Senate Armed Services Committee - Statement for the Record lyrics

The Law of Armed Conflict, the Use of Military Force, and the 2001 Authorization for Use of Military Force May 16, 2013 Statement for the Record Submitted the Senate Committee on Armed Services By Rosa Brooks Professor of Law, Georgetown University Law Center Bernard L. Schwartz Senior Fellow, New America Foundation Chairman Levin, Ranking Member Inhofe and members and staff of the Committee on Armed Services, thank you for giving me the opportunity to testify today on the law of armed conflict, the use of military force, and the 2001 Authorization for Use of Military Force (AUMF). These are extraordinarily important issues, and I appreciate your commitment to taking a fresh look at them. I am a law professor at Georgetown University, where I teach courses on international law, constitutional law and national security issues. I am also a Bernard L. Schwartz Senior Fellow at the New America Foundation, and I write a weekly column for Foreign Policy magazine. From April 2009 to July 2011, during a public service leave of absence from Georgetown, I had the privilege of serving as Counselor to the Undersecretary of Defense for Policy at the Department of Defense. This testimony reflects my personal views only, however. Mr.Chairman, almost twelve years have gone by since the pa**age of the AUMF on September 14, 2001. The war in Afghanistan – the longest war in U.S. history-- has begun to wind down. But at the same time, a far more shadowy war has quietly accelerated. I am referring to what many have called the “drone war”: the increased use of military force by the United States outside of traditional, territorially bounded battlefields, carried out primarily, though not exclusively, by missile strikes from remotely piloted aerial vehicles. In recent years this shadowy war has spread ever further from "hot" battlefields, migrating from I will use the term “hot battlefields” interchangeably with “traditional battlefields,” “traditional territorially bounded battlefields” or “active theaters of combat.” The intent is not to a**ert that there is a clear legal distinction between these concepts (that, after all, is part of what is at issue today), but rather to distinguish descriptively between bounded geographical locations in which the existence of an armed conflict is legally uncontroversial and universally acknowledged --such as Afghanistan, or Iraq prior the the withdrawal of U.S. troops – and situations in which the existence of an armed conflict and/or the applicability of the law of armed conflict is precisely what is controversial. While drone strikes have garnered the most media attention, most of the an*lysis in this testimony applies equally to strikes carried out by manned aircraft and to strikes or raids that involve “boots on the ground,” such as those carried out by Special Operations Forces. These have variously been termed “drones,” “unmanned aerial vehicles,” and “remotely piloted vehicles.” I will generally use the term “drone” as shorthand. Afghanistan and Iraq to Yemen, Pakistan and Somalia, and perhaps to Mali and the Philippines as well. As you know, most information about U.S. drone strikes and other U.S. uses of military force outside “hot battlefields” remains cla**ified. As a result, virtually all of what is publicly known has had to be pieced together from leaked U.S. government documents, court filings, NGO and media investigations and occasional statements from government officials of foreign states. Everything in this testimony is therefore subject to the caveat that I can only comment on publicly available information, which is inevitably partial and (in some cases potentially misleading). Subject to that caveat, however, it appears that U.S. drones strikes, which began as a tool used in extremely limited circumstances to target specifically identified high-ranking al Qaeda officials, have become a tool relied on to go after an ever-lengthening list of bad actors, many of whom appear to have only tenuous links to al Qaeda and the 9/11 attacks, and many of whom arguably pose no imminent threat to the United States. Some of these suspected terrorists have been identified by name and specifically targeted, while others have reportedly been targeted solely on the basis of behavior patterns deemed suspect by U.S. officials. We also appear increasingly to be targeting militants who are lower and lower down the terrorist food chain, rather than high-ranking terrorist planners and operatives. Although drone strikes are thought to have k**ed well over 3,000 people since 2004, an*lysis by the New America Foundation and more recently by the McClatchy newspapers suggests that only a small fraction of the dead appear to have been so-called "high-value targets." The increasing use of weaponized drones to target individuals who only tenuous links to Al Qaeda and the 9/11 attacks raises critical legal and policy questions, particularly when such drone strikes occur outside of traditional battlefields. Most pertinently for today's hearing, such strikes raise significant domestic legal questions about whether current U.S. targeted k**ing policy is fully in conformity with Congress' 2001 Authorization for use of Military Force. In my view, current U.S. targeted k**ing policy has grown increasingly difficult to justify under the 2001 AUMF. As I will