August 03, 2021

Chairman Menendez Opening Remarks at Committee Hearing on Administration Perspectives toward Authorizations of Use of Force

Hearing Comes as SFRC Prepares to Vote on Joint Resolution to Repeal the 1991 and 2002 AUMFs

WASHINGTON – U.S. Senator Bob Menendez (D-N.J.), Chairman of the Senate Foreign Relations Committee, today delivered the following opening statement at this morning’s full Committee hearing on legal and policy matters surrounding the use of military force. Testifying before the Committee were Deputy Secretary of State Wendy Sherman, U.S. Department of State Acting Legal Adviser Richard Visek, and Department of Defense General Counsel Caroline Krass.

“I absolutely believe we must provide this – and any – Executive with the appropriate authority for conducting counterterrorism operations, but such an authorization must adequately reflect the true nature of today’s threats and challenges. As one who did vote in support of the 2001 AUMF 20 years ago, I can safely say we never could have imagined it being used as a justification for air strikes in Somalia or against groups that did not even exist at the time,” Chairman Menendez said. “In my view, it is irresponsible to keep this outdated authority on the books to address future, hypothetical threats for which it was never intended.”

Following today’s hearing, the Senate Foreign Relations Committee will convene a business meeting tomorrow to consider S.J.Res.10, a joint resolution to repeal the 1991 and 2002 authorizations for the use of military force (AUMFs).

Find a copy of Chairman Menendez’s remarks as delivered below.

“Let me start by thanking our esteemed witnesses for appearing before us today to help the committee consider the perennial challenge of ensuring an appropriate balance between Congress and the executive branch concerning the use of military force. 

I am holding this hearing at the specific request of Senator Romney and other Republican Senate Foreign Relations Committee members, who requested it prior to a vote on the 2002 AUMF repeal, as well as to jump start the broader discussion on 2001 AUMF and other issues surrounding the use of force. And I believe that this subject –which is ultimately on whether to send our sons and daughters into conflict – is one of the most solemn votes that any member can take. 

So with that in mind, let me start with the repeal of both the 1991 and 2002 authorizations. Let’s be very clear about what we are talking about.

The 1991 resolution authorizes the United States Armed Forces to take action to ensure Iraq’s compliance with UN Security Council Resolutions related to Saddam Hussein’s invasion of Kuwait. The 2002 AUMF authorizes the Armed Forces to take action against the continuing threat posed by Iraq, which at the time was still under the rule of Saddam Hussein and the then Administration claimed was developing weapons of mass destruction. We now know that was simply not true.

Regardless, these authorizations simply do not reflect reality, which is that any U.S. troops currently in Iraq are there at the invitation of the Iraqi government. Indeed, the President just welcomed Prime Minister Khadimi to the White House for a Strategic Dialogue. It simply makes no sense to keep an authorization against Iraq. The Biden administration has made clear through a formal Statement of Administration Policy that it is not relying on the 2002 AUMF for ongoing operations or detention authority –logically – as the terms of the AUMF applied only to threats emanating from Saddam Hussein’s Iraq.

In my view, it is irresponsible to keep this outdated authority on the books to address future, hypothetical threats for which it was never intended.

Some have made the argument that repealing this authorization would somehow show weakness or lack of resolve, particularly against Iran, as it continues to attack our forces in Iraq. However, I see little logic in this argument. Iranian-backed militias derive much of their support from the false narrative that the United States is still an occupying power of Iraq. Repealing the 2002 AUMF would clearly show that we are there in support of the sovereign Iraqi government.

And let’s be very clear. Repealed or not, the 2002 AUMF does not authorize any military activity against Iran. That is not to say that the United States will not show resolve against Iran as it continues to threaten our people and our national security interests. But the 2002 AUMF provides no authority to do that.

Beyond the 2002 AUMF, I would like to use this hearing to start a serious discussion on repealing and replacing the 2001 AUMF, another 20 year old authorization.

I absolutely believe we must provide this – and any – Executive with the appropriate authority for conducting counterterrorism operations, but such an authorization must adequately reflect the true nature of today’s threats and challenges. As one who did vote in support of the 2001 AUMF 20 years ago, I can safely say we never could have imagined it being used as a justification for air strikes in Somalia or against groups that did not even exist at the time.

Now I appreciate that the Biden administration and National Security Advisor Sullivan have been engaging with the Chair and with interested members on the question of what a 2001 AUMF repeal and replacement would be. We look forward to having those continuing discussions on the path to being able to achieve that.

Of course, the President has authority under Article II of the Constitution to repel attacks against the United States and against our personnel, but we must have an honest conversation about the scope of this authority and the power of Congress under Article I of the Constitution to declare war. The Office of Legal Counsel at the Department of Justice has advanced a theory that Congressional approval is required only for actions that rise to the level of war based on the conflict’s ‘anticipated scope, nature, and duration,’ and if the action serves ‘important national interests.’ This interpretation is a self-serving, one-way ratchet.

Over time, it has enabled the executive branch to justify large-scale uses of military force without any congressional involvement, stretching the Constitution in ways that would be unrecognizable to the Framers. A rebalancing is in order.   

Finally, over the past decade, the U.S. government has advanced a more aggressive strategy in cyberspace. We are all aware of recent cyberattacks and significant cyber campaigns launched by state and non-state entities in Russia, China, North Korea, and Iran.

President Biden has made it clear that the United States will use offensive cyber capabilities when warranted and will accelerate U.S. operations to disrupt and to ‘defend forward’ against foreign cyber operations. The increasing use of cyber operations implicate a host of AUMF and war powers issues. I firmly believe the Committee – and I will be pursuing this – needs to be more assertive in our role as it relates to the use of force in the cyber domain and that the executive branch needs to be more responsive to our requests in this area.

So, there is a lot to address, but I do believe that our goal in repealing these two authorizations that were for a time and place, against a country with a leader that no longer exists, for which there is no authority to deal with any challenges with Iran, and which actually serves as fuel to militias to say we are an occupying power, need to be repealed. And I intend to move forward at a business committee meeting to do exactly that.

With that, let me recognize the distinguished Ranking Member Senator Risch.”

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