WASHINGTON – U.S. Senator Chris Murphy (D-Conn.), top Democrat on the U.S. Senate Foreign Relations Subcommittee on Near East, South Asia, Central Asia, and Counterterrorism, on Wednesday pressed U.S. Under Secretary of State for Political Affairs David Hale and Acting Legal Adviser in the Office of Legal Advisers at the U.S. Department of State Marik String at a hearing on the President’s legal authority to go to war with Iran without specific authorization from Congress.
“Do you have any responsibility to come to Congress to launch [an] attack against that new entity or is it any attack against a partner of ours in the fight against extremism covered? [Is] our response to it covered under the 2001 AUMF? I think you’re nodding, so I think you get what I am asking,” Murphy pressed String.
Murphy also questioned Hale and String on President Trump’s Iran policy and what steps the administration is taking to bring Iran to the negotiation table to avoid a military conflict. During his time in the Senate, Murphy has continued to call on Congress to reclaim its war-making authority and debate a new AUMF. At a press conference last week in front of the U.S. Capitol, Murphy joined colleagues from the Senate and U.S. House of Representatives in urging against an unauthorized war with Iran.
Excerpts of Murphy’s exchanges with String and Hale are below:
On legal justification for a military strike against Iran:
MURPHY: “I wanted to just confirm that there are really two legal justifications for a military strike against a country like Iran. The first would be that we are responding to an attack or we are attempting to prevent an imminent attack that would be—as Mr. String is articulating—within the President's Article II authority.
“The second would be that the administration comes to the conclusion that there is an existing congressional authorization that would cover such action or the Congress passes a new authorization. But, I just want to make sure that I'm right—in general—that the two ways you could strike Iran is if you are responding to attack or defending against an imminent attack, or you have an authorization from Congress.”
STRING: “Thank you, Senator. So, under U.S. law—I think your question is under U.S. law rather than international law—under U.S. law, there would need to be [an] AUMF, an Authorization for the Use of [Military] Force by Congress. And as we've stated, there's been no determination, to date, that either AUMF would apply to Iran.
“And then, secondly you talked about the constitutional authority. In previous OLC opinions across administrations, the authority has been described to be a little more flexible than what you stated. So, there needs to be a precise national interest that's been articulated by a president in order to justify the use of force under the Constitution. Some of those types of national interests that have been identified in the past are: protection of U.S. persons or property, supportive allies, support of UN Security Council resolutions, promoting regional stability, deterrence of the use of WMD. So, it's a little more flexible than you describe Senator, but it's broadly in line.”
MURPHY: “I think the issue that you will find with many of us is that that list would seem to describe almost any reason to use broad Article II authority to engage in hostilities. And, so I think there will be a difference between our interpretation of that Article II authority and your Article II authority.”
On whether the Administration is willing to negotiate with Iran solely on the nuclear program:
MURPHY: “Is the United States prepared to sit down and talk with the Iranians if the subject is limited to their nuclear program or their potential nuclear weapons program? Or are we still insisting that they commit to opening up negotiations on a host of other activities before we would entertain any discussions?”
HALE: “The objective of our entire strategy here is to seek a negotiated outcome with Iran that's comprehensive. That covers the nuclear issue, the ballistic missiles advanced weaponry, the malign behavior in the region, human rights practices, treatment of U.S. citizens. We are open today to dialogue without preconditions. The President has signaled that consistently. We're ready to do that. But the goal would have to be a comprehensive agreement along the lines I said.”
MURPHY: “So the position still remains. No preconditions, you’re willing to sit down and talk today?”
HALE: “That’s correct.”
On the administration’s interpretation of their authority under the 2001 AUMF:
MURPHY: “I wanted to talk about this authority to protect partners. I may disagree with you that there’s are broad Article II ability to protect partners without congressional authority. But let's drill down on the existing 2001 authorization. And you have referenced that the 2001 authorization may give you broad authority to protect partners who are engaged in fights with us against the enemy. I would submit that you're right if they are engaged in fights against a named enemy under the 2001 authorization and that enemy has attacked them.
“But, what about the case in which a group not listed in the 2001 AUMF has attacked a partner who's a partner in the fight against ISIS or the fight against Al-Qaeda but has been attacked by an entity that is not listed in the 2001 AUMF? Do you have any responsibility to come to Congress to launch [an] attack against that new entity or is it any attack against a partner of ours in the fight against extremism covered? [Is] our response to it covered under the 2001 AUMF? I think you’re nodding, so I think you get what I am asking.”
STRING: “Yeah—thank you. I appreciate your question and understand the question. So, Senator, what you laid out is a very facts-specific hypothetical and I just like, I prefer not to get into answering very hypothetical questions. And I think what we've articulated in the testimony today is the first scenario that you mentioned in that when U.S. forces are deployed alongside partners and allies, we have a right to defend our forces and those partner allied forces as they together are pursuing missions pursuant to either the 2001 or 2002 AUMF. So that was the core proposition that we’re arguing—“
MURPHY: “You're prepared to argue affirmatively in that hypothetical, but you're not prepared to say you do not have the authority in the case that they are attacked by [an] entity not named by the administration as a terrorist group affiliated with Al-Qaeda?”
STRING: “Well, in some ways, so the answer that I provided is not necessarily hypothetical because I can cite a couple examples where we've actually exercised the authority to protect our own forces as they're engaging in certain operations pursuant to the 2001 or 2002 AUMF. And come under attack by another group.
“For example, in 2011 US forces were engaged in operation in Iraq, and came under threats from some Iranian backed militia groups and under the proposition that I laid out our forces were able to respond appropriately to that threat.”
MURHY: “Ok, I've gone over my time. Thank you, Mr. Chairman.”