(CNSNews.com) - There is no legal justification, either domestic or international, for much of what the U.S. military is doing in the Middle East, Sen. Tim Kaine (D-Va.) told Defense Secretary Ash Carter and Joint Chiefs Chairman Joseph Dunford on Thursday.
"I think we have made a complete hash of the -- and that's a diplomatic phrase -- of the doctrines of war, both domestic and international," Kaine told a hearing of the Senate Armed Services Committee.
"So at the end of this administration, with the complicity of this Congress, we have basically come up with a war doctrine that says 'wherever and whenever,' as long as the president feels it's a good idea -- without Congress even needing to do anything about it.
"The problem is, if that is the rule -- and I think that's become the rule -- that's a rule that I think will haunt us domestically under future presidents and Congresses that I could see.. And I also think it's a rule that can easily be seized by any other nations to basically justify all kinds of things that are horrible."
Kaine said on the domestic side, he's among a minority in Congress who believe that the 2001 Authorization for the Use of Military Force against the 9/11 perpetrators "does not provide a legal justification" for the fight against Islamic State terrorists in Iraq and Syria. He called the Obama administration's reliance on the 2001 AUMF "highly problematic."
Then he raised a second legal issue, saying "there has to be an international legal basis for war as well."
Kaine said if a country enters the sovereign space of another nation, as the U.S. has done in both Iraq and Syria, "there not only has to be a domestic legal justification, there has to be an international legal justification.
"U.S. action against ISIL in Iraq right now is at the invitation of the Iraqi government. So there's a clear international legal justification for all of our activities in Iraq, setting aside the domestic question.
"I'm sorry to say this, but there's also international legal justification for Russian military activity in Syria, because Russia has been invited in by the sovereign government of Syria. We may like it or we may not; we may think it's a bad idea, but...in terms of the international legal justification, they have been invited in by a sovereign government."
But it's a different story in Ukraine, where Russia is also carrying out military operations: "That's a violation of international law," Kaine said. "It's a clear violation of international law, because Ukraine has not invited them in...But what I struggle with is, how can we criticize the Russian incursion into Ukrainian sovereignty when we are carrying out now-escalating military operations in Syria without the permission -- and really even against the will -- of the of the sovereign of that nation?
"I am correct, am I not, that Syria has not invited us to conduct military operation within the nation of Syria?" Kaine asked Defense Secretary Ash Carter.
"You are correct," Carter responded. "But we do have lawyers."
Carter said the lawyers have told him that there is both a domestic and international legal basis for what the U.S. is doing to degrade and defeat ISIL. "But again, I'm not the expert on that and couldn't explain to you the ins and outs of it."
Carter said the U.S. is "trying to fight real terrorists" and is not trying to destabilize a country, as Russia is doing in Ukraine. "There's a big difference," he told Kaine.
Kaine agreed that there is a big difference in what the U.S. is doing in Syria and what Russia is doing in Ukraine: "But if I had Russian witnesses on the stand, they would talk about why they are doing what they are doing in the Ukraine."
Calling himself a "strong friend and supporter" of President Obama, Kaine noted that the U.S. is "engaged in an incursion into the sovereign nation of Syria without their permission, without their will. We're trying to criticize Russia for engaging into an incursion into another nation against their will. And we're asserting that the difference is that we're doing something good and they're doing something bad.
"I agree that we're doing something good. I agree that they're doing something bad. But that's not a limiting principle, because everybody's going to say what they're doing is good."
Kaine noted that since submitting its draft AUMF to Congress in March 2013, the Obama administration has had three years to work with Congress on getting something passed. But nothing has happened.
"So we're going to be basically in a position where we have turned a 60-word authorization (from 2001)...into an all-purpose, whenever-wherever domestic justification, and then we have taken common international principles of law and basically, we have decided that if our motives are okay, we can incur the sovereignty of another nation because we're doing the right thing.
"But then that takes away our ability to effectively criticize other nations that get into the sovereignty of other nations, as Russia is doing in Ukraine.
"So, Mr. Chair, this is not a subject that we're going to resolve today. But I just -- as we reach these new milestones of escalation, I'm just going to keep putting on the record the deep concern about the precedent that we're setting for this nation, but also the example that we're setting for other nations. Thank you."