discuss, however, I believe it is neither necessary nor wise to expand the AUMF to give the president broad additional authorities to use force. Expanding the AUMF would effectively cede to the executive branch powers our Constitution entrusts to Congress. This would undermine the separation of powers scheme so vital to sustaining our constitutional democracy, and could easily lead to an irresponsible and unconstrained executive branch expansion of what has already been termed “the forever war.”1 Expanding the AUMF is also wholly unnecessary. Even without any AUMF, the president already has both the constitutional power and the right under international law to use military force to defend the United States from an imminent attack, regardless of whether the threat emanates from al Qaeda or from some new and unrelated terrorist organization. If Congress chooses to revise the AUMF, it would be far more appropriate to add geographic and temporal limitations-- or clarify Congress' a**umptions about the nature of the force authorized--than to expand it. The 2001 AUMF created a domestic legal framework that a**umes an indefinitely continuing state of armed conflict and gives the president advance authorization to use force more or less as he chooses, without regard to geography and without regard to the gravity or imminence of any threats posed to the United States. But as the threat posed by Al Qaeda dissipates and U.S. troops begin to withdraw from Afghanistan, it is appropriate for the U.S. to transition to a domestic legal framework in which there is a heightened threshold for the use of military force. Congressional authorization for the president to use military force should be reserved for situations in which there is a sustained and intense threat to the United States. If this president or any future president identifies a specific new threat of that nature, he can and should provide Congress with detailed information about the threat, and request that Congress authorize the use of military force in a manner tailored to address the specific threat posed by a specific state or organization. In the event that the president becomes aware of a threat so imminent and grave that it is not feasible for him to seek Congressional authorization prior to using military force, he can rely on his inherent constitutional powers to take appropriate action – by force if needed-- until the threat has been dissipated or until Congress can act. There is simply no need for Congress to preemptively authorize the president to use military force indefinitely against inchoate threats that have not yet emerged. Mr. Chairman, the United States is usually credited with the first modern codification of the rules of armed conflict. In 1863, President Abraham Lincoln signed General Order #100, “Instructions for the Government of Armies of the United States in the Field” – better known as the Lieber Code – outlining the core rules of armed conflict with which he expected the Union Army to comply. In Article 29, the Lieber Code makes a bold declaration: “Peace is [the] normal condition; war is the exception. The ultimate object of all modern war is a renewed state of peace.” This rings as true today as in 1863, when the U.S. faced a truly existential threat. And it invites us to ask a broad policy question in addition to a legal question: do we want to live in a world of perpetual, open-ended war? And if not, how do we begin to turn the page on the 9/11 era? What Congressional action will ensure that we retain the ability to protect ourselves when necessary, while at the same time ensuring that peace, rather than war, once again becomes our norm? Difficult as this question is, I am certain of one thing: an expanded AUMF will do nothing to prevent a “forever war.” On the contrary, it would likely lead only to thoughtless further expansion of our current shadowy drone war -- and this, I believe, would both undermine the rule of law and represent an act ofsupreme strategic folly. Moving well beyond the issue of the AUMF, U.S. drone strikes outside traditional battlefields also raise significant questions about U.S. compliance with international law principles, and even about what international legal framework is the appropriate framework for evaluating current U.S. targeted k**ing policy. Is it the international law of armed conflict? The international law concerning the right of states to use force in self-defense? International human rights law? Some combination of all these, or a different framework depending on the factual circumstances unique to each situation? Even more broadly, current U.S. policy raises grave questions about what it means to respect the rule of law when the law itself appears to be ambiguous or indeterminate. I recently testified at a hearing on “The Constitutional and Counterterrorism Implications of Targeted k**ing” held by the Senate Judiciary Committee's Subcommittee on the Constitution,Civil Rights and Human Rights. In my written statement submitted for the record for that April 23 hearing (see Appendix), I addressed a number of broader issues that I believe are also of interest to the Committee on Armed Services. Specifically, my April 23 testimony discussed what I view as some of the most common but unfounded criticisms of U.S. drone strikes, and identified some advantages of using drones as weapons delivery systems. I