TIM KAINE WASHINGTUN OFFICE: vasomm tasters. "ltlnittd ,%tnatt COMMITTEE on WASHINGTON, DC 20510-400? FOREIGN RELATIONS WASHING I ON. 20510- 224 4024 COMMITTEE ON THE BUDGET COMMITTEE ON HEALTH. EDUCATION. LABOR. AND PENSIONS October 2, 2018 The Honorable James Mattis Secretary of Defense US. Department of Defense 100 Defense Pentagon Washington DC, 20301 Dear Secretary Mattis: Thank you for the detailed response to my May 23, 2013 letter that followed a Department of Defense brie?ng on the Niger attack and requested clari?cation on a series of issues regarding train, advise, assist, and accompany missions. I would like additional information on one point in the Department?s reply that most struck me given my longstanding focus on the appropriate division of war powers between the President and Congress. This is a concern only heightened by recent reports that the CIA is expanding its drone operations in Africa as the Department of Defense?s footprint recedes. In my letter, I asked for a description of the legal and policy differences between self-defense and collective self-defense. Speci?cally, whether collective self?defense could be invoked to support foreign partner forces engaged in hostilities against enemies that are not covered by a congressional authorization for use of military force (AUMF). The Department?s reply stated that ?collective self-defense in this context means extension of U.S. unit self-defense to foreign or irregular partner forces or persons.? Further that, ?The collective self-defense supplemental rule of engagement, when approved, permits US. forces to defend partner forces from attack or an imminent threat of attack with necessary and appropriate force, and typically the authority applies irrespective of the group or individual committing the hostile act, or demonstrating hostile intent. . .Self-defense is not a deliberate, offensive use of force. Rather it is a reaction to an attack or imminent threat of attack. As such, collective self- defense is not typically limited to particular groups or individuals committing the hostile act or demonstrating hostile intent, including not being limited to groups covered by the 2001 AUMF or other congressional authorizations for the use of farce. For example, US. forces responded in collective self-defense when Syrian pro?regime forces attacked a Syrian Democratic Forces base in Syria on February 7, 2018. In other tactical scenarios (as was the casein Niger on October 4, 2017), US. and partner forces on the ground are not obligated to identify whether the attackers are part of a particular group.? I am alarmed thatthe Department of DefensehelievesI-that, by merely designating a; group'as a. partner force, it can respond with military action to preterit that partner'foi'ce and its property if threatenedby any I-?gronp -.even one'Ith'at poses-no direct threat to the United States-,Iits Armed Forces or persons, n'Ior-is covered by .an IAUMF. This broad and troubling. interpretation of theIPresident?s Article II powers. completely constitutional requirement that two thirds of the Senate ratify a treaty, especially one that would chmniit fo1ces to. protect other nations hostilities The unintended consequences of. this policy could be grave, and. it raises the possibility of inadvertently becoming entangled in other countries con?icts, especially as S. forces are deployed to over. 1.?0 countries around the world. I view the use of Collective self- defense as .yet another unilateral expansion of the President?s Article: II authority 111 a now 17-year counterterro'rism campaign that seemingly knows no limits or end. I am also troubled that. it appears the. Department has- not appropriately notified Congress as. required by law: of ins'tanCes in which U. S. forces have aeted ?in Self? defense or in defensenf foreign partners? outside a declared theaterof aetive armed con?ict. I request a response to the following'questions anda brie?ng with seniorDefense-policyand legal experts on this issue as-Sojoit as can'h'e arranged: 1) Please describe the-process. for. designating a partner. force as. eligiblesfor the provision of collective lettel of approval and any-interagency review. 2} 'What criteria if? any,I must a. Ipartnei force meet to be eligible for the provision of collective self-defense? Are such partner forces vetted to aneure they observe international law, including the Geneva Cenventions and Laws of Arrned Con?ict fer example? 3) Please provide an accounting. of each partner force designated as eligible for the provision of collective self?defense by the President the Secretary of Defense, or any other delegated authority. I-s Congress notif ed once a partner force is so. designated? 4) The; Department 5 letter notes that, same.- of these miSsion-speci?c supplemental measures, including. collective self? defense of partner. forces require the. approval of the- Secretary of. Defense or the President. In which cases is the Secretary of Defense?s approval necessary? In which cases is the Presidents approval necessary? 5) What is the AdministratiOn a domestic and. international legal rationale for use of U. S. I-military farce for collective self?defense against combatants who. pose no direct threattc. the U.SI., its territorial possessions,- embasISiIes, or persons,.nor are covered by the 200] or Is there a blanket justi?cation or is it determined on a case- -by_ ?cas.e basis? .6.) Please describe the legal and operational. differences between a defense treaty, requiling' ratification by the. Senate, and collective self?defense of partner forces designated by the. President. Please describe the limiting principles on the use of collective self-defense froma. legal and policyiSt-andpoint . 8) Aside-from. the War'PGWer's Resolution andrhe 2001 and 2002 AUMFIS, .are there any other congressionalacts from which the Department-of Defense derives statutory authority for the naesof'rn'ilita'r'y'force? 9) The Department?s letter says that the standing rules of engagement (SROE) were last approved by the Secretary of Defense in 2005. When will be the SROE be updated, to re?ect the lessons learned from US. military operations since that time? I greatly appreciate your continued cooperation and candor with me on this and other issues and I look forward to the Department?s response and brie?ng. Sincerely, 7/1/49 Tim Kaine