[House Hearing, 111 Congress]
[From the U.S. Government Printing Office]
THE ROLE FOR CONGRESS AND THE PRESIDENT
IN WAR: THE RECOMMENDATIONS OF THE
NATIONAL WAR POWERS COMMISSION
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON FOREIGN AFFAIRS
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
MARCH 5, 2009
__________
Serial No. 111-7
__________
Printed for the use of the Committee on Foreign Affairs
Available via the World Wide Web: http://www.foreignaffairs.house.gov/
______
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COMMITTEE ON FOREIGN AFFAIRS
HOWARD L. BERMAN, California, Chairman
GARY L. ACKERMAN, New York ILEANA ROS-LEHTINEN, Florida
ENI F.H. FALEOMAVAEGA, American CHRISTOPHER H. SMITH, New Jersey
Samoa DAN BURTON, Indiana
DONALD M. PAYNE, New Jersey ELTON GALLEGLY, California
BRAD SHERMAN, California DANA ROHRABACHER, California
ROBERT WEXLER, Florida DONALD A. MANZULLO, Illinois
ELIOT L. ENGEL, New York EDWARD R. ROYCE, California
BILL DELAHUNT, Massachusetts RON PAUL, Texas
GREGORY W. MEEKS, New York JEFF FLAKE, Arizona
DIANE E. WATSON, MIKE PENCE, Indiana
California JOE WILSON, South Carolina
ADAM SMITH, JOHN BOOZMAN, Arkansas
Washington deg.Until J. GRESHAM BARRETT, South Carolina
2/9/09 deg. CONNIE MACK, Florida
RUSS CARNAHAN, Missouri JEFF FORTENBERRY, Nebraska
ALBIO SIRES, New Jersey MICHAEL T. McCAUL, Texas
GERALD E. CONNOLLY, Virginia TED POE, Texas
MICHAEL E. McMAHON, New York BOB INGLIS, South Carolina
JOHN S. TANNER, Tennessee GUS BILIRAKIS, Florida
GENE GREEN, Texas
SHEILA JACKSON LEE, Texas
BARBARA LEE, California
SHELLEY BERKLEY, Nevada
JOSEPH CROWLEY, New York
MIKE ROSS, Arkansas
BRAD MILLER, North