argued that drones present no new legal issues as such, but drone technologies lower the perceived costs of using lethal force across borders; as a result, they have facilitated a steady expansion of the use of force beyond traditional battlefields, which will likely have long-term strategic costsfor the United States. My April 23 testimony also addressed the significant rule of law challenges posed by current U.S. targeted k**ing policy. I discussed the international legal framework in which U.S. drone strikes occur, focusing specifically on the law of armed conflict and the international law of self-defense, and arguing that existing international law frameworks offer only ambiguous guidance with regard to the legality of U.S. targeted k**ings. This creates a grave rule of law problem: when the legal framework for a**essing U.S. targeted k**ings is uncertain and contested, the “legality” of such k**ings becomes effectively indeterminate. My April 23 testimony also addressed the question of what precedent U.S. targeted k**ing policy risks setting for other less scrupulous nations, and concluded by highlighting a number of possible ways for Congress to ensure that U.S. targeted k**ing policy does not continue to undermine vital rule of law norms. Rather than restate these arguments in this testimony prepared for the Committee on Armed Services, I will focus today solely on questions relating to the 2001 AUMF. However, I am including as an appendix to today's written testimony the statement I submitted on April 23 to the Judiciary Committee's Subcommittee on the Constitution, Civil Rights, and Human Rights, and I respectfully request that you consider it part of the record for today's hearing as well. The 2001 Authorization for use of Military Force Mr. Chairman, our Constitution gives Congress vital powers relating to the use of military force. To Congress is given the power to declare war and the power to raise, support and make rules regulating the armed forces and to make rules concerning “captures on land and water.” To Congressis also given the constitutional powerto call forth “the militia to execute the laws of the Union, suppress insurrections and repel invasions,” as well as the powerto “define and punish… offenses against the law of nations.” The Constitutional grant of these powers to Congress is essential to our scheme of separation of powers, and Congress has rightly been vigilant against executive usurpation of its constitutional prerogatives. The original AUMF was pa**ed on September 14, 2001. It gives the president Congressional blessing to: “[U]se 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 or persons.” Mr. Chairman and Senator Inhofe, as you and your colleagues on this committee undoubtedly recall, the Bush Administration initially proposed a broader, more open-ended AUMF, one that would authorize the use of force to “deter and pre-empt any future acts of terrorism or aggression against the United States.”13 But even in those frightening days right after the 9/11 attacks—even as bodies continued to be pulled from the rubble of the Pentagon and the Twin Towers–Congress refused to give the executive branch what would have amounted to an unnecessary and open-ended declaration of permanent war against an inchoate, undefined enemy. Congressional power once ceded to the executive branch tends never to be regained, and in 2001, Congress rightly wished to ensure that its authorization to use force would not end up eviscerating its vital role in the constitutional scheme. As a result, the language of the 2001 AUMF was drafted with great care. The 2001 AUMF is forward looking, insofar as its language is focused on prevention rather than retaliation; but it is also backward looking, insofar as force is explicitly authorized only against those with responsibility forthe 9/11 attacks. The 2001 AUMF does not authorize the U.S. of military force against every terrorist or anti-U.S. extremist the world contains. Instead, it focuses squarely on those “nations, organizations, or persons who specifically “planned, authorized, committed, or aided” the 9/11 attacks, as well as those who “harbored” such organizations or persons. The AUMF also does not authorize force for the open-ended purpose of preventing any and all future acts of terrorism. Instead, it authorizes force for a limited and defined purpose: “to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” This language, on its face, does not authorize the use of force for the purpose of preventing terrorist acts not directed against U.S. territory or U.S. persons, and it also does not authorize the use of force for the purpose of preventing terrorist attacks by nations, organizations or persons who with no culpability for 9/11. Furthermore, as the U.S. Supreme Court has several times emphasized, the AUMF must be construed as authorizing force only to the degree that it is also consistent with the international laws of war. This in turn means that any use of force under the AUMF must be consistent with longstanding law of war principles relating to necessity, proportionality, humanity and distinction. For much of the last dozen years, the AUMF provided adequate domestic legal authority both for the conflict in Afghanistan and for most U.S. drone strikes outside hot battlefields, since most of the individuals targeted in early U.S.strikes were reportedly