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tv   Experts Tell Senate Panel New AUMF is Needed for Military Action in Syria  CSPAN  June 23, 2017 4:23pm-6:04pm EDT

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unknown people. i wanted to write about the woman that fed pigeons at the park or cleaned offices at the chrysler building at 4:00 in the morning or the doorman and what he saw and didn't see. i want to write about sometimes what it was like to be a bus driver or clean the subway at 4:00 in the morning. the obscure characters that people -- ordinary people do not recognize and i wanted to be a chronicler of those who were unrecognized or untitled. >> for more of this weekend's schedule go too booktv.org. >> the senate foreign relations committee held a hearing on the use of military force with testimony from bush and obama administration officials on policy and legal issues and details about the 2007 authorization for the use of military force which was passed after the 9/11 attacks.
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the hearing ran an hour and a half. >> the foreign relations committee will come to order. we thank our the foreign relations committee will come to order. the senators who i know care deeply about this issue. i would like to thank you for being here to testify, your insights and experience will be
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helpful as we begin to re-engage on this difficult topic. it's been well over a decade since 9/11, and there's an interest on the part of many members to revisit and refresh the authority we used to fight terrorism. in 2014 we saw the rise of isis which feeds territory in iraq and syria and has seen thousands of foreign fighters and conducted repeated attacks against the united states or our allies. as a result of these types of threats and others, multiple presidents have use the 2001 authorization for the use of military force by necessity to conduct hundreds of drone sites around the world and to put american troops on the ground in multiple countries. however, there are a multitude of terrorist groups operating today that pose a direct threat to the united states and have lesser connection to the 9/11 attacks.
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many have questioned whether 2001 covers these groups. i've always believed it's important for congress to exercise this constitutional role to authorize the use of force and that our country is better off when congress clearly authorizes the wars we fight. as a matter of fact, we are approaching today when an american soldier will deploy to combat under legal authority that was passed before they were born. in 2014 i wrote absent congressional action the president will continue to operate under an outdated authorization leaving the door open for future presidents to claim undue and unbounded powers that will over time erode the balance of power fundamental to our constitutional system. three years later that statement remains true. it's also one they think most members of congress will agree with, but there are very rally reasons why congress has been
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unable to pass the authority and they are worth outlining. first and most importantly the the 200 1 continues to provide military with the authority they need from very real threats. in the past year american forcers have been on the ground fighting terrorism in at least five countries. i believe that the president has the authority under the 2001 a.m. act to take action against isis as the obama administration repeatedly testified before this committee. >> the act, while stretched provides a necessary, legal authority for us to continue this fight. we should not risk its expiration without a replacement. second, some members of congress will use this debate for the single purpose of imposing limitation on the president. it's just a fact. others may refuse to limit a president at war in any way. that's a fact and that's a wide gap to bridge.
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>> finally, many argue that while passing an act may not be a legal necessity. it's a moral one. they believe that congress must fulfill its constitutional duty of authorizing war and showing the men and women fighting around the world that there are elected representatives to support the war, and i too share many of those sentiments and believe we must also guard against an outcome that could have exactly the opposite effect. while congress, in fact, strongly supports the fight against isis and has repeated lead funded the effort, the failure to bridge differences in the past could create a false impression of disunity during a time of war. so it's the backdrop of these challenges, i intend to conduct this debate in a way that serves boast our national interest. i hope that the administration will brief this committee to present their counter terrorism strategy and engage us
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constructively to ensure that any new authorization is appropriately tailored to observe the national interest to avoid this fight, and i want to thank senators cane and flake for their tireless effort. i want to thank senator young for presenting their own amf and i want to thank senator menendez for chairing a meeting for a mark-up, and i a preesh all of the work that's been done to develop bipartisan solution. i want to thank you for your presence today that is most useful and helpful to us and i look forward to your questions and responses. with that, i would like to turn to our distinguished ranking member and i think what we did last week on the senate floor through intense negotiations struck exactly the right balance to continue to cause this committee in the senate in extending foreign policies.
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>> i want to thank everybody for that and with that i'll turn to senator cardon. >> thank you, mr. chairman. i totally concur in your comments about the actions last week. i think it was the united states senate indicted by this committee that did exactly what we needed to do in regards to the appropriate role of congress. i thank you very much, and i also thank you for holding this hearing. much of what you said in your opening statement i fully support and agree with. there are some differences that i will point out in my opening statement, but i do agree that this is one of the most important responsibilities that we have and one in which hearings are very important for us to get this right. you can't run away from this responsibility and i thank you for holding this hearing. i also join you in thanking senat senator cane, for many years in
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pointing out that congress has the responsibility on the use of military force and the interpretations of both democratic and republican administrations from the 2001 authorizations go well beyond what congress intended and i thank them both for their leadership. senator young, thank you for your leadership, and this committee took up this issue under senator menendez's agreement. we did not come to an agreement and the administration was not -- in the wake of september 11, 2001, congress passed an aumf targeting the purpose trae trarts of those attacks and the taliban in of course afghanistan. congress passed a second uamf,
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when written, these aumfs supplied the president with latitude in order to better combat the threat of terrorism. unfortunately, this latitude has been stretched far beyond what congress intended. we are now 16 years beyond the 2001 aumf and yet it continues to be used as justification for a wide range of military operation. this includes military operation against terrorists in the middle east and africa and connections to al qaeda in the 9/11 attacks are tenuous, at best. mr. charm an, lirman let me jus what the authorization has said that the president has authorized to use all necessary and appropriate force to use all nations, organizations and persons who he determined planned, authorized, committed or aided the terrorist attacks that occurred on september 11, 2001, or harbored such
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organizations a person in order to prevent any future acts of international terrorism against the united states by such nations, organizations. it was clear to me when i voted for it that i was giving the presence the necessary authority for those who attacked our country on september 11th. it is now being used well, well beyond what congress intended. there's no question to me. we saw the most recent use of this in regard to activities in syria and it hads nothing to do with the attacks on the country on september 11th and that's true as i said initially about the interpretations under both the obama administration and now under the trump administration. the iraq aumf is still used in part as justification for u.s. military operations in iraq. 14 years past the u.s. invasion and long after the end of the saddam hussein regime.
