SEC. 2. (a) It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgement of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.
(b) Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof.
(c) The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.
Why does it matter?
Did you know there's an effort to overturn the War Powers Resolution?
Did you know that those pushing this include James Baker, Lee Hamilton and Warren Christopher?
Are you scared yet?
Tuesday the Senate Foreign Relations Committee (full committee, not subcommittee) held a hearing on this and took testimony from Baker, Hamilton and Christopher. C.I. reported on it in the Tuesday's "Iraq snapshot." You can see the snapshot for details of the hearing but we want to emphasize the key exchange from C.I.'s snapshot. As usual, the strongest voice on the committee was Senator Russ Feingold:
Senator Russ Feingold: I'd like to use some of my time to make a statement and then ask a couple of questions. As we continue to grapple with the profound costs of rushing into a misguided war, it is essential that we review how Congress' War Powers have been weakened over the last few decades and how they can be restored. The war in Iraq has led to the deaths of thousands of Americans and the wounding of tens of thousands and will likely end up costing us a trillion dollars. What if we had had more open and honest debate before going to war? What if all the questions about the administration's assertions had been fully and, to the extent appropriate, been publicly aired? So clearly any reforms of the War Powers Resolution must incorporate these lessons and foster more deliberations and more open and honest public dialogue before any decision to go to war.
I appreciate that attention is being drawn to this critically important issue which, of course, goes to the core of our Constitutional structure, its' a conversation that we need to continue to have. But I am concerned that the proposals made by the Baker - Christopher commission cede too much authority to the executive branch in the decision to go to war. Under the Constitution, Congress has the power "to declare war." It is not ambiguous in any way. The 1973 War Powers Resolution is an imperfect solution; however, it does retain Congress' critical role in this decision making process. The commission's proposal on the other hand would require Congress to pass a resolution of disapproval by a veto proof margin if it were unhappy with the president's decision to send our troops into hostilities. That means in effect that the president would need only one-third of the members plus one additional member of either house to continue a war that was started unilaterally by the president. Now that cannot be what the framers intended when they gave the Congress the power to declare war. Since the War Powers Resolution was enacted, several presidents have introduced troops into battle without obtaining the prior approval of the Congress. Campaigns in Grenada and Panama are a few examples. None of these cases involved eminent threats to the United States that justified the use of military force without the prior approval of Congress. A simple solution to this problem would be for the president to honor the Constitution and seek the prior approval of Congress in such scenarios in the future. And while the consultation required by the War Powers Resolution is far from perfect, I think it is preferable to the commission's proposal to establish a consultation committee. If this bill had been in place before the war in Iraq, President Bush could have begun the war after consulting with a gang of 12 members of Congress thereby depriving most of the senators in this room of the ability to participate in those consultations as we did in the run up to the Iraq War. The decision to go to war is perhaps the most profound ever made by our government. Our Constitutional system rightly places this decision in the branch of government that most closely reflects the will of the people. History teaches that we must have the support of the American people if we are to successfully prosecute our military operations. The requirement of prior Congressional authorization helps to ensure that such public debate occurs and tempers the potential for rash judgment. Congress failed to live up to its responsibility with respect to the decision to go to war in Iraq. And we should be taking steps to ensure it does not make this mistake again. We should be restoring this Constitutional system not further undermining it. Mr Baker, part of the premise of the commission's finding, is that several presidents have refused to acknowledge the Constitutionality of the War Powers Resolution, I know that of course in practice, most do honor the Resolution. In your view, does the president's commander-in-chief authority give him the authority to ignore duly enacted statutes?
James Baker: Duly enacted statues? Not in -- not in my view. On the other hand, there have been -- you said most presidents, Senator Feingold, all presidents have refused to acknowledge the -- all presidents have questioned the Constitutionality of the War Powers Resolution.
Russ Feingold: Right.
James Baker: Both Democrat and Republican.
Russ Feingold: Right. I simply said several presidents.
James Baker: Right.
Russ Feingold: But most have honored the resolution in practice.
James Baker: Well that's really not quite accurate, sir. They send -- they file reports "in keeping with," the language is "in keeping with," but never has one president filed a report "pursuant to" the War Powers Resolution.
Russ Feingold: Well, nonetheless, I appreciate your answer to the basic question. It seems to me that much of the ambiguity you attribute to the War Powers Resolution would be resolved if future presidents simply abided by the Resolution -- that would help solve the ambiguity. Mr. Hamilton, before the Iraq War, every senator had the opportunity to at least review the intelligence assessments on Iraq -- particularly the October 2002 NIE. I concluded that there was insufficient evidence to justify the decision to go to war Under your bill, wouldn't the full Congress have even less access to the intelligence supporting the decision to go to war ? Wouldn't that intelligence be limited to the gang of members on the consultation committee?