senior Taliban or Al Qaeda operatives. Early U.S. drone strikes could of course still be criticized on other grounds—as strategically foolish, or as lacking in transparency and protections against abuse--but strictly from the perspective of domestic authorizing legislation, most of the early U.S. drones strikes appeared comfortably within the scope of the congressionally-granted authority to use force. I believe that this has changed in the last few years. The 9/11 attacks have receded into the past, the war in Iraq -- which had its own independent AUMF16--is over, the war in Afghanistan is winding down, and Al Qaeda no longer poses the urgent, intense and sustained threat it posed in September 2001. As former Secretary of Defense Leon Panetta said in November 2012, the “core” of Al Qaeda has been “decimated.” In his March 2013 testimony before the Senate Select Committee on Intelligence, Director of National intelligence James Clapper similarly observed that “core” Al Qaeda has been “degraded…to a point that the group is probably unable to carry out complex, large-scale attacks in the West.” This does not, of course, mean that the world no longer contains any terrorists or antiU.S. extremists. The world is unfortunately replete with people who resent the United States or oppose U.S. policies. Some subset of those people self-identify with the distorted brand of Islam favored by Al Qaeda and the Taliban, and a further subset may be willing to use violence to further their ends. Not all these people and organization pose serious or urgent threats to the United States, however. I am not privy to cla**ified military or intelligence evaluations of the capabilities of foreign terrorist organizations, but publicly available information suggests that while extremists and terrorists abound, few have both the intent and the ability to plan and implement actual attacks against the United States. Indeed, in his March 2013 testimony SSCI testimony, DNI James Clapper did not highlight any organization known to have both the current intent and the current capacity to carry out attacks against the United States. He noted, for instance, that Al Qaeda in the Arabian Peninsula (AQAP) continues to view attacks on U.S.soil as “part of [its] transnational strategy,” but he also suggested that AQAP has regional and internal priorities that its leaders may view as taking precedence over U.S. operations, given its limited number of “individuals who can manage, train, and deploy operatives for U.S. operations.” DNI Clapper suggested that other known international terrorist organizations are primarily local or regional in their interests and reach. Al Qaeda in Iraq's “goals inside Iraq will almost certainly take precedence over U.S. plotting,” while “Somalia-based al-Shabaab will remain focused on local and regional challenges.”Clapper offered similar a**essments of Syria's al Nusra Front, Al Qaeda in the Islamic Maghreb (AQIM), Nigeria's Boko Haram and Pakistan's Lashkar-e-Tayibba. Nevertheless, the publicly available evidence suggests that the United States continues to use military force outside hot battlefields not only against the remnants of “core” al Qaeda and the Taliban, but also against known or suspected members of other organizations--including Somalia's al Shabaab -- as well as against individuals identified by U.S. intelligence only as “militants,” “foreign fighters” and “unknown extremists.” Insofar as such groups and individuals were unconnected to the 9/11 attacks and are not planning or carrying out terrorist attacks against the United States, the use of force against these groups and individuals– at least outside of traditional battlefields – does not appear to be authorized by the 2001 AUMF. The Obama administration has countered this argument by a**erting that insofar as Congress intended the AUMF to be the functional equivalent of a declaration of war, the AUMF must be read to include the implied law of war-based authority to target groups that are “a**ociates” of Al Qaeda or the Taliban. However, it is not clear that Congress intended to authorize the use of force outside of traditional territorial battlefields against mere “a**ociates” of those responsible for the 9/11 attacks. It is also not clear how the executive branch defines “a**ociates” of al Qaeda, and the Obama Administration has not offered any public explanation of which groups it considers to be “a**ociates” of Al Qaeda or the Taliban. The international law of war unquestionably permits parties to a conflict to target “cobelligerents” of the enemy. On a traditional battlefield—such as within the territorial confines of Afghanistan— it would clearly be permissible for the U.S. to target individuals and groups that are fighting alongside the Taliban or Al Qaeda. It is less clear that this is the case outside “hot battlefields.” In this murkier context, it is far harder to determine what would constitute “cobelligerency” with Al Qaeda, and executive branch officials have provided no clear criteria, nor even a simple list of those it regards as “a**ociates” under a co-belligerency theory. As a result, there is a real danger that the Administration's a**ertion that the AUMF authorizes the use of force against AQ “a**ociates” even outside of traditional battlefields could become a backdoor way of expanding the AUMF far beyond Congress' intent. As noted earlier, in 