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these aumfs are now becoming near convenient for presidents to conduct military activity anywhere in the world. this is no longer acceptable. to permit this situation to continue is dereliction of congress' duty under the constitution to direct and regulate the president's use of his commander in chief authority in activities of war is an invasion of our responsibility to the american people to assure that the united states does not stumble into war or involve itself in ill-conceived wars that aren't ours to fight or are not in with the needs and princels of our nation. it is for our brave men and women when we do not clearly define the battle and the objective for which they must fight and risk their lives. this is especially the case now. the president has yet to tell us or the american people what the strategy is for defeating isil in iraq and syria and in other
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relevant theaters like afghanistan where violent extremist groups have u.s. interests and you see the president del bait gaiting the most vital responsibility to decide what military operations are conducted and how many u.s. troops are to be committed to combat -- to combat foreign countries. it is critical to the future security of the united states and our friends and allies that congress provide the president with proper authority to target and combat isil and its affiliate. in 2002 iraq's aumf should be repealed and the 2001ee 9/11 should be repealed and replaced with one specifically targeted isil and other terrorist groups. the authorities provided a new aumf to allow the president to go after direct threats to the united states and also to avoid granting the president unilateral authority to engage in operations practically
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anywhere in the world. >> mr. chairman, let me just point out, you and i have both asked the administration to present us with their strategy. they have yet to do that. there are numerous examples of where we've asked them to present to us what they need. it is difficult for us to carry out our responsibilities unless we know what the commander in chief needs as far as the use of military force in combatting isil forces. so it will be a challenge for us. i think we need to repeal the 2001 or replace it, but we need to know what the administration's strategy is and they haven't done that. we do know they're using the 2001 and 2002 authorizations well beyond what we ever intended. >> of particular concern to me is the meaningful restrictions on deploying u.s. ground forces to combat isil. i do not believe significantly escalating our direct involvement in current combat operations is beneficial to actually solving the crisis
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inciti bated by isil. >> there is no easier or assured way for the u.s. to unintentionally commit to a quagmire as this. as we know too well, once committed and then under attack, it becomes nearly impossible to withdraw those troops. however, i'm not at all convinced that evolving threat from isil to uses and to our friends and partners necessitates committing more of our brave men and women to ground the combat operation. the need for significant combat military operations to diminish as isil's control over territory is diminished and the organization's shifted the focus to terrorist attacks around the globe. it is at this point that the battle becomes one of assisting and building local partner military and improving counter terrorism security forces and law enforcement units and intelligence, investigative and judicial agencies as well as combatting isil's activity. as we heard in ricent hearings,
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isil's global reach and the organization is moving from a physical caliphate to a virtual caliphate and that is not something one fights with combat troops. for all these reasons i believe this is yet hearing is important, but it's equally as important we hear from the administration. >> we have a vote at 11:00, and we have two votes and what we should do is power through those and keep going so if people can pay attention to when their time is up and we'll move back and forth and continue on. our first witness is john bellinger iii state adviser from 2005-2009 and before that he was national security adviser from 2005 to 2009. we thank you very much for being here. second is the honorable dr. kathleen hick, director of the
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international security program at csis. she served for the department of defense during the obama administration and we thank you very much for being here, and as you know, you can summarize your comments to five minutes and look forward to our questions and i appreciate your expertise and begin in the order that you were introduceded. thank you. >> thank you, mr. chairman, ranking member, i agree with your comments that it's a privilege for me to be back in this distinguished committee. >> i want to command you for your efforts to reach the authorization against isis and i applaud the contributions for senator mccain and senator flake and i know you've had this for quite some period of time and it was a privilege to meet with you, and senator young for your recent contribution. thank you. i served as national legal adviser in the bush
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administration. i was in the white house situation room on 9/11, and i was involved in the drafting of both the 2001 and 2002 aumf. for my sins i then spent the next eight years engaged in almost daily discussions on the legal issues relating to the use of military force including detention arising under aumfs. 16 years after the enactment of the aumf and 16 years after the conflict with isis, congress should repeal the outdated 2001 aumf and replace it with a comprehensive aumf that authorizes the use of force with appropriate limitations against names, terrorist groups including al qaeda, the taliban, isis and associated groups. congress should also repeal the 2002 aumf which is no longer necessary. and. an updated aumf is legally necessary to ensure that our military has clear authorization
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from congress to use force against terrorist groups engaged in hostility against the united states and to ensure that you have detention operations withstand legal challenges in u.s. court. >> an updated uamf to organizations that committed the 9/11 attacks. it is increasingly difficult and i have been there to demonstrate that new terrorist groups that have emerged in the last few years are associated with al qaeda. it is not clear that the 2001 aumf authorizes the use of force against isis because isis did not exist, at least in its current form in 2001 and was not the group that committed the 9/11 attack. a new aumf specifically authorizes the use of force against isis and provides a clearer legal basis for detention of members of isis. an updated aumf should authorize the president to use all necessary force against named
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terrorist groups and associated organizations that have attacked or have an intention to attack the united states or u.s. persons. the aumf should include a list of specific groups which would presently include at least the taliban, al qaeda and isis and may include other named groups and allow the president to use force against additional organization if he notifies congress if he determines that the additional organizations are associated with the named organizations and are engaged in hostilities or plan to engage in hostilities against the united states. in my view a new aumf should not be limited geographically to certain countries. even if a new aumf does not limit the use of force to certain countries, the united states is still required by international law to limit its use of force in or against other countries. as a purely legal matter, i would oppose a sunset provision. a sunset creates legal
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uncertainty for the president and the military. however, i can certainly understand that some kind of a sun set or review provision may be politically necessary to achieve consensus on a new aumf, i would improve conditions that would micromanage the use of force by the president and the military such as an absolute prohibition on ground combat operation. if a limitation is necessary, i would support a clearer prohibition such as this authorization does not include authorization for the ground invasion or occupation of any sovereign country or parts thereof without further congressional authorization. it might include provisions providing certain procedural protections for the use of legal force against americans who join terrorist groups, authorizing -- might also authorize, but might provide procedural guards for detection of terrorist suspects
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captured by the united states and congressional reporting requirements. they should update the national war powers, which was a bipartisan commission by warren christopher called impractical and ineffective and i applaud the war powers consultation act of 2014 which was drafted by senators mccain and came to implement the recommendations of the commission. members of congress have understandable concerns about approving a broad, new authorization and extending what many view as a forever war. however, i am convinced that congress can come together to agree on a new aumf to the clear legislative authorization and congressional support they need to defend the united states against al qaeda, isis and other terrorist groups rather than continuing to rely on a
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16-year-old authorization. thank you for inviting me here today, and i look forward to your questions. >> thank you very much. >> chairman corker, ranking member cardon and distinguished members of the committee and i appreciate the opportunity to testify before you today. the subject of this hearing authorization for the use of military force is a critical one that fails to receive the attention that it deserves. open deliberations over the decision to use military force have been foundational to our democracy and its establishment. i will focus my testimony today on the imperative for a new authorization for counter terrorism operations and the essential constitutional roles congress must play in exercising its war powers through passage of a new aumf and the fact that congress should consider an effective division. i approach this not as a lawyer, but former implementer and evaluator especially involving use of military forces under the
