Defense Department

No Need to Update 9/11 War Law, Trump Officials Tell Congress

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And broader questions about the legal scope and limits of presidential warmaking powers have taken on new urgency in the Trump era, including because of tensions with North Korea over its testing of nuclear weapons and longer-range missiles and the deaths of four American soldiers this month in Niger.

Questioned about North Korea on Monday, Mr. Tillerson and Mr. Mattis acknowledged that Congress had not granted any authority to Mr. Trump to start a war. Still, they said, he possessed constitutional authority as commander in chief to strike North Korea in the event of an imminent attack against the United States.

But Mr. Tillerson demurred when pressed to say whether North Korea’s mere possession of a nuclear weapon that could reach the United States would be sufficient to enable Mr. Trump to strike on his own. Mr. Tillerson said such questions could turn on the facts, including whether such a weapon was stored in a bunker or was sitting on a launching pad.

Several senators also pressed the witnesses about the recent deaths in Niger. Although Mr. Mattis said the purpose of the deployment there was to help build up national defenses because “the enemy is trying to move somewhere” as the Islamic State’s stronghold in Iraq and Syria collapsed, he said it was authorized under a separate law that allowed the military to carry out training and assistance missions.

Senator Christopher S. Murphy, Democrat of Connecticut, suggested that what the military billed as a mere training mission looked to some as if it was “actually putting American troops out in harm’s way,” helping local partners conduct dangerous missions. But Mr. Mattis said American troops had previously gone on many training patrols in that area without encountering hostile fire.

Mr. Mattis also noted that another Islamist militant group in the region, Boko Haram, had pledged allegiance to Al Qaeda — meaning Mr. Trump could deem them covered by the 2001 war authorization law. But that has not happened, Mr. Mattis said.

The insistence by Trump administration officials that any replacement war authorization law contained no new limits led to recurring discussion. Senator Todd Young, Republican of Indiana, noted that he had introduced a new A.U.M.F. bill that met that criteria, and under questioning by Senator Johnny Isakson, Republican of Georgia, Mr. Mattis emphasized his rationale.

“People run on hope,” Mr. Mattis said. “And if the enemy hopes we are going to quit on a certain day, and if they know we won’t deal with them if they step over a certain border, then the enemy’s going to do exactly that.”

But Senator Jeff Flake, Republican of Arizona, argued that Congress should revisit the war law from time to time. He has sponsored a bill with Senator Tim Kaine, Democrat of Virginia, that would replace the law with one that better reflects its current use, but that would expire after five years if Congress does not vote to reauthorize it.

“I would argue that the concern about giving our adversaries notice that we have to vote on something may be an issue,” Mr. Flake said, “but it’s overwhelmed in a big way by not having Congress buy in and not having us having skin in the game.”

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Wendy Pettit

Wendy Pettit is a writer for NYT and writes for other publications on her spare time. She lives in Chicago with her husband and her dog Zuko.

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