2001 Congress refused to acquiesce in Bush Administration proposals to that the AUMF authorize force to “deter and pre-empt any future acts of terrorism or aggression,” and instead opted for language that was far more specific and limiting. If Congress now accepts Obama Administration claims that force can be used against a broad category of persons and organizations determined (based on unknown criteria) to be AQ “a**ociates,” this would effectively turn the AUMF into precisely the open-ended authorization to use force that Congress chose to avoid in 2001. Congress bears some responsibility for enabling the executive branch to a**ert such virtually unlimited authority to use force, however. In the 2006 and 2009 Military Commissions Acts, for instance, Congress gave military commissions jurisdiction over individuals who are “part of forces a**ociated with Al Qaeda or the Taliban,” along with “those who purposefully and materially support such forces in hostilities against U.S. Coalition partners.” This allowed the Bush Administration and later the Obama Administration to argue that if Congress considers it appropriate for U.S. military commissions to have jurisdiction over AQ and Taliban a**ociates—including over those “a**ociates” who were detained in geographical locations far from traditional battlefields-- Congress must believe the executive branch has the authority to detain such a**ociates found far from traditional battlefields, and the authority to detain must stem from the authority to use force. Indeed, by 2009 the Obama Administration was arguing in court that at least when it comes to detention, the AUMF implicitly authorizes the president “to detain persons who were part of, or substantially supported, Taliban or al-Qaeda forces or a**ociated forces that are engaged in hostilities against the United States or its coalition partners.” But note how far this has shifted from the original language of the AUMF: at least with regard to detention, the administration's focus is no longer merely on those who were directly complicit in the 9/11 attacks, but on a far broader category of individuals. This broadened understanding of executive detention authority was later given the congressional nod in the 2012 NDAA, which used virtually identical language. The key subsequent move in the executive branch's gradual expansion of the scope of the 2001 AUMF was the conflation of detention authority with the authority to target using lethal force. Logically, as the Supreme Court noted in 2004, a party to a conflict must have the power to lawfully detain all persons it has the lawful power to k**. The greater power must include the lesser: if it would be lawful to shoot an enemy combatant, it must be lawful to capture and hold him instead. Working backward from this principle, the Obama Administration appears to have reasoned that if it is lawful to detain an individual, it is equally lawful to use force against him. This does not follow: while the existence of the greater power implies the existence of the lesser power, Congressional authorization of the lesser power (detention) should not be construed – in the absence of express, unambiguous manifestations of Congressional intent--to include Congressional authorization of the greater power (the use of military force to target and k** “a**ociates” of Al Qaeda). However, Congress' failure to clarify its intent with regard to the AUMF has enabled the executive to read Congressional silence as approval. Notwithstanding executive branch efforts to shoehorn the vague category of “a**ociates” into the AUMF, few would dispute that as the “drone war” expands, it has become more and more difficult to view all current Obama administration uses of force as congruent with the limited authorities granted by Congress on September 14, 2011. In February 2012, then Pentagon General Counsel Jeh Johnson insisted that the 2001 AUMF remains the domestic legal “bedrock” of the military's drone strikes, and Administration representatives have repeatedly affirmed this view. But as a recent Hoover Institution white paper authored by former Obama official Bobby Chesney, former Bush officials Jack Goldsmith and Matt Waxman and the Brookings Institution's Ben Wittes concludes, “in a growing number of circumstances, drawing the requisite connection to the AUMF requires an increasingly complex daisy chain of a**ociations—a task that is likely to be very difficult… in some cases, and downright impossible in others.” John Bellinger, former State Department Legal Advisor under President Bush, is equally blunt: the AUMF is “getting a little long in the tooth.” Like it or not, the language of the AUMF is still clearly “tied to the use of force against the people who planned, committed, and or aided those involved in 9/11," says Bellinger. "The farther we get from [targeting] al-Qaeda, the harder it is to squeeze [those operations] into the AUMF." If the Administration's use of force outside traditional battlefields is increasingly hard to justify under the AUMF, what should Congress do in response? Congress could, of course, choose to do in 2013 what it refused to do in 2001, and broaden the existing AUMF to expressly permit the executive branch to use force to deter or preempt any future attacks or aggression towards the United States or U.S. interests. But such an expansion of the AUMF would give this and