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existing au in, f. the united states faces an array of threats from violent extremist groups thattes in estate counter terrorism in different parts of the world than they operate under provisions of the aumf which was intended to sanction under the groups and states involved in the planning and execution of the attack. u.s. military action on terrorist groups that have emerged since 9/11 including al shabaab and it's the category of al qaeda and associated forces provided under the 2001 aumf. relying on a 16-year-old authorization on al qaeda for current and potential operations against the islamic state and other emerging terrorist threats jeopardizes our nation's principal beliefs and the institutions designed to create,
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carry out and enforce such laws. alongside the courts, the united states congress can serve as a critical safeguard against any perceived attempt to fundamentally alter the quality of the civilian control of the military in this country. the path to reviving the exercise is still in control and it should start by repealing and replacing the 2001 aumf. it is not just an end on to itself. military force might be tied to policy objectives and the 16-year reliance on the 2001, aumf and the use of force in american history suggest the failure on the part of the nation's political leaderses to bear their strategic responsibility. a robust congressional role and use of force decision can spur consideration of policy alternative and raise important strategic considerations and build the public support necessary for sustainable, national security strategy. it strengthens our democracy and
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our legitimacy. most members of congress were elected after the 2001 au in, f and have not been party to a serious discussion on aumf. con skwebtly, the american public has not had an opportunity to witness and participate in an open debate over the nation's approach to authorizing forsz in support of the counter terrorism objective in some time. the administration submission to defeat isis as required by the omni bus approach yagpriations would be critical for setting the stage for that public debate. what is our goal? how should we go about accomplishing it? what's the role of u.s. military force alongside that of other national and international actors and schools without an honest and frank national discourse on our strategy, we run the rick of the executive branch's activities separating not only from the legal basis upon which the use of force rests, but also a disconnect between the will of the people and the military actions
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perceived by newly enacted government. to be effective, aumf should strike an appropriate balance between the ability to rapidly respond to national security threats and congress will exercise appropriate oversight. specifically, congress should ensure any aumf it considers to address key issues in the following areas and geographical limitations and special u.s. military force limitations such as regarding combat roles and reporting requirements, and associated detention issues and sunset provisions. stakeholders across the political spectrum support aumf, by the use of american military force. the range of current proposals originating from the house allow for repealing and replacing the 2000 mf. the type is right for reconsideration of the 2001 aumf and discussion of congressional
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war powers. thank you in particular for your efforts to draw attention to this matter and for calling this hearing today. i have walked through in my written statement my views on the various issues i referenced. i will will simply say mr. bellr agree on some areas, but most importantly we agree there is an imperative to get to a solution on a new aumf and move forward. thank you very much. i'm open for your questions. >> it is my understanding the minority party is not agreeing for us to go past noon. i understand the health care issue. there is some bucking up that is occurring. so we're going to remain five minute strict. please don't ask questions and end at five minutes. i really hate it. this is a serious discussion. we may need to reconvene. >> mr. chairman, i agree with you. i think this subject needs the
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open hearings in our committee. so i join you in finding ways that we can make sure we can have ample time for this debate. so i just want to follow up on both of you. i think both of you have had a lot of agreement. after the attack on september -- 9/11, all of us wanted to take action against those who caused that tragedy. and we had the vote in congress. we wanted to give the president maximum discretion on how to go against the perp retrators of tt attack. it wasn't terribly controversial, but it did contain a restriction. it was against those that attacked us on 9/11. and now we see that authorization being used against groups that weren't in existence on 9/11. so either one of you think that
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congress has authorized the use of our military force against the assad regime and syria? i hope that's a yes or no answer. >> i certainly don't think that's what congress intended 16 years ago. >> right. >> agreed. certainly not under the two aumfs under discussion. >> u.s. forces shut town a fighter jet in northern syria. and then we could get into whether he authorized the use of military force against the terrorist group isil, which i don't believe we have authorized. and yet i am in support of america pursuing these terrorists. but i don't think congress has authorized force. so i guess my first concern, when you give the president maximum authority, looking at what three previous administrations, what one current and three previous administrations used our
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authorization, don't we have to be particularly concerned how we define it so it's not misused by this administration? >> senator, i agree with all of what you just said and i think the challenge is going to be to try to get that tailored authorization that authorizes the use of force against the groups that we're actually fighting so that we have congressional support but that does have the appropriate limitations. and rather than continue to lead, let successive presidents stretch this authorization that was used for a particular purpose, this is actually a time when some appropriate limitations that all could agree on could be add ed. it has been stretched beyond the recognition of what was passed in 2013. i agree. >> dr. hicks, i want you to answer this next question. you have an administration that says i'm using president obama's determination. i can do anything i want to do so why should i bother dealing
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with congress because i have all the authorization i need. i agree with you that congress has a responsibility to be clear on its authorization and to repeal the 2001 and replace it. how do we do that when we don't know what the president wants to use as far as military force? he hasn't come to us. >> as i said in my testimony, i do think having that dialogue and certainly in the form of a strategy from the administration is central to understanding the right set of tools. >> but they're not having it with us. >> i'm sorry? >> the administration is not having that dialogue with us. >> i'm in complete agreement with you. you all have passed a requirement for them to submit that. it has not come in. that said, i think you can still move forward on an aumf. it may not be what they ultimately desire, but the burden is on them to come forward with their straj. >> so the fact that you have an authorization out there that's being misused is more important for us to clarify than knowing
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exactly what the administration wants. because normally congress doesn't pass an aumf unless the commander in chief wants an aumf. >> you do have the administration certainly from the defense department wanting a new aumf. i think the issue here is there is a major policy and strategic issue in terms of where we go on the counter isis campaign and counter terrorism more generally. and that issue is not going to go away in and of itself by pass j of a new aumf. but by the same token, you need a new one or they will just continue to act under the -- >> and i think both of you agree we should repeal those and you understand the need for a new process. >> you are a great example to
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all, senator. >> thank you, mr. chairman. i want to thank the chairman and the ranking member for having this hearing and for not just in this area but in all areas looking to reassert this committee and our proper constitutional role with regard to foreign policy and nowhere is that more needed in my view than in this area. the constitution gives the congress the authority to declare war. if we're not going to declare formal war, if we're going to move forward on the basis of an aumf, then certainly congress needs to be more involved. and i think that we've struck, myself and senator kaine, pretty decent balance here in terms of the interest of the committee and its members. and i hope that we can move forward on that basis. i just wanted to address a few of the topics but say as well, i think that to work on the basis
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of a 16-year-old aumf is simply not tenable. our allies need to know where we are. our adversaries need to know where we are, that we speak with one voice. our troops in the field need to know that we speak with one voice. not having a current aumf allows congress, let's us off the hook, allows us to criticize the administration of either party and when we should be involved and have skin in the game, as it were. and i'd really like your thoughts. and i appreciate your thoughts on a sunset in an ideal world. we didn't have a sunset with regard to world war ii. i would note that was against sovereign government where unconditional surrender is the only acceptable outcome.
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here when you are dealing with nonstate actors it is not quite as clear-cut. and i would note that in the house, when we voted on the aumf in 2001, it was a much sufficiedifferent body with different members. 300 members who were in the house today did not vote on the 2001 aumf. more than 300 members of the house of representatives. here in the senate, i don't know how many senators voted on the 2001 aumf. 23. so three-quarters of this body has not voted on an aumf. and when you have a situation like that, we are not speaking with one voice. we are, you know, let off the hook. we can criticize the administration. they can criticize us. we need to be together on matters of foreign policy as this important. that's why i'm so pleased we are moving ahead on this.
