Source: United States Senator for Connecticut – Chris Murphy
WASHINGTON—U.S. Senator Chris Murphy (D-Conn.), Chairman of the U.S. Senate Foreign Relations Subcommittee on Near East, South Asia, Central Asia and Counterterrorism, on Tuesday questioned administration officials about the limits on the President’s powers to use force without congressional authorization. Murphy discussed whether additional authorization should be necessary to prevent attacks on partner forces and also asked about the threshold for when repeated strikes conducted under the president’s constitutional authority would need new congressional authorization with witnesses at the U.S. Senate Foreign Relations Committee hearing on the Biden administration’s perspectives on the current Authorizations for the Use of Military Force.
“…[P]assing future AUMFs will be difficult, but for good reason. Because the American public are very, very hesitant to commit U.S. forces abroad. And sometimes, despite the fact that think tanks in Washington think it’s a good idea for us to make war overseas, the American public don’t. And as our Founding Fathers believed, we have an obligation to listen to them. So I just think it’s important to lay that down for the record that the difficulty of passing authorizations of military force is not an excuse to grant wholesale war powers to the administration. There’s a reason for the difficulty,” said Murphy.
On the question of legal authority to protect partner forces if there is no threat to the United States, Murphy asked: “Do we have the ability to take military action to protect partner forces? Let’s say there’s no attack that’s imminent against the United States—can we take action to protect partner forces?”
U.S. Department of Defense General Counsel Caroline Krass responded: “[I]f our U.S. Armed Forces are operating under existing legal— domestic legal authority—and there is an imminent threat of an attack against our partner forces who are working alongside us, for example, to defeat a counter terror, a terrorist group, we may use force.”
Murphy went on to clarify: “Even if there’s no threat of force being used against United States? If there’s a threat of force against a partner force in a country subject to a battle against an associated force of al-Qaeda under the 2001 AUMF, we have the ability to use military force against them without prior authorization from the United States Congress?”
Krass confirmed: “Yes, because the whole conflict would have already been authorized by Congress.”
Murphy also asked the witnesses about the threshold for when repeated strikes against Iran or Iranian-backed militias would need a new authorization for the use of military force, specifically citing the February 2021 and June 2021 attacks against Iranian-backed militias: “We have seen an increased frequency of attacks against Iranian-aligned militias. How do you enter into this question of when the frequency of Article II attacks requires you then to come to Congress for new permission?”
Last month, Murphy along with U.S. Senator Mike Lee (R-Utah), and U.S. Senator Bernie Sanders (I-Vt.), introduced sweeping, bipartisan legislation to reclaim Congress’s critical role in national security matters. The National Security Powers Act specifically safeguards congressional prerogatives in the use of military force, emergency powers and arms exports. In each of these cases, the president is required to consult congressional leaders and obtain congressional authorization before exercising the powers in question. Any congressional authorization will have to meet specific requirements, including an automatic sunset. Under the National Security Powers Act, any activities lacking such authorization will face an automatic funding cutoff after a specified number of days. You can read more about the bill here.
Murphy authored an op-ed in War on the Rocks making the case that U.S. national security is stronger when Congress is involved and outlining his new legislation that would get Congress back to the table. The National Security Powers Act is supported by the Brennan Center for Justice at NYU Law School, the Center for American Progress, the Center for Civilians in Conflict (CIVIC), the Center for International Policy, Common Defense, Concerned Veterans for America, Demand Progress, Foreign Policy for America, Freedom Works, Friends Committee on National Legislation, Human Rights First, International Crisis Group, Indivisible, Niskanen Center, Open Society Policy Center, Oxfam America, Project on Government Oversight, Protect Democracy, Public Citizen, Quincy Institute for Responsible Statecraft, R Street Institute, VoteVets, Win Without War, and the American Civil Liberties Union (ACLU).
A full transcript of Murphy’s exchange with the Biden administration’s witnesses can be found below:
MURPHY: “Thank you very much, Mr. Chairman. Mr. Chairman, I’ve had only a few of what I call ‘supermarket moments’ in my time in public service. These are moments when the people I represent are so exercised by a conversation we’re having here in Washington that they don’t sort of wait to walk across the supermarkets to register their opinion with you—they yell it at you. And there’s been a handful of them; the health care debate in 2009 was one of them. But another was Labor Day weekend 2013, when President Obama had requested the authorization to use military force in Syria, and we were about to have that debate.
“My constituents back home had grave concerns about a commitment of U.S. forces into Syria, and so did all of yours. Because while this committee did do good work in moving that resolution forward—I didn’t support it—but it did receive a bipartisan vote before this committee, it was not likely going to pass the United States Senate or the House of Representatives. It likely did not have enough support to move through the entire body. Why? Because the American public, often, is much more skeptical about the commitment of U.S. forces abroad then this body is or that the foreign policy consensus is in Washington, D.C. Why? Because they have seen time and time again, mistakes being made.
