankly, I think, based on this | |
| conversation today and other conversations, that there is a lot | |
| more consensus than there used to be, even during the Obama | |
| Administration. I think there is a broader recognition about | |
| what the AUMF looks like. We have had very little disagreement | |
| expressed today from anyone on either side of this | |
| conversation. And President Biden has always been a war powers | |
| constitutionalist. He says he is behind this. I believe him. | |
| And so, I think that the 2001 AUMF reform, accompanied by | |
| abrogating the others, is the lowest-hanging fruit that is | |
| achievable. | |
| Mr. Schneider. Professor Hathaway? | |
| Ms. Hathaway. I would agree with that. I think that that is | |
| essential. I would pair that with some efforts at reforming the | |
| War Powers Resolution. There are two elements that I think have | |
| been a source of some consensus that I think would make a big | |
| difference, even if you cannot do anything else. Those are | |
| define ``hostilities''--the fact that ``hostilities'' is not | |
| defined in the War Powers Resolution is, I think, its biggest | |
| Achilles' heel--and then, second, thinking about a way of | |
| including an automatic funding cutoff. That is maybe harder, | |
| but there are ways of designing it, so it doesn't happen | |
| immediately, of phasing it in, of various other kind of | |
| mechanisms for including an automatic cutoff that Congress | |
| doesn't have to separately vote on, that I think could make a | |
| real difference. | |
| But, even if all that you did was define ``hostilities,'' | |
| that would be a very big step in the right direction. There are | |
| lots of other reforms that we have talked about, that is in our | |
| written testimony, that is in the testimony of the panelists at | |
| the Rules Committee this morning. I think those are all really | |
| valuable reforms as well. | |
| But I think if we take the pieces of it--we do not have to | |
| necessarily take all of it on; I would love to see us take all | |
| of it on, but even if you think that is politically not | |
| feasible--these are severable reforms that you could take on, | |
| even if you feel like the entirety of it is not within reach. | |
| Mr. Schneider. Yes, let me expand a little bit because we | |
| have talked earlier about a definition of ``war,'' a definition | |
| of ``hostilities,'' ``associated forces.'' How narrowly do | |
| those, in your mind, have to be defined to be effective? And | |
| what is the path of trying to get to those clear definitions? | |
| Ms. Hathaway. So, my view is it is not necessarily | |
| essential that it be super narrow, but that it be very clear. | |
| And I think one of the problems with using the term | |
| ``hostilities'' is that it is not a term that is used anywhere | |
| else. So, not only was it not defined, but it is not a term | |
| that is drawn from anything else. And so, there is nothing to | |
| use as a kind of external check on executive branch | |
| interpretations. What is essential is that Congress be very | |
| clear about how it is going to define whatever term it uses. I | |
| think, for ``hostilities,'' tying it to lethal force is one | |
| option. Another I think that Jack articulated is applying it, | |
| tying it to armed conflict. I think that is also, effectively, | |
| a very similar definition. But whatever you do, to be really | |
| clear about what the definition is, so that it is not open to | |
| this kind of process of interpretation that the executive | |
| branch lawyers are accustomed to engaging in. | |
| Mr. Schneider. Great. Thank you. | |
| My time has expired. I yield back. | |
| Chairman Meeks. Thank you, Mr. Schneider. | |
| And let me, in closing, just say thank you to our | |
| witnesses, Ms. Hathaway and Mr. Goldsmith and Mr. Bauer, who | |
| were here. I just want to thank you. Your testimony and your | |
| advice has been extraordinary. The time that you have taken to | |
| answer each and every member's questions is deeply, deeply | |
| appreciated by me and this committee. | |
| You know, making decisions on the matter of war is one of | |
| the most serious and solemn responsibilities that the | |
| Constitution entrusted to Congress. And I know for me--and I | |
| have been in Congress for 22 years now; I was one that was | |
| still here back in 2001, when we had the AUMF that we voted on | |
| in 2002--but the decision to send a young woman or man into war | |
| is the hardest, was the hardest for me of any vote that I have | |
| ever had. | |
| But it is a responsibility that we have, and for far too | |
| long I believe Congress has relinquished that responsibility to | |
| the executive branch. And as I said in my opening remarks, the | |
| time to reverse that trend I believe is now, for some of the | |
| reasons that were just indicated by both Mr. Goldsmith and Ms. | |
| Hathaway. It seems, just from this hearing, Democrats and | |
| Republicans are saying some of the same things. And all of our | |
| witnesses today seem to be in accord, and that President Biden | |
| is willing to work with us to try to make sure that we get to a | |
| different standard. So, the stars just may be lining up for us | |
| to do the right thing. | |
| Now, later this week, the committee will take its first | |
| related legislative action of the 117th Congress by considering | |
| the repeal of the 2002 Iraq War AUMF. And the insight that you | |
| have given us today is definitely going to serve to further | |
| guide this committee on our work to replace the 2001 AUMF and | |
| reform the War Powers Resolution. I am focused, as chair, to | |
| make sure that we work in a collective way and to get as many | |
| people to the table as possible. I am sure that we could be | |
| calling you back just to guide us and to get some of your | |
| thoughts as we move this Congress to try to do just that. | |
| So let me, once again, thank you for your participation | |
| today, and thank all of the members, and Mr. Ranking Member | |
| McCaul for his cooperation in working together on this hearing, | |
| which I feel was absolutely extraordinary for that. | |
| And with that, this hearing is now adjourned. | |
| [Whereupon, at 4:31 p.m., the committee was adjourned.] | |
| APPENDIX | |
| [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] | |
| STATEMENT FOR THE RECORD CONNOLLY | |
| [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] | |
| RESPONSES TO QUESTIONS SUBMITTED FOR THE RECORD | |
| [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] | |
| [all] | |
| </pre></body></html> | |