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can you give some thoughts on that with regard to a sunset. is it a little different situation when you are dealing with nation states as opposed to nonstate actors? >> thank you, senator. i completely agree with all of your remarks, both on the overall philosophy and particularly the need to back bar armed forces. as all of you know, i think all 535 members say that we completely back our military. we want to give them the resources they need. but one of the resources is legal resources. legal backing. i, as a lawyer, want our troops to have the legal authorization that they need, and the current law is unclear now as to whether the fight that is being fought is actually legally backed by congress. and if it actually comes to detention and we start detaining members of isis, members of isis, if they have an opportunity to get into court are certainly going to say that it's not authorized by congress. perhaps the president will fall
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back on his article two powers, but there are real practical concerns about this stretch to have the aumf covering isis. on the sunset, yes, as a legal matter, no administration lawyer is going to go in and propose, please end my authority in three years or five years. it just creates legal uncertainty for commanders. as i said in my written testimony, we would never have done that in world war ii to say we're declaring war but only for a year and then we'll revisit it in a period of time. and this is a serious threat. so to have congress tell the military, we're only in it for a year or couple years is legally problematic. but that's from a legal perspective. from a political perspective i certainly understand members of congress and the american people have said the last stay of aumf lasted for 16 years and got stretched. this time i would like to have a sunset. i think that is a political reasonable thing for you to
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agree on. i just saw as a lawyer one would not want to go in asking for a sunset. >> another great example. >> thank you. thank you, ranking member. thank you to the witnesses and thank you to senators blake and for their hard work in framing what we are discussing today and for the committee as a whole. i think this is an opportunity for us to demonstrate how the senate can work well together in an important and difficult constitutional moment. when the president sends american troops into harm's way, those men and women, their families and the american people deserve clear authorization from congress, a robust debate in congress, a straj that outlines the path to success and at the moment i'm concerned we have none of those three. president trump has not yet presented to us a strategy. i am encouraged to see we are
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having that hearing today. i'll note the absence of an administration witness. the decision to send americans off to fight in battle deserves our thoughtful considerations and bipartisan effort to produce a clear path forward. this isn't a partisan issue. we have more than 8,000 american troops deployed in afghanistan and there are reports several thousand more they soon be deployed. we have hundreds of troops in syria, who have been taking fire from isis and assad forces in one of the most dangerous and complicated battle stages on earth. we all want them to succeed. but what does success look like? how do we define success? that requires a strategy. what are the national interests we are defending on these battlefields? we have to have a conversation between the branches about what their goals are and what it would take to achieve them, particularly when it comes to our military, i am not here to criticize the president or
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disagree with my colleagues across the aisle. i am here to work with them to provide them the resources, support they need. so if i might, i am encouraged that our witnesses, both largely agree. would you take the time i have left to talk to what are the strengths of the aumf proposed by senators blake and cain and what require amendment or improvement? i am encouraged by what's been framed and what's been presented? >> we do have a couple of areas of disagreement. but i do point out, senator, because we agree on many of these areas. i think the one thing i would take a moment to comment on is, i think it is a great beginning of that conversation in pretty much every area i talked about. two areas not covered under it that need discussion, not necessarily ultimately inclusion, but discussion, are the detention implications and then the second is is there a
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special attention to be paid to forces used in a combat role. i would say senator schiff, which speaks to the issue of ground combat forces and as soon as possible notification. it is not an exclusion or a limitation, but a notification procedure that is faster or use of force in his case for ground forces in a combat role i think is an appropriate balance for giving flexibility to the commanders in the executive branch while at the same time allowing the fastest possible dialogue to begin with congress. i'll stop there. >> thank you. >> and i'll just, senator, focus on two things. and, again, i thank senators cain and blake for working incredibly hard on this. i know you listened to hundreds of people to get what the concerns are and try to get it right. i guess i'd say one thing is nice to have and one i think i would try to fix. the try to fix is the limitation
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on associated forces that happen to be part of al-qaeda. i'd at least like to talk to you more about that. i know you must have gotten that after a lot of thought. one of the top two or three hardest things that's defining the associated forces, so the congress is not authorizing use of force against associates of affiliates of people who say nice things about al-qaeda, you know, we want it to be either al-qaeda, groups that are fighting along with them and keep it narrow. the part defined as an associate as part of al-qaeda seems to be too tight and there may be groups that are using the terminology that most administrations. you have a different group that is fighting alongside an ally with al-qaeda, but they really are a different group and they are not part of al-qaeda or
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isis. so that is one thing that i would be -- that's a little bit too tight. i think you want to keep it tight. and i do think that association can't be just a group that shares the ideology, but is writing white paper somewhere. it's got to be a group that is, in fact, fighting along with al-qaeda in some way. >> thank you both for your testimony. i appreciate the opportunity to get your input. >> i want to thank your chairman for his leadership in convening this panel about this important issue. i also want to thank my fellow members for their long-standing leadership on this matter. mr. bellen ger, dr. hicks, you have each spoken to the importance of and the appropriate of an aumf, not just debating it but congress passing an aumf focussed on isis.
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allow me to focus this for a moment and ask a question of you in this way. if in one year, two years, got forbid five years, u.s. forces remain engaged in hostilities against isis and congress still has not passed an aumf, why do you believe the average american, the rank and file hoosier should be concerned? >> i'll say one thing legally and one thing more generally. legally, it's not clear about detention authority. if we do start detaining members of isis under this old 2001 aumf, there really is potential legal imfirmty. so long has not acted to provide clear authority to detain members of isis. more generally, i would say that the american people, you should be concerned that our congress, while saying that they are backing the military is not giving the military the legal
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support that they need. congress does not have your back legally. >> let me just add to that that we're a nation of laws, and if we lose that, i don't know what we stand for. i don't know why americans should believe in the institutions, you know, that they have elected and that they support for the course and i think that's a problem for american moxsy. >> well, so, there is some overlap between my concerns and yours. i, of course, am concerned about our constitutional prerogatives, obligations and duties as elected representatives of our respective constituencies. and this is not a power, a war-making power that can be delegated to the executive branch. we can't outsource our responsibilities. as difficult as it might be to come to terms on these issues and i do belief that we can find some principaled compromises in
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the aumf. as a former marine corps officer, i perhaps am more sensitive. maybe not. but i am certainly very sense tiff to the fact that we don't want to leave our troops in the field in the lurch. they do need to know that the american people through their elected representatives have their backs. and i think even having a debate on this issue shines a bright light on the sacrifices they're making and on the propriety or impropriety of our involvement in different areas. and lastly, i believe that this new aumf would address the concerns mr. belliger you have mentioned several times throughout this hearing about detention authority. i was a marine corps intelligence officer. i understand the importance of human intelligence from detainees and other sources. it helps save lives on the battlefield and here on the
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homeland. but it is not clear that under current authorities that can be done. so i intend to build on my efforts, having done the best i could to draft an aumf, and i am prepared to make principled compromises with other members of this committee and congress as we move forward so we could formulate an aumf that could pass this committee and pass out of the united states senate. >> with respect to the authorization to detain, i know it's been mentioned time and again, but i want it to be reinforced. so, mr. bellinger, do you believe detaining terrorist suspects outside of the u.s. would be legally helpful? you have already said yes. why is this so important? >> the courts have held that the words all appropriate necessary force do include the authority to detain. so the courts have said that. but it would be more helpful if
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congress were to specifically say that and particularly with respect to isis. so if we don't, there will be an implication of habeas, there would be a habeas petition filed. is that correct? can't we predictably say that that will happen from a number of these detainees from recent history. >> potentially yes. if they're held somewhere else, it's not clear if they would have the right to habeas. >> to the aumfi put together does make crystal clear that this is within the authorities we have and we could get the combatants off the battlefield and i would hope this would be part of the future aumf. >> thank you so much. >> and thank you, mr. chairman, for holding the hearing. i hope we can use it as a catalyst for this body and take up its constitutional responsibility of declaring war and guiding the civilians who
