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Cardin Raises Legal Authority Questions at AUMF Hearing with Tillerson, Mattis

“…I do not think the American people want the United States conducting a global, endless ‘Shadow War,’ under-the-radar, covert, and beyond scrutiny.”

WASHINGTON – U.S. Senator Ben Cardin (D-Md.), Ranking Member of the Senate Foreign Relations Committee, delivered the following remarks Monday at a hearing on ‘The Authorizations for the Use of Military Force: Administration Perspective.’:

“I join you in welcoming our two witnesses, and join you in our strong desire for this Committee to operate in a nonpartisan way for the betterment of our national security. I thank you for conducting this hearing.

“This is one of the most important topics the United States Senate, and this committee, could ever consider: under what circumstances, and legal authorities, should the United States send our men and women into war?  Mr. Chairman, I’m pleased that you are reasserting this Committee’s prerogatives on this issue. I hope that soon we will also be considering the repeal of the existing, over-extended Authorizations for the Use of Military Force from 9/11 and the Iraq War, and a new AUMF tailored to the current terrorist threats.

“America faces unprecedented crises around the world: from ISIS in multiple countries and al-Qaeda affiliates continuing to plot attacks against the United States, to a worsening nuclear crisis with North Korea and a newly-manufactured crisis with Iran.  I am deeply concerned about President Trump’s inclination to go to war rather than find diplomatic solutions to these crises.

“It seems we have U.S. troops deployed almost everywhere in the world.  In addition to significant deployments in Iraq, Afghanistan and Syria, and major deployments in South Korea, Japan and Europe, U.S. forces are or have been engaged in counter-terrorism operations in Yemen, Somalia, Ethiopia, Libya, and Chad, with extensive advise, train, and capacity-building efforts in many more. 

“Two weeks ago, we learned that four servicemen were killed in Niger in circumstances that are still unclear; their mission, and the mission of what may be as many as 800 U.S. troops in Niger, is also unclear. The loss of these four courageous soldiers – Sergeant La David Johnson, Staff Sergeant Dustin M. Wright, Staff Sergeant Bryan C. Black, and Staff Sergeant Jeremiah W. Johnson – shows the danger faced by the men and women who are deployed around the world, whether they are deployed with the expectation of combat or not.

“Our hearts are with the families of those soldiers.  They served their country courageously, and their families deserve the respect and appreciation that all men and women should receive after losing a loved one.

“During this hearing, I’m going to be asking the witnesses some specific questions about the Niger incident, the mission these soldiers were performing, and the legal authorities for their deployment. That’s our responsibility – this committee’s responsibility. If our witnesses are unable to answer these in an open hearing, then I’m going to ask that you return to provide this committee a classified briefing.

“I think that we and the American public are now asking, if the U.S. is fighting and dying in Niger, where else are U.S. forces put in harm’s way? Some information has been provided to the Congress on this issue, including the June 2017 notice to Congress that the Chairman referred to.  But there has been inadequate explanation of what activities are actually being done, and under what legal authorities.  That is this Committee’s responsibility to deal with the authorization.

“Protecting the American people from terrorism stemming from threats around the world is certainly important.  But I think there needs to be more public discussion and light on these activities, because I do not think the American people want the United States conducting a global, endless ‘Shadow War,’ under-the-radar, covert, and beyond scrutiny.

“There have been developments since this Committee’s last conversation on this topic with the Secretaries in August. First, ISIS’ control of contiguous territory in Iraq and Syria has been broken, with hundreds of ISIS fighters killed and hundreds more surrendering. 

“Second, the crisis with North Korea has gotten worse, with North Korea testing both an ICBM with the ability to reach the United States and a thermonuclear device, amid a bitter war of words and threats between President Trump and Kim Jong Un.

“Third, President Trump has even threatened the use of a ‘military option’ in response to the crisis in Venezuela.

“Finally, I’m aware that we cannot discuss all the aspects of the use of AUMF in this meeting. The Foreign Relations Committee has jurisdiction over the AUMF and security assistance in the Senate, and an obligation to provide oversight as to how they can be used. Secretary Mattis and Secretary Tillerson, I will be asking you to commit to come up shortly to this Committee and brief us in a classified setting on the use of the 2001 AUMF, including for counterterrorism purposes.

“As I said at our hearing in June, the 9/11 and Iraq AUMFs have now become mere authorities of convenience for Presidents to conduct military activities anywhere in the world.  They should not be used as the legal justification for the Administration’s military activities around the world.

“I am not convinced that the evolving threat from ISIL to the United States and to our friends and allies necessitates committing more of our brave men and women to ground combat operations, and certainly not under the rubric of the 9/11 AUMF against al-Qaeda for their attacks in Washington and New York. 

“I’m going to repeat one more time for the record what that says. The 2001 AUMF says, ‘The president is authorized to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons in order to prevent any future acts of international terrorism against the United States by such nations, organizations and persons.

“As one who voted for that AUMF when I was in Congress in 2001, I never intended – I think all of us never intended – it would still be used today to justify the use of military force against ISIS.

“One last point if I might, Mr. Chairman. I think it’s very clear that under this authorization, there is no authorization for the use of military force against North Korea absent an imminent attack upon the United States or upon our forces or allies in this region. I would be interested in hearing the Secretaries’ belief as to what authorizations exist today for military options against North Korea.

“Finally, it is important for Congress to better exercise its oversight over the use of force now.  The United States has relied for too long on military force as the first response to the problems of terrorism, insurgency and instability abroad. 

“In this Administration, one wonders whether it has become the first and only response; it has proposed a dramatic increase in the defense budget, while the foreign affairs budget is slashed by 30 percent.  Very soon, practically the only tool left in the U.S. foreign policy toolbox will be a massive hammer, applied everywhere for lack of better options. 

“We need to both authorize, and to set limits, on the use of that hammer; in so doing, perhaps this Administration will rediscover by necessity the value of diplomacy, development, and support for human rights as the means to build a safer world for everyone, especially the United States.

“I know that our two witnesses share a commitment to our national security, and the importance of diplomacy and the use of our military, and I look forward to their testimony.”