all future Administrations virtual carte blanche to wage perpetual war against an undefined and infinitely malleable list of enemies, without any time limits or geographical restrictions. In my view, this would amount to an unprecedented abdication of Congress's constitutional responsibilities. In effect, Congress would be delegating its war powers almost wholesale to the executive branch. And while such a broad authorization to use military force could in theory be narrowed or withdrawn by a subsequent Congress, history suggests that the expansion of executive power tends to be a one-way ratchet: power, once ceded, is rarely regained. Mr.Chairman, my guess is that few members of this committee would wish to contemplate such a broadened AUMF. What is more, it is worth emphasizing once again that while the Bush administration requested such open-ended authority to use force immediately after 9/11, Congress refused to provide it – even at a moment when the terrorist threat to the United States was manifestly more severe than it is now. Today, the Obama Administration has not requested or suggested that it sees any need for an expanded AUMF. It would be utterly unprecedented for Congress to give the executive branch a statutory authorization to use force when the president has not requested it. Similar flaws characterize proposals to revise the AUMF to permit the president to use force against any organizations he may, in the future, specifically identify as posing a threat to the United States, based on criteria established by Congress. This is the proposal made by the Hoover Institute White Paper co-authored by my colleague Jack Goldsmith. He and his coauthors argue that Congress could pa** a revised AUMF containing “general statutory criteria for presidential uses of force against new terrorist threats but requir[ing] the executive branch, through a robust administrative process, to identify particular groups that are covered by that authorization of force.” While it would surely be useful for Congress to provide greater clarity on what, in its view, constitutes a threat sufficient to justify the open-ended use of military force--amounting to a declaration of armed conflict--such a revised AUMF would still effectively delegate to the president constitutional powers properly entrusted to Congress. Once delegated, these powers would be difficult for Congress to meaningfully oversee or dial back—and, once again, it is notable that the president has not requested such a power. Mr. Chairman, Senator Inhofe, if what we're concerned about is protecting the nation, there is no need for an expanded AUMF. With or without the 2001 AUMF, no one disputes that the president has the constitutional authority (and the international law authority) to use military force if necessary to defend the United States from an imminent attack, regardless of whether the threat emanates from al Qaeda or from some as yet unimagined terrorist organization. If Congress chooses to revise the AUMF, it would be far more appropriate to limit it than to expand it. The 2001 AUMF established – at least as a matter of domestic U.S.statutory law--an indefinitely continuing state of armed conflict between the United States, on the one hand, and those responsible for the 9/11 attacks, on the other hand. This has enabled the executive branch to argue (both as a matter of U.S. law and international law) that it is the principles of the law of armed conflict (LOAC) that should govern the U.S. use of armed force for counterterrorism purposes. But if the law of armed conflict is the applicable legal framework through which to understand the AUMF and through which to evaluate U.S. drone strikes outside of traditional battlefields, there are very few constraints on the U.S. use of armed force, and no obvious means to end the conflict. Compared to other legal regimes, including both domestic law enforcement rules and the international law on self defense, the law of armed conflict is extremely permissive with regard to the use of armed force. The law of armed conflict permits the targeting both of enemy combatants and their co-belligerents. It also allows enemy combatants to be targeted by virtue of their status, rather than their activities: it is permissible to target enemy combatants while they are sleeping, for instance, even though they pose no “imminent' threat while asleep, and the lowest-ranking enemy soldier can be targeted just as lawfully as the enemy's senior-most military leaders. Indeed, uniformed cooks and clerks with no combat responsibilities can be targeted along with combat troops. It is this highly permissive law of armed conflict framework that has enabled the executive branch to a**ert that “a**ociates” of al Qaeda and the Taliban may be targeted beyond traditional battlefields, even though this expansion of the use of force beyond those responsible for 9/11 was not contemplated by Congressin the 2001 AUMF. Similarly, it is the law of armed conflict framework that has permitted the executive branch to a**ert the authority to target ever lower-level terrorists and suspected “militants,” ratherthan restricting drone strikes to those targeting the most dangerous “senior” operatives. It is also the law of armed conflict framework that permits the executive branch to a**ert that it may target even those individuals and organizations that pose no imminent