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must make the most consequential decision of sending america's sons and daughters into battle. in 2014 i authored military force to combat the islamic state. as chairman at the time we worked with the executive branch as it developed and sought congressional support of the authorities it believed it needed to confront growing threats against the united states in our strategic interests. we did so with a deep understanding and clear guidance of what we wanted to do. we may not have all come to an agreement as to all the elements of it, but there was a sincere effort. i was disappointed that the house failed to take up the legislation and failing to deliver is nothing short of an abrogation of constitutional duty. with this precedent quietly
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delegating authorities to the secretary of defense and commanders of the field, i think it's critical that this committee and the congress as a whole embrace our overnight ssi duties. campaigns from camped up. i read up about afghanistan and i continually have a sense that what the totality of the strategy is. as congress considers a new aumf, how should we determine the president's delegation of civilian control to the military itself? should and how can congress effectively weigh in when the civilians who are supposed to be making critical decisions, including where to send troops and how many of them, have delegated that authority to the entities of which they are supposed to be in control of? >> i think this is a very
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important issue to be raising, so i appreciate you asking the question. there is always a debate to be had over the degree to which the president should be delegating authority down into, in this case, the defense department. i think you are well aware that there was the view from the military broadly speaking that the last administration held that too tightly. i think the view of most of us who think at the defense community in a pretty bipartisan way think we're going the opposite direction. so the good news, i guess, is there is another civilian in the chain of command. he should be held responsible for decisions on use of force and so should the president, obviously. so there is a civilian in the chain that remains, but it is one. and what congress can do, obviously, is aumf, war powers
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enforcement, the power of the purse. and i would just add for this committee in particular, building up or maintaining or sustaining or protecting the other tools of national power that kind of fall out through that kind of decision when it moves from the president down to the defense department, even the most enlighten secretary of defense is going to be looking at this issue set through a military lens. that's his job. what you lose in that is any large consideration of diplomacy, economic tools, development, et cetera, that might be appropriate to the issue at hand. so anything you can do as authorizers in that space i think would be welcome. >> i appreciate that. i think it makes all the more compelling case for an aumf to be passed. since 9/11 we have grappled with confronting threats that known state actors, which makes the geographic applicability of any authorization a complicated subject and one you both touched
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on your testimonies. given the nature of the threats, how do we balance between given your leaders the ability to move between borders and not allowing this mission to creep into every country in fact world. for example, islamic states. some claim to be part of the islamic state but operating out of an allied country like the united kingdom. how do we deal with that issue? >> i completely understand the concern that one has, one doesn't want to be authorizing the use of force all around the world. my european colleagues were always worried that we were going to go use force in london or germany or elsewhere and i have to assure them that we weren't. i think -- and that reason is that international law limits our use of force. so i don't think a domestic authorization should limit the use of force against groups to certain countries. the authorization is against the groups. i think you are going to have a senate that says i think we should be limited to these seven
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countries, but i wouldn't specifically force can only be used in these countries because, as you say, senator, the groups move. but again international law limits where the united states can use force to those countries that have either consented to the use of force or are unwilling or unable to prevent a threat from their country. but i would not say -- force can only be used in these seven countries. >> i know you missed my riveting opening comments, but i did thank you for your on this topic. >> i got a full briefing of your opening. >> thank you, sir. >> you know, when you make your testimony and you use the words repeal and replace, you use it as a time that that used to be two verbs. now it's two verbs to con notate difficulty in the united states in terms of coming to a resolution, which begs my question. of the nonstate actors referred
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to by senator menendez and others, should we be specific in taking the actions of groups that we don't find ourselves handicapped because it refers to the 9/11 partners? >> i'll take a first cut at that. i do think you have to specify groups. i think the problem even in this discussion today and certainly in the last 16 years is this thorny issue of associated forces and then the process for expanding if you will the interpretation of associate forces and the ability to review and renew, which i consider to be an essential element of for congress to adapt just as the threat may adapt. so i think what they have done successfully is put a pathway in there where it names the forces, which i think is an appropriate limitation, but provides a
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process by which the executive branch can come forward with groups they would like to have added, if you will, to the list. and obviously they have to be able to defend the associated forces under the other criteria that would be in the provision, specifically relating, for example, to threats directly to the united states and its forces and other personnel. >> senator, i agree with that. i think it's important to have a list of names, groups that you are authorizing the use of force for, but since these groups can morph and there can be new groups, it is important for the president to be able to add groups. but we're not authorizing against groups completely unassociated. but you should authorize use of force against groups associated and engaged in the hostilities with the main groups, al-qaeda, the taliban, isis that you are
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authorizing the use of force against. >> so basically give yourself some flexibility to be more quicker in terms of a declaration against a quicker group and tieing yourself like we have to the last 17 years to the 2001 attacks; is that right? >> exactly. >> i would point out i think congress should be involved. i think an aumf does make a lot of difference. but i hope when we get into a robust debate, it will have an end point and decision. because inaction is worse than no action at all. thank you very much for your attendance today. >> senator. >> thank you very much, chairman. and let me just say that last week, with what we did, the russia ran sanctions, what we did on the floor, what we did on the committee and all the negotiations, i think that was a good example of what we need to
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do here in terms of reasserting the authority of this committee and reasserting the congress into these very important issues, especially the war making authority, which for too long, and i think both of you have said that, that we haven't stepped up. we haven't pushed to do our constitutional duty. and, so, i want to thank you both for your testimony so far. i, like some of my colleagues, i was in congress in 2001. and i voted for the 9/11 aumf to authorize military action against to sa ma bin law din. i would never imagine that vote supporting u.s. troops in 2017 in engagement with the assad regime and i don't think anyone else did either. and we have this -- as we're
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speaking, we have another drone being shot down, but we have this contact with a syrian jet. how do y'all view the -- and mr. bellinger, the legality of doing that under these current circumstances, when we're in syria without an authorization. >> so thank you, senator. on syria, i have to say, just on the law, i was puzzled about the statements coming out of the tack on that the shoot down was authorized by the 2001 aumf, and i hope that they will clarify that. i think the president may well have art cal two authority constitutionally. i don't know all the facts. but we may have decided it was in our national interest to shoot down the plane, but it is hard for me to see the congress by authorizing use of force against the nations and groups that committed the 9/11 attacks
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authorize the use of force against syria. >> you would say questionable legality at this point? >> the question may well have constitutional authority. he has broad constitutional authority to use forces been our interest. but it is harder for me to see that syria was one of the nations that committed the 9/11 attack or is associated with them or is a cobelligerent with them. >> i would just like to add. the other piece of this is clear, the lack of transparency. even going back to the strike against assad, against the air base with chemical weapons, i don't think we've seen a legal justification for that. i think congress should be insisting on seeing these and whatever means possible to get the legal basis that is being used. there may be a very defensible
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way they're framing it, but we don't know because we're not being told. >> the specifics on the issue was a sunset, i didn't hear you say what your position was on that because i wanted to ask a question on that. >> yes. i believe in a sunset. i think it is an appropriate way in which to ensure that you're adapting with the threat and keeping congress and the public engaged over course of use. >> that's one of the issues you two disagree on in some respect, i would think, is on the sunset. and let me just add a question to this. i've -- when we've considered these authorizations of force, i've added sunset provisions. and the reason for doing that is looking at the history of where we are today. i mean, what, in fact, has happened is congress hasn't stayed engaged. so one of the ways for congress to be engaged is as you say you're going to come back and look at this in three years or
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two years. and, so, how can you force that engagement within an agreement without having some kind of sunset. that's really my question. and you two may have a little bit of disagreement on that. and i only have 30 seconds. >> you only have 30 seconds. >> i'll just say, yeah, i come at this executive branch lawyer. i'm sure you understand the president and the military is not going to ask for a sunset on its authority and say please sunset my authority. but from a political perspective, particularly over the last 16 years, i completely understand that one might want to have a sunset. if i were in your position, would i vote for a sunset if that were a way to get consensus, i might do that. if i were writing the legislation as a lawyer who wants to not have uncertainty for my troops, i would not put in a sunset. >> thank you, senator. before you do that, one of the
