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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
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                   STATEMENT FOR THE RECORD CONNOLLY
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            RESPONSES TO QUESTIONS SUBMITTED FOR THE RECORD
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