Senator Bob Corker (R-Tenn.), chairman of the Senate Foreign Relations Committee, on Wednesday convened a hearing on S.J. Res. 59, bipartisan legislation to replace the 2001 and 2002 authorizations for use of military force (AUMFs) with an updated AUMF against al-Qaida, the Taliban, and the Islamic State in Iraq and Syria (ISIS).
The hearing is the committee’s fourth in the past year to examine the AUMF with testimony from legal scholars, policy experts, and the Secretaries of State and Defense. Committee members also met with the State Department legal adviser to discuss S.J. Res. 59 after the bill’s introduction in April. Wednesday’s hearing featured testimony from former State Department legal adviser John Bellinger and international legal counsel for Human Rights First Rita M. Siemion.
“We should take the opportunity now, after years of discussion and debate in our committee, to update the current authorities in a responsible manner,” said Senator Corker. “Our legislation gives the administration the flexibility necessary to win this fight while strengthening the rightful and necessary role of Congress, and I believe it is the best chance we have to finally address this issue in a constructive way.”
In his testimony, Mr. Bellinger endorsed S.J. Res. 59 as a “clear improvement” over the existing 2001 AUMF that satisfies the Trump administration’s criteria for any new authorization, including no lapse in existing authorities prior to enactment of a new AUMF, no sunset date, and no geographic limitations.
“An updated AUMF is legally necessary to ensure that our military has clear statutory authorization to use force against new terrorist groups that threaten violence against the United States and to ensure that U.S. military operations, including detention, withstand legal challenges in U.S. courts,” said Mr. Bellinger. “I am pleased that S.J. Res. 59 addresses the parameters I recommended when I testified before the committee in June and the prerequisites articulated by the Secretaries of State and Defense. S.J. Res. 59 appropriately balances the need for the president and our military to have a broad and flexible congressional authorization to use force against the terrorist groups that threaten the United States today with the understandable concerns of members of Congress from both parties not to authorize an entirely open-ended use of force…S.J. Res. 59 is a clear improvement over the 2001 AUMF with respect to the concerns of both the executive branch and Congress.”
Senator Corker’s full opening remarks at the hearing follow.
“We thank our witnesses for… being here. They are here to share their expertise on S.J. Res 59, legislation recently introduced by myself, Senators Kaine, Flake, Coons, Young, and Nelson.
“The bipartisan legislation would replace the 2001 and 2002 authorizations for the use of military force (AUMFs) with an updated AUMF against al-Qaida, the Taliban, and the Islamic State in Iraq and Syria (ISIS).
“It is the result of years of work and bipartisan negotiations that began in the 113th Congress when I first became ranking member of this committee. And the chairman [at the time], I know pursued this for some time, and we had votes on other AUMFs. I thank [Senator Bob Menendez] for his efforts in that regard.
“Since then, we have held at least seven public, full committee hearings on authorizations for the use of military force.
“Today will be our fourth such hearing on this topic in the last year, in addition to a classified briefing and a number of other meetings.
“Since last June, we have heard testimony from legal scholars, policy experts, and the Secretaries of State and Defense twice.
“During the drafting process, the administration outlined the following principles for any AUMF considered by Congress: number one, an AUMF must not sunset; number two, it must not be geographically constrained; and number three, it must be enacted before repeal of the 2001 or 2002 AUMFs.
“The proposal that is before us, or the one that we are discussing today, adheres to all three of those requests.
“After we introduced our AUMF, we held a full committee discussion with the State Department legal adviser. And I just want say that meeting, which we held off the record in [room] 116 where we do so much of our discussion, I thought was one of the best discussions we have had on an AUMF, and I think one of the reasons that the ranking member and others have requested that we have the legal scholars we have here today [is] to flesh out some of those issues.
“In particular, I want to thank Senators Flake, Kaine, Young for their leadership and hard work on this legislation.
“As we all know, the current administration – just like the Obama administration – believes that it does not need any additional authorization to use force against al Qaeda, the Taliban, or ISIS.
“And just for what it is worth, I agree. I agree one hundred percent. I thought the Obama administration had all the legal authority they needed to conduct the operations that were under way. I feel like this administration has exactly the same.
“But I also believe strongly that Congress should play a greater role in authorizing the use of force by enacting a new AUMF.
“The current AUMF is nearly 17 years old. There is widespread discontent that Congress has been unable to update it, and there is a high risk that we will do so in an irresponsible manner by simply sunsetting, at some, point the ’01 AUMF.
“There is also a growing risk the further we get from September 11, 2001, that the courts could call into question or limit the existing authorization.
“We should take the opportunity in my opinion now, after years of discussion and debate in our committee, to update the current authorities in a responsible manner.
“The current AUMF requires the administration to trace terrorist groups back to the 9/11 attacks, which involves, let’s face it, some legal stretching as we saw in the justification for the fight ISIS.
“This AUMF updates the authority and clearly allows the president to continue to fight derivatives of terrorist groups as they morph and change their name whether or not they were around in 2001.
“Less than 25 percent of the current members of Congress were here when Congress voted on the 2001 AUMF.
“As a result, members were able to simply criticize the administration, which ever one happened to be in office at the time, and not bear any responsibility.
“This AUMF would ensure that Congress remains involved in these decisions, but does not hamstring the administration.
“Our legislation gives the administration the flexibility necessary to win this fight while strengthening the rightful and necessary role of Congress, and I believe it is the best chance we have to finally address this issue in a constructive way.
“I want to thank both of our witnesses and the members of this committee for their seriousness on this issue with which they approach the topic before us today, and I hope that together we can have a productive discussion on a way forward.”