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things is there is also a sunset annually because obviously congress can defund or put language in. senator paul? >> madison wrote that the executive branch is the branch most prone to war. therefore, the constitution granted that power or vested that power in the legislature. in no way did they argue art cal two was unlimited authority to engage in war, at all. in fact, most of the founding fathers would disagree with you on saying article two giving the president power to commence in war. to execute the war once the war is initiated. the initiation of war is congressional duty, not the president at all. even the war powers act a couple centuries later, nobody reports this. it has a reporting requirement in there, but it also says this reporting requirement for things that are imminent attack or
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authorized war. there is nothing in the war powers act about unthorsed war because we're not supposed to be doing it. so i agree completely with the authors of this that we should be doing something. i applaud their motives. i don't question their motives, but i do doubt that this will change any of our military interventions. are we going to take back our power? i think a five-year sunset is a -- you know, i don't mean to be mean, but it is essentially nothing. we've had millions of people in five year wars before. it's virtually meaningless. as far as the geographic meaning in there, if you look at geographic forces, part supports al-qae al-qaeda, the taliban or the islamic states. just the iz lalic state is in 32 countries right now. you add in taliban and al-qaeda, we're probably at least 50 or 60 countries. so if we're going to limit
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something, let's have a debate. if we're going to pass something to say we passed something, but it is not limiting, one of our testimonies today says basically you got all in art cal two is just being nice to have an aumf. no, it wouldn't be nice. there is supposed to be no war without an aumf. this is legal war at this point. so when we look at this, when we ask ourselves what are we doing here, are we going to limit the power, are we going to identify our enemy? but people say associated forces as if that's in the document. that's not even in the document. the document was very, very specific to 9/11. and we've had people just saying you can do anything you want now for 15 years. then there is the practical question. the practical question is doing anything you want, killing every perceived enemy and every per
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sooeed enemy in some misbegotten village, is it helping? i was all for going after the people after 9/11. i would have voted for that. but i don't think war in yemen is necessarily helping us. i don't think it made us safer. in fact, and i don't blame our soldiers for this. members of my family are active duty. they do what they're told. they're brave young men and women, but when they killed four or five al-qaeda people in a village and their wives and children, they're in the middle of the fire fight, is it better? we killed five. but what do you think happens in that village and surrounding that village for decades? for 100 years they'll be talking about the time the americans came and killed our women and children and the saudis dropping bombs on a funeral procession. that does not go away. these people remember the battle in 680 a.d. one of my favorite quotes is you
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have all the watches, but we have all the time. they are just going to be there and they will wait us out. we are not going to defeat terrorism by having war in 60-odd countries and dropping drones on everything we think in a village is of radical ideol y ideology. we have to defend ourselves. i will say now i won't vote for something that doesn't limit the president's power but gives a rubber stamp to what we are doing and i will argue our funding fathers did not agree with article two authority. in fact, they thought article two was unlimited authority to execute an already initiated war. if you look at every founding father, whether it's washington, adams, jefferson, they all believed that the power to niche ya nicheuate war, but jefferson worried that he would come back and he did come back and they
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did vote on authorizing that activity. that's not what we're talking about. we're not talking about repelling attackers in the open seas, which i'm for. we're talking about worldwide war and i think this authorization will not limit that in any way. i have no question. thank you. >> senator paul, would you yield to a question? and this is not a belligerent question. indeed, i think that your comments are exactly the kind of robust debate that congress needs to do and the american people need to do and that the founding fathers intended when they put those provisions in there. and i ask if you would respond. and again this is not a belligerent question, but there are people who argue in response to your allegations that, well, what we're going is illegal. they would argue that, look, congress has to authorize military force. there is no exact way they have to do it. one of the ways they can do it is by appropriates funds for it, there by giving it the okay.
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so there are people that make that argument. how would you respond to that? and this is not a belligerent question? >> i appreciate the question. i think it goes to the heart of the matter. there are two ways you can initiate -- you can initiate war. you initiate through an authorization and then through funding. you can discontinue funding. that's one way of ending it. but you are trying to end something if it was never initiated. currently we have a war never initiated by congress and you would be trying to end it by funding. we would argue that practically it's very difficult to stop funding because the argument will be, you know, like i say, i've got active duty and members of my family over there. do i want to stop funding them in the middle of their battle? so it is much more difficult that way. but i think the debate, i think, was intended to be at the beginning before we begun funding on war and even during vietnam, the most acrimonious our country has been in terms of war other than the civil war, i think in the very end we still
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didn't defund it. we might have defund it after people left vietnam, but we never voted to defund a very unpopular war. so i would say and for constitutional purposes our job is before we get to the funding part. >> senator kaine, you have been a real leader on this issue. >> thanks to all my colleagues. and i appreciate the chair and ranking doing this hearing. i appreciate working together with your efforts and to our witnesses. this is an obsession. i represent the state that is most connected to the u.s. military. i have a child who is a marine infantry officer. it is an obsession of mine. and i think this is about lessons learned. and i will talk about what this bill does and i have one question for you. lessons learned after 16 years. if we can't learn some years after 16 years of war, shame on us. we ought to with able to learn some things. i have learned some things, too. this is the third aumfi have introduced. one on my own in september of '14 right after president obama
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decided to go on can fence against isis. one in the summer of 2015 and then this is number three. one of the things i have learned it is hard to craft an authorization against nonstate actors. it is one thing against a nation. nonstate actors which we're going to be living with for a long time pose some additional challenges. but it is very important that we do it. while you have some points of disagreement. i applaud the fact you agree on more than you disagree. but you especially agree it is time for congress to act. what does the bill do? there is one area where senator paul is inaccurate. we try to fix three problems with the limitless status quo. first we try to fix who are we fighting against. by naming groups, specific groups, not perpetrators of an attack, specific groups, we try to fix who are we fighting against problem by fixing the associated force definition. it was not contained in the
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original authorization. it's got two components, not just one. you have to be connected with al-qaeda, isis or taliban. but you also have to be engaged in hostilities against the united states. so it doesn't authorize anybody connected to the taliban. we're going to go after them any where. but if they are engaged in hostilities against the united states, that's the second factor. and we additionally have a listing process where the president actually lists those groups that have to meet both criteria. and if congress believes that he's listed a group that actually doesn't meet the criteria, we have a resolution of disapproval process to strip a group away. that's the first issue we try to fix. who are we fighting against. the second issue we try to fix is where are we fighting? the 2001 authorization had no geographic limit. this allows action to take place in the current handful of nations where we are engaging in
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activities against the taliban, isis or al-qaeda. and then it allows a similar listing process. if the president believes we need to take action against those groups or that tight definition of associated forces elsewhere, he can come forward. and must to take action there. but again congress has the ability through a resolution of disapproval to deny that if we think that's an unnecessary stretch. and the third problem we try to fix is how long will we fight. 16 years in, we've learned something and we learned about sort of zombie authorizations that can go on into perpetuity. so i wish we had a phrase other than sunset clause, but what we've done is we've put in a mandatory review at five years, which is actually 21 years, if you count the first 16 years of this. so at 21 years, we would have a review to determine whether we needed to go forward and senator flake and i put a preface in that gives it expedited
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consideration, but under normal voting procedures. so it would take the 60 vote to continue beyond. these are three problems that list. these are three things i think we should have learned from and areas that we addressed and other issues. senator young raises a good issue about detention. we didn't address that. that's why robust discussion and debate and amendments are going to be necessary in the committee. to conclude and ask you one question, it is time to do this. it is a new administration. that's always a good time to do this and we have both the secretary of defense and the joint chiefs of staff, who as recently as ten days ago testified before the armed services committee and said we should do this. these are president trump's appointees. our military leadership is telling congress we should do it. it's time to do it. you each said things that you think are important. you didn't say this, and i want to ask you if you think this is important.