threat to the United States, in the normal sense of the word “imminent.” But as the threat posed by Al Qaeda dissipates and U.S. troops withdraw from Afghanistan, it is appropriate for the U.S. to transition to a domestic (and international) legal framework in which there are tighter constraints on the use of military force. Congress can help this transition along by clarifying that the existing AUMF is not an open-ended mandate to wage a “forever war,” and requiring the president to satisfy more exacting legal standards before military force is authorized or used. In the event that the president becomes aware of a threat so imminent and grave he cannot wait for Congressional authorization prior to using military force, there is no dispute that he can rely on his inherent constitutional powers to take appropriate action until the threat has been eliminated or until Congress can act. However, by expressly granting the power to declare war and a**ociated powers to Congress, our Constitution presumes that the president will only in rare circumstances rely solely on his inherent executive powers to use military force. Historically, non-congressionally authorized uses of force by the president have generally been reserved for rare and unusual circumstances, and this is as it should be. Beyond these rare situations of extreme urgency, if the president believes that there is a sustained and intense threat to the United States, he can and should provide Congress with detailed information about the threat, and request that Congress authorize the use of military force to address the specific threat posed by a specific state or organization. Congress should authorize the use of military force in these circumstances only --there is no need for Congress to preemptively authorize the president to use military force indefinitely against unspecified threats that the president has not yet identified. And if Congress does authorize the use of military force at the president's request, the force authorized should be carefully tailored to the specific threat. Furthermore, Congress should be explicit about whether an AUMF is acknowledging or authorizing an ongoing armed conflict, on the one hand, or whether it is simply authorizing the limited use of force for self-defense, on the other hand. International law imposes criteria for the use of force in national self-defense that are far more stringent than the criteria for using force in the course of an armed conflict that is ongoing. Unlike the international law of armed conflict, the international law of self-defense permits states to use force only to respond to an armed attack or to prevent an imminent armed attack, and the use of force in self defense is subject to the principles of necessity and proportionality. Under self defense rules (unlike law of armed conflict rules) individuals who pose no imminent threat cannot be targeted, and inquiries into imminence, necessity and proportionality tend to restrict the use of force in self defense to strikes against those who— by virtue of their operational seniority or hostile activities- pose threats that are urgent and grave, rather than speculative, distant or minor. For this reason, I believe that if Congress wishes to refine or clarify the AUMF, it should consider limiting the AUMF's geographic scope, limiting its temporal duration, limiting the authorized use of force to that which would be considered permissible self defense under international law, or all three. Expressly limiting the AUMF's geographic scope to Afghanistan and/or other areas in which U.S. troops on the ground are actively engaged in combat, for instance, would clarify that the ongoing armed conflict (and the applicability of the law of armed conflict) is limited to these more traditional battlefield situations. As noted above, such a geographical limitation would by no means undermine the president's ability to use force to protect the United States from threats emanating from outside of the specified region. Such a geographical limitation would merely make it clear that any presidential desire to use force elsewhere would require him either to request an additional narrowly drawn congressional authorization to use force, or would require that any non-congressionally authorized use of force be justified -- constitutionally and internationally – on self defense grounds, by virtue of the gravity and imminence of a specific threat. Limiting the AUMF's temporal scope could be accomplished by adding a “sunset” provision to the AUMF. The current AUMF could be set to expire when U.S. troops cease combat operations in Afghanistan, for instance, or in 2015, whichever date comes first. Here again, such a limitation would not preclude the president from requesting an extension or a new authorization to use force, if clearly justified by specific circumstances, nor would it preclude the president from relying on his inherent constitutional powers if force becomes necessary to prevent an imminent attack. Finally, the AUMF could be revised to clarify Congress' view of the applicable legal framework. Congress could state explicitly that it authorizes the president to engage in an ongoing armed conflict within the borders of Afghanistan between the U.S. and Al Qaeda, the Taliban and their co-belligerents, but that it does not currently authorize the initiation or continuation of