Lee Hamilton: With the consultative committee, I think you expand the number of members that would be brought into the discussions involving the highest level of intelligence. In other words, you'd have more members involved under our proposal than you do now. Because you --
Russ Feingold: I was a relatively middle - junior member of the Foreign Relations Committee. I was not at that time a member of the Intelligence Committee. At some point I was afforded the opportunity to go down to a secure room and to hear directly from the CIA people whether they felt the same thing we were hearing publicly. And I got to tell you, their tone when they were trying to express these arguments the president was making was rather tepid and it gave me a feeling that something was wrong here. And I would apparently, under this scenario, not have been a part of that process. I'm not saying my role was critical but I did end up being one of the people who went to the floor immediately and said 'I'm not buying this al Qaeda connection, I'm not buying the notion that Saddam Hussein is likely or ready to attack the United States.' It appears that somehow somebody in my situation would not necessarily be able to be a part of that pre-military operation process. Mr. Hamilton?
Lee Hamilton: Well I think under the law today the president doesn't even have to consult with members of Congress before he takes you into war because the provisions in the War Powers Resolution are very vague with regard to consultation. We expand greatly the number of members who would be involved in that consultative process here.
Russ Feingold: It appeared though in this circumstance of Iraq that this was part of the consultative process. That our access to the people from the president's CIA was pursuant to a discussion that led to a vote of the full Senate --
Lee Hamilton: Well the ---
Russ Fiengold: how the process worked. All members -- well perhaps not all. But at least members of the Foreign Relations Committee were given the opportunity to participate in that kind of a set up --
Lee Hamilton: And the proposal that we're putting before you, members of Congress are required to vote on it.
John Kerry: Senator --
Lee Hamilton:You don't have that requirement under present law.
John Kerry: There is no requirement. under present law. What happened is we did it under the prerogatives of each of the committees because the committee chairs and ranking members understood that this was part of the responsibilities Nothing in here -- and we discussed this before you [Feingold] came here -- about this consultative component in fulfillment of the requirement that the president let us know what he's thinking about doing so that those Committees, that's why they're part of it. The Intelligence Committee, the Armed Services Committee, the Foreign Relations Committee, would then go about their normal business involving all of their members. I mean, but there's no statute that required that for you either.
Russ Feingold: I'd like to believe that, Mr Chairman, but it strikes me that this provides an opportunity, that the president doesn't currently have, to say, "Look. I went through this consultative process that's provided by this new statute so I have even less a need to go through a formal vote which, as we just talked about, most presidents have decided -- President [George H.W.] Bush on the first Gulf War, even though he may not have taken the view that he had to do it, he went ahead and did it. I think this creates a process that could end run the feeling on the part of a president that he needs to go through a process that would actually involve participation but I'm not saying that this doesn't literally require it --
James Baker: Senator --
Russ Feingold: Yes, Mr. Baker?
James Baker: We require a vote within 30 days so the president is going to be facing a vote of the Congress. If the vote is a resolution disapproval, that is going to very adverse impacts on the president's ability to
Russ Feingold: But in the case of Iraq of course [shrugs, throws up hands]
James Baker: Well that of course -- I mean
Russ Feingold: 30 days after wouldn't have been not too helpful.
James Baker: That's -- that's true. But the president -- both presidents went to the Congress to get approval and actually obtained approval. Back to . Back to the point you made about the c-- about the observance a statute duly enacted and whether a president can question it's Constitutionality. There's all -- there's always been the ability of presidents to question Constitutionality and in this area it has consistently been questioned by both Democratic and Republican presidents. Presidents have sent troops abroad, Mr. Feingold, 264 times -- during which period the Congress has declared war 5 times. So faced with the situation, we expressly -- I think before you arrived, we made it -- we had a dialogue here about the fact that we have expressly preserved the rights of Congress to make the argument that I think you are making and the right of the president to make the argument presidents have made since the War Powers Resolution was passed that the Constitution gives either (A) the Congress or (B) the president the authority. Expressly reserve those Constitutional arguments, put them to the side, they are not going to be solved in the absence of a Constitutional amendment or a Supreme Court opinion. So we don't prejudice either branch. What we're trying to do is find a workable solution here that will improve the relationship and the consultation that takes place between the president and Congress when the nation's going to war.
Russ Feingold: I respect the effort and I respect the intent and it may well work that way. My concern -- and I know my time's up, Mr. Chairman
John Kerry: No, take [more] time, no problem.
Russ Feingold: Is that I witnessed as a non-senator the excellent debate that was held on the floor of the United States Senate prior to the first Gulf War, I also was involved in the truncated and unfortunately weak debate prior to the Iraq War. But any process that could make a president feel that he somehow did not need to go through that process prior to such a major action would trouble me. So that's how I need to review this. Could this lead to that practical effect as opposed to the literal effort you have made to avoid such a consequence. These are my concerns.
For more coverage of Congressional hearings, see C.I.'s Friday "Iraq snapshot" and Thursday "Iraq snapshot" and Wednesday "Iraq snapshot" as well as Kat's "Senate Armed Services Committee hearing."