December 13, 2017

Cardin Expresses Concerns, Raises Questions about Presidential Use of Military Force Issues

WASHINGTON – U.S. Senator Ben Cardin, Ranking Member of the Senate Foreign Relations Committee, delivered the following opening remarks Wednesday at a hearing on “The Use of Force: Strategic, Political and Legal Considerations.”:

“Mr. Chairman, thank you for convening this hearing.  As I said when Secretaries Tillerson and Mattis were before our committee this is perhaps one of the most important responsibilities we have in the Senate Foreign Relations Committee, to consider circumstances and legal authority for sending our men and women into harm’s way. So, I thank you very much for this hearing and I welcome our distinguished panel. We have some really great experts here who I hope will engage us in this conversation.

“America faces unprecedented crises around the world, from the continuing terrorist threats presented by ISIS and al Qaeda and their affiliates, to a worsening nuclear crisis with North Korea, to the growing proxy fight between Saudi Arabia and Iran destabilizing the entire Middle East. 

“President Trump's apparent inclination to use military force and to risk war rather than find diplomatic solutions to these crises is troubling.  His attitude toward diplomacy ranges from disinterest to naivety to actively sabotaging his own Secretary of State.   

“Finding the proper balance for the authority to use force is not unique to this President.  The last two Presidents have stretched their authorities to the breaking point, especially in the use of the 2001Authorization of Use of Military Force, which in my view was intended as a necessary narrow response to the 9/11 plotters—most of whom are either dead or in custody.

“And while we can expect that any president will seek to stretch his or her authorities, it is also incumbent on those of us here in Congress to make sure that we exercise our constitutional authorities, too, when it comes to the use of force.

“Secretary Mattis confirmed at our hearing a few weeks ago that there is no Congressional authority for military action against North Korea.  But I remain deeply concerned that President Trump will decide to preemptive or preventive military action against North Korea that is not justified under the circumstances and that Congress has not authorized.   He might even potentially seek to initiate a nuclear first-strike and, as borne out by our recent hearing on this issue, we would have to rely on the strength of character and bravery of those in the military responsible for carrying out that attack to question its legality.

“Mr. Chairman, what also became abundantly clear during the hearing with the Secretaries of Defense and State is that we also need to take stock of what we are already doing.  We have U.S. troops deployed almost everywhere in the world including in circumstances that would easily involve them, and the United States, in combat—as happened recently in Niger.   

“In addition to significant deployments in Iraq, Afghanistan, and Syria, and major deployments in South Korea, Japan, and Europe, U.S. forces are and have been engaged in counterterrorism operations in Yemen, Somalia, Ethiopia, Libya, and Chad, with extensive advice, train, and capacity-building efforts in many more. 

“A few weeks ago I read in a Politico story that the number of U.S. military forces in Somalia has grown this year to over 500 people, with the Pentagon quietly posting hundreds of additional special operations personnel to advise local forces around the country.  This Committee has the jurisdiction for ‘intervention abroad,’ yet no additional authority was sought even as the United States doubled its military forces in Somalia, potentially placing them in harm’s way.  This is a problem, Mr. Chairman.  

“We have all been seized by the tragic loss of U.S. soldiers in Niger, but let us not forget that we had already seen similar loss in Somalia.  In May of this year, a U.S. Navy Seal was killed while accompanying Somali soldiers in an ‘advise and assist’ mission. 

“The incident marked the first loss of U.S. military personnel in Somalia since eighteen U.S. soldiers died there in 1993.   The “Black Hawk Down” incident had serious consequences for  U.S. engagement and policy in Somalia, just as the recent incidents in Niger and Somalia will impact how we view train, equip, advise, assist, and accompany missions going forward. 

“And just last week the Pentagon acknowledged that there are 2000 U.S. forces in Syria.   This is nearly quadruple the level of 503 authorized by the previous Administration.  This is yet another warning to Congress and the American people that the Trump national security team is greatly expanding the deployment of U.S. military forces on the ground worldwide, with minimal congressional consultation, minimal buy-in from the American people, minimal limitations, and minimal transparency.

“So, as we contemplate the impact of these missions, we must engage in a serious ‘gut-check’ and ask ourselves:  What are the consequences of our military personnel being involved in places where lethal action seems almost inevitable?

“Mr. Chairman, I think we are seeing that over time, a kind of gray space is growing in which significant and consequential uses of force result from activities we all thought  did not constitute the use of offensive military force—such as deployments to train-and-equip other militaries.  This is either classic ‘mission-creep,’ or a significant miscalculation about the very nature of ‘advise and assist’ and ‘train and equip missions.’

“This Committee needs to take stock of where we are, on two fronts.  First—what, exactly, should we be doing now to ensure that the President does not engage in military actions that Congress has not authorized and that cannot be justified under the President’s Article 2 authorities?  And second, what exactly is our military doing around the world right now in the gulf between mere training and conventional war—a gulf that is growing and can be lethal? 

“Both of these issues have consequences for our long-term foreign policy goals and national security.

“Yesterday, we received the latest report due every six months pursuant to the War Powers Resolution. This is a four-page document updating us on U.S. armed forces equipped for combat. There are some new things compared to the June report, and I think we need to pay attention to this because the President tells us this is his notification.

“One hundred U.S. troops have been deployed to Lebanon to enhance the government’s counter-terrorism capabilities and support anti-ISIL operations. Since the last report United States forces have conducted a number of airstrikes against ISIS terrorists and their camps in Libya. And U.S. forces equipped for combat have deployed in the Philippines to support counter-terrorism operations.

“Folks, these are all new activities and this notification offers us too little information about expanding U.S. military operations around the world.

“I think this Committee needs to get a more granular understanding of these activities, the authorities under which they’re being done, and the troop distribution numbers in this country and other countries around the world.

“When we talk about our role, Congress’s role, we are inevitably talking about the War Powers Resolution, which was has been much criticized over the years.  We need to consider whether it is sufficient to deal with new circumstances as well as our current use of our military and lethal force, or if something more is needed. 

“I noted with interest the introduction, last month, of a bipartisan concurrent resolution in the House of Representatives pursuant to section 5(c) of the War Powers Resolution that directs the President to remove United States Armed Forces from hostilities in the Republic of Yemen, except those engaged in operations directed at Al Qaeda in the Arabian Peninsula or associated forces.  This is an interesting example of a potential way Congress could assert itself on these matters.

“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 international military activities.  Nor should Title 10 authorities become authorities of convenience for presidents to conduct lethal offensive military activities anywhere in the world. 

“I will end by saying that the United States has relied for too long on military force as the first response to the problems of terrorism, insurgency, and instability abroad.  What makes this issue even more urgent is this Administration’s growing reliance on military force, while at the same time pushing dramatic reductions in budgets and resources for diplomacy and development. 

“It’s really quite astonishing—and deeply troubling—and I think the American public needs to hear more about it.  Diplomacy, development, and support for human rights are the critical means through which we are safer in the world.

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