an armed conflict in any other place, and expects therefore that any U.S. military action elsewhere or against other actors shall be governed by principles of self-defense rather than by the law of armed conflict. There are many possible ways for Congress to signal its commitment to preventing the AUMF from being used to justify a “forever war.” Each of these approaches has both benefits and drawbacks, and each would require significant further discussion. But I believe that Congress' focus should be on ensuring that war remains an exceptional state of affairs, not the norm. At a minimum, this should preclude any Congressional expansion of existing AUMF authorities. Mr. Chairman, let me close with a plea for perspective. We live in a dangerous world: adversarial states such as North Korea and Iran remain bellicose; the changing role of near-peer powers such as China and Russia poses challenges to U.S. interests and global stability; the Middle East remains awash in violence, and technological advances could place lethal tools in the hands of irresponsible actors. We also face unprecedented challenges from our increased global interdependence: climate change, the interdependence of global financial systems and our ever-increasing reliance on the internet all create new vulnerabilities. Against the backdrop of these many dangers, old and new, the fear of terrorist attack should not be the primary driver of U.S. national security policy. Terrorism is a very real problem, and we cannot ignore it, any more than we should ignore violent organized crime or large-scale public health threats. Like everyone else, I worry about terrorists getting ahold of weapons of ma** destruction. At the same time, we should recognize that terrorism is neither the only threat nor the most serious threat the U.S. faces. With the sole exception of 2001, terrorist groups worldwide have never succeeded in k**ing more than a handful of Americans citizens in any given year. According to the State Department, seventeen American citizens were k**ed by terrorists in 2011, for instance. The terrorist d**h toll was fifteen in 2010 and nine in 2009. These d**hs are tragedies, and we should continue to strive to prevent such d**hs—but we should also keep the numbers in perspective. On average, about 55 Americans are k**ed by lightning strikes each year, and ordinary criminal homicide claims about 16,000 U.S. victims each year. No one, however, believes we need to give the executive branch extraordinary legal authorities to keep Americans from venturing out in electrical storms, or use armed drones to preemptively k** homicide suspects. What's more, we should keep in mind that military force is not the only tool in the U.S. arsenal against terrorism.33 Since 9/11, we've gotten far more effective at tracking terrorist activity, disrupting terrorist communications and financing, catching terrorists and convicting them in civilian courts, and a wide range of other counterterrorism measures. Much of the time, these non-lethal approaches to counterterrorism are as effective as targeted k**ings. And in fact, there's growing reason to fear that the expansion of U.S. drone strikes is strategically counterproductive. Former vice-chair of the Joint Chiefs of Staff General James Cartwright recently expressed concern that as a result of U.S. drone strikes, the U.S. may have “ceded some of our moral high ground.” Retired General Stanley McChrystal has expressed similar concerns: “The resentment created by American use of unmanned strikes… is much greater than the average American appreciates. They are hated on a visceral level, even by people who've never seen one or seen the effects of one,” and fuel “a perception of American arrogance.” Former Director of National Intelligence Dennis Blair agrees: the U.S. needs to “pull back on unilateral actions… except in extraordinary circumstances,” Blair told CBS news in January. U.S. drone strikes are “alienating the countries concerned [and] …threatening the prospects for long-term reform raised by the Arab Spring…. [U.S. drone strategy has us] walking out on a thinner and thinner ledge and if even we get to the far extent of it, we are not going to lower the fundamental threat to the U.S. any lower than we have it now.” Mr. Chairman, Senator Inhofe, I believe it is past time for a serious overhaul of U.S. counterterrorism strategy. This needs to include a rigorous cost-benefit an*lysis of U.S. drone strikes, one that takes into account issues both of domestic legality and international legitimacy, and evaluates the impact of targeted k**ings on regional stability, terrorist recruiting, extremist sentiment, and the future behavior or powerful states such as Russia and China. If we undertake such a rigorous cost-benefit an*lysis, I suspect we may come to see scaling back on kinetic counterterrorism activities less as an inconvenience than as a strategic necessity—and we may come to a new appreciation of counterterrorism measures that don't involve missiles raining from the sky. This doesn't mean we should never use military force against terrorists. In some circumstances, military force will be justifiable and useful. But it does mean we should rediscover a long-standing American tradition: reserving the use of exceptional legal authorities for rare and exceptional circumstances. Thank you for the opportunity to testify today.