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how important is it that we do this in a bipartisan way, as opposed to a partisan vote? >> senator, thank you. senator paul is not here anymore, but i think actually your bill would place the limitations. you can about you about how the limitations should be done. but instead of having a broad authorization, this allows certain limits to with placed on it. i think you have raised important points. on detention, although i know different groups raise concerns about legislating that, i see that an opportunity to put in safe guards to make sure you are safe, ensuring the right people are detained and for no longer than is necessary. so it is a place to put in safe guards. on your question, i think it is important to do this in a bipartisan way. i come away from this hearing agreement largely on the need for a new authorization. i am convinced that members can work out these details.
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they're important points, but we ought to be able to get that language. and i'm convinced that this can get done and should get done in a bipartisan way and thank you for your leadership in doing it that way, at least from the perspective of one lawyer. >> i would add i completely agree with everything you said and this is not a partisan issue. there is broad bipartisan subpoena probation report beyond i don't think as well from the human rights kmun tie to the military community. and this is about the role of congress. this is about the fundamentals of our democracy. >> i find myself by myself. and unprepared. let me ask you this. we were talking about the fact you had written the aumf back in
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'01. it's been very durable. but if you were going to start from scratch, i know that flake and cain have done great work and we appreciate that and we've got numbers of iterations. what are some of the -- and i know you have been asked this in different ways. but if you were starting from scratch, what would be some of the attributes that don't exist in this one or do exist with -- or don't exist that you would add or do exist that you would change? >> well, you give me too much credit, senator. i drafted the 2001 aumf i was the legal advisor when it was drafted. so the pointed end of the spear -- >> yes, i remember some grammatical errors and you don't want to claim that. >> yes, sir. but i was there when it was drafted, was consulted on it and of course it was drafted very quickly and just a couple of days after 9/11 when the
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pentagon was actually still smolders. but i do think now if one were starting from scratch, one, we have new groups that didn't exist at the time. so it is important. >> i'm talking about currently. >> currently. >> currently, yes. >> the current aumf. >> the one that has been proposed. >> oh, the hans lake? >> yes. i would say two things. one the associated force definition is too narrow for me. i at least like to hear from senators flake and cain why they said this for a group to be associated it literally has to be part of al-qaeda or isis. there certainly seem to be groups that are fighting along with al-qaeda or isis but are not part of al-qaeda. so i'm sure they had a reason for drafting it that way. but that did strike me as too tight. i certainly understand the
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concerns that you don't want to go too broadly to say anything that is associated, meaning they met in the street sometime or said something nice. that's too broad. but the way it is currently drafted seems to be too narrow. i would add some detention provisions ideally. but the affirm ti pative power detain i would. if congress is authorizing the detention of people under the laws of war, there ought to be protections to make sure that the people that are detained are the right people and for no longer as necessary. i defer to you all on the disapproval provisions. i know senators flake and cain worked very hard on those. it is a lot of lines and a lot of pages that are quite complicated. >> let me hone in on this this one moment. we've addressed numbers of issues, for instance in the you shallen sanctions bill this week that exactly work in exactly the opposite way.
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in their particular situation, they sunset and put a next time of procedure in mace to extend it. the opposite way of doing that is for congress to at any time have the ability to end it through a vote. and in many ways it will be safer, it would keep us from being in a situation where you end up with no authorization to deal with what's happening around the world. can you give any input there as to which you think is a better place for us to be and actually both of you where, instead of having a hard deadline and expedited procedure and people know that's coming and people around the world wonder if we're going to continue on, instead of having that, have just the reverse of that where congress can at any time end it and congress can at any time state that we don't want to be involved in a certain country with a certain group. >> senator, i think that's an excellent question and gets to my point about the sunset as to whether my legal preference would be to not have a sunset
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because then it ends and if you are the military to know that your authority ends is at least problematic. i would rather have a review provision after a period of time rather than to know it is going to end. but i have to defer to y'all if it is better to have an end and then reauthorize. i can understand that. but preferably as a legal matter and you are in the military, you don't want to know at least now that your legal authority is going to go up in smoke and just hope that members of congress will reauthorize it after a couple of years. but i do understand the politics of this. >> in 20 seconds, dr. hicks. >> the department of defense would love it if it had a five-year budget authorization, too. i think it is very reasonable to put a sunset on the authorizations here, and i do think as senator kaine was saying, it creates an incentive structure that drives congress to take on its role in the conversations. i don't think it's unduly
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burdensome to the military commander. five years is essentially a lifetime in how they think about their authority. >> thank you. senator marky. >> thanks, mr. chairman. dr. hicks, in your testimony, you say it is appropriate for a new aumf to create a most stringent notification requirement for the president's use of ground forces in combatting terrorist groups and recommend language including in hj rez 100 that gives the president authority to send our men and women into combat as long as he notifies congress as soon as possible. what is your perspective on whether we should include in a new aumf a requirement that the president notify congress within 48 hours after he substantial l enlarging forces where combat appears likely.
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>> i think the new challenge in all aspects is this all babalai the national command authority needs to authorize force in defense of u.s. interests and the appropriate roles of congressional oversight. i think that the bill put forward by representative schiff with regard to notification on ground force -- ground force use in a combat role is an example of an appropriate balance. it allows congress to have the earliest possible opportunity to engage in the conversation. over a discussion of resources being expended, principals, et cetera. but it also doesn't really create a burden for the commander. so i think that is a reasonable way forward. >> thank you. the use of targeted killings, most prominently used armed
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drones is a form of use of armed force and ought to fall under the congress's raw powers. what is your perspective on the interplay between the multiple sources of authority for the government's targeted killing programs and congressional oversight on these operations under the war powers act? >> the executive branch is carrying out, as i understand it, a drone attack, target killings under a variety of different authorities. some of them by the military or under the aumf. some of them may be under intelligence authorities. conceivably under the president's art cal two authority. although, i think most of it is probably authorized by congress. >> so you suggest that we do the raw powers act. how would in your view a new authorization deal with this issue? what would be the recommendations you would make in terms of the restrictions of
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notification that would have to be given to congress? >> right. the -- i don't know that they would address the drone issue. i think you mean more generally. >> the targeted killing issue, yeah. >> on to the war powers resolution, changes that most people think are necessary would address the drone issue. they have more to do with the 60-day clock. >> so you don't think it would have any -- if we revise the war powers act, it wouldn't relate to the targeted killings policy? >> of course you would revise it any way you want to revise it. but i don't think i would or i have heard anybody say that the war powers resolution flaws are things that really are related to drones. they are related more to the problem with the 60-day clock and president stretching their authority to avoid the 60-day clock in the war powers resolution. >> thank you, mr. chairman. >> thank you.