“And so I think Senator Romney is right, that passing future AUMFs will be difficult, but for good reason. Because the American public are very, very hesitant to commit U.S. forces abroad. And sometimes, despite the fact that think tanks in Washington think it’s a good idea for us to make war overseas, the American public don’t. And as our Founding Fathers believed, we have an obligation to listen to them. So I just think it’s important to lay that down for the record that the difficulty of passing authorizations of military force is not an excuse to grant wholesale war powers to the administration. There’s a reason for the difficulty.
“My set of questions is in pursuit of trying to find limiting principles around the powers that have been granted to the executive branch, particularly in the post-2001 era. I agree with Senator Young—repealing 2002 [AUMF], 1991 [AUMF] likely has no impact on our ability to protect forces in the region. I think we should go forward quickly in this matter. I also think it makes it stronger in the region. When we more accurately define our enemies, when we train our objectives with a finer point in the Middle East—a very complicated place—we’re stronger. So I don’t buy the argument that this makes us weaker.
“So let me ask about a couple limiting principles. Secretary Sherman, does the administration recognize the concept of imminent threat as a limiting principle? In other words, if a strike is simply retaliatory against an enemy who has struck the United States or is designed to prevent future attacks, is that allowed without an AUMF? Or does the administration always have to prove that they are trying to prevent an imminent future attack against the United States?”
DEPUTY SECRETARY OF STATE WENDY SHERMAN: “Senator, on that question, I’m going to defer to my legal advisor.”
STATE DEPARTMENT ACTING LEGAL ADVISOR RICHARD VISEK: “Senator and then I will, I will start and I suspect it would be helpful if I turned over to my colleague, Mrs. Krass, who understands the [Department of Defense (DoD)] operational guidance better than I. But we always have, when we’re attacked, we have a right to defend ourselves. And I think the idea of imminence is really more in what we would sort of call the use from a just a legal standpoint as opposed to a policy standpoint. The jus a bellum idea that you can certainly defend yourself against [an] imminent attack. And there are various—”
MURPHY: “But you don’t perceive it necessary to prove that there is an imminent attack?”
VISEK: “Taking the two strikes that we did this this year, the February and the June strikes, I don’t think there was a requirement that there be a concern—“
MURPHY: “Of any proof of an imminent attack. Let me ask you, let me ask you this, just because time is running out. Do we have the ability to take military action to protect partner forces? Let’s say there’s no attack that’s imminent against the United States—can we take action to protect partner forces?”
VISEK: “This one I will certainly defer to my colleague, Mrs. Krass.”
DEPARTMENT OF DEFENSE GENERAL COUNSEL CAROLINE KRASS: “Senator, if our U.S. Armed Forces are operating under existing legal— domestic legal authority—and there is an imminent threat of an attack against our partner forces who are working alongside us, for example, to defeat a counter terror, a terrorist group, we may use force.”
MURPHY: “Even if there’s no threat of force being used against United States? If there’s a threat of force against a partner force in a country subject to a battle against an associated force of al-Qaeda under the 2001 AUMF, we have the ability to use military force against them without prior authorization from the United States Congress?”
KRASS: “Yes, because the whole conflict would have already been authorized by Congress.”
MURPHY: “And lastly, I think you can see how it’s a little difficult for the American public to figure out where these authorizations end when it is construed so broadly. And lastly, I’ll address this to whoever wants to take it: How do you take a look at the question of when the frequency of Article II strikes requires you to come to Congress for a new authorization?
“We have seen an increased frequency of attacks against Iranian aligned militias. How do you enter into this question of when the frequency of Article II attacks requires you then to come to Congress for new permission?
“You can see a circumstance in which, if you’re striking twice a year, maybe you can consider that Article II authority. But if you’re striking once a week, that doesn’t sound like Article II authority. What’s the limiting principle there?”
VISEK: “Well Senator, the voice in my head is always going you’re, I’m now having to engage in hypotheticals. And I guess that’s my one, one point where facts and circumstances are always important. And so we would obviously have to assess it in light of that, but to try to attach it to concrete sort of situation that we’re dealing with now.
“The attack from the Iran-backed militias, for example, we don’t see those to be—we don’t see any sort of continuing ongoing attacks by a particular entity, they tend to be more in the discrete, individual, episodic, if you will. And so there, we think the Article II powers is more than adequate. Now, at the beginning of this hearing, Senator Menendez referenced the [Office of Legal Counsel] opinions. And I realized that there are differing views on those but as executive branch lawyers, we do take guidance from the Office of Legal Counsel, in that regard.
“And there are there are limiting principles in terms of at what point do we think the—and I believe Senator Menendez referred to this—the scope, duration and nature—the reasonably anticipated scope, duration, and nature—would rise to basically a level of war that would require us to come to the to the Congress, and that would be focusing on not only our operation, but the likely responses that would follow from that.
“And then in terms of limiting principles because I’m here on behalf of the Department of State, I would also say there’s plainly limiting principles in international law, which we respect, and that a strike would need to be necessary and it would need to be proportionate. And then obviously, once we’re engaged in strikes, we obviously follow the rules of international humanitarian law which focus on principles of distinction, necessity, humanity, proportionality so as to minimize fake harm to civilians, and to make sure we’re acting proportionately.”
MURPHY: “I’m well over my time, this is a fascinating conversation. But I appreciate the indulgence, Mr. Chairman.”
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