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senator murphy. >> thank you very much, mr. chairman. i wanted to turn back to this question of the president's a article two two and a set of events playing out as we speak inside syria. this morning we have notification through the press of the fifth direct confrontation between u.s. military forces inside syria and syrian regime affiliated forces. none of which is authorized. secretary tillerson stood before us and admitted as such, that there is zero legal authority, not even through a proversion of the 2001 or 2003 aumf to begin military action against the syrian regime. and yet it seems as if this isn't a series of one off incidences. we now have five incidences in 45 days. so i want to explore with you the limits of the president's article two authority in the
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context not of the campaign against isis but against a developing war between the united states and the syrian regime that may end up in a major shooting conflict that wi major shooting conflict that occupies all of our attention in the not so distant future. so two ways to view this. first is a justification that we are engaged in self-defense. i would imagine there is a limit to that argument. just because the other guys shoot first doesn't mean that you don't need an authorization to continue to return fire. so we are now five engagements into the argument of self-defense. how do we begin to parse when this is article 2 authority and when the president needs an authorization? simply because you're sitting in a conflict zone is somebody is
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shooting at you, doesn't mean you can engage without us. second, at least one of these attacks on the iranian made drones is that its in defense of not of u.s. forces but in defense of non-state actor forces that who are supporting on the ground. that seems clearier. i mean that seems to me that's in no way in article 2, authority. and so i'd love for you to confirm whether my suspicions are right on the second count and to address the limits of article 2 authority with respect to this justification its self-defense. >> well, we can divide this up. and let me agree with something dr. hicks said i think before you came in, which is both of us would like to see clarity throughout the administration about their legal position. when the united states is doing troefbl things legally, we ought to say why we're doing them.
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we as the united states believe in the rule of law. we believe we are acting legally. we always try to do that, and if we are, we ought to say why. and when i was legal advisor i tried very hard to explain our actions. and i would like to see those same things here. i would like to see clarification on the strikes of the chemical weapons and now. like you i see -- i have a hard time seeing that congress authorized the use of force against syria in the 2001 aumf or its authorized the use of force against syrian aircraft because they were doing something to groups that we were supporting. i've not yet heard the administration's position, so i'd like to hear that. but i don't really see how it can be justified under the 2001
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aumf because syria is not one of the nations that committed the 9/11 attack. so therefore i assume it must be under the article 2 authority. and there it would have to be under a national interest test. and for us to know that we would have to know what was the national interest that the president saw. finally, that's all a matter of domestic law. i as a legal advisor of the state department want to make sure we're acting consistent with international law. so your points about self-defense i think are important. we do not appear to be defending ourselves. we were defending someone else. so it's not clear at least to me until there's a selective right of self-defense. so this is why we should hear more about the administration's justification. >> my recollection is that in the 2014 reflection of aumf, i
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think the same should be done with secretary tillerson to broaden to include inside syria. >> thank you. i'm not sure national interest is very broad. others would say its imminent threat. that's a really important distinction for us to consider moving forward. >> on behalf of the committee i would ask what authority they're relying upon this. i would say that what we find is just as some limitations you said recallier about no ground troops in countries, and let's face it there were a number of members that wanted to limit our ability to have ground troops. and so what we've begun to do as a nation is -- so is a group we've armed, that we've trained. and after this the assad regime
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and russian airplanes have come against them, the very group we're supporting. so if we're going to rely upon processes and we do that in many cases because they're indigenous and they can govern after the fact, we have to make accommodations for if they come under attack from others, and we're giving them support of any kind, we've got to find a way to address that. but would you guys like to respond on how we might write in aumf that takes into account we might take on proxies, they might come under threat, how do we deal with that? >> i think there's a policy matter and a legal matter. as a policy matter, you're absolutely right, senator. if we're going to be supporting
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people in another country and they get attacked, we want to be able to provide support as a policy matter. as a legal matter, though, it really is much harder. we do not i think under the aumf or under international law have a right to be using force in other countries that has not consented to the use of force if we are not defending ourselves, the right of self-defense against us or defending collectively some other country. it's a stretch for me to see we have a legal right under the 2001 aumf or under international law to use force to defend a group. >> we have to have a strategy. we have to understand what the goals are, and then we have to have a legal basis that supports that. i think we're completely
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disconnected, frankly, on all these elements. and i think that's been true for some time to be fair to the administration. but i want to quick stop on a point that mr. bellen jr made on international law. we are short, if you will, all around. there isn't a u.n. resolution. this isn't an ally to whom we have a treaty. if we had a sense of? policy and strategy that we as a nation want to pursue, we could create for ourselves a legal basis. >> so both of you are going to be relied upon in the up coming weeks for input. i know that we're going to need to have likely another hearing because all that occurred this morning. and i'm going to go ahead and call this closed. if you could, the director will be open for business until thursday. i know you have other jobs, but
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to the extent you could answer very closely, we're actually going to be engaging from the committee at our level today. but we thank you beth for being here. i think this has been very, very helpful and with that the meeting is adjourned.
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yesterday senate republicans release what they're calling a discussion draft of their healthcare law replacement. the congressional budget office will score the bill by early next week when senate floor debate is expected to be begin. we've posted the bill at cspan.org. follow live senate coverage next week on cspan 2, online at
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cspon.org and online on the free cspan radio app. this weekend on cspan 3 saturday 6:00 p.m. eastern on the civil war the disbanding in virginia is discussed. >> remember, lee's terms had surrendered his army. they had said nothing about declaring the confederacy defunct. there had been no peace treaty and as of may 9th, jeffson davis eremained on the run. >> and then at 8:00 p.m. on the east texas oil boom on the mid-20th century and the expansion of usa oil businesses to saudi arabia and canada. >> saying that american oil
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reserves were going to collapse by 1970 forcing the country into a difficult situation. and so this kind of apocalyptic fear of america losing its oil sourceicize going to drive exploration abroad. >> and sunday at 4:00 p.m. eastern on real america the palestinian people film do have right. >> retaliation brings only further retaliation. an eye for an eye is often paid at high interest rates at our day and age. and at 6:30 president reagan's speechwriter peter robinson and richard bur recall the president's trip to berlin and the gate speech. >> i knew it was authentic ronald reagan. but, you know, history as president obama says, has a
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heart. and of course we would never celebrate that famed speech if in fact the events of 1989 had not trance pired the way they did. >> for our complete tv schedule go to cspan.org. sunday night on afterwards, financial expert nancy schneider and john detail how american families cope in a world of uncertainly. they're interviewed by catherine eden, author of $2 a day, living on almost nothing in a america. >> the risk of small decisions going badly is so much higher for people at the bottom. wealthier people make poor spending decisions all the time. i can come up with some from me from the last year. but for me the consequence of that is really deminimized.
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there isn't one. but the conquence for people who are struggling is often really big. >> one of the pieces of data that really surprised me sif, the government survey is that between 2009 and 2011, there was a bit of an unusual period after the recession. but during that period 10 million americans were poor during every month of that period. but 90 million americans at some point were poor during that period. so a third of america experienced poverty at some moment in that period, often for a short time. >> that's huge. >> but it means we have to really rethink what's going on. >> watch afterwards sunday night at 9:00 p.m. eastern on c-span 2's book tv. last week secretary of state rex tillerson testified on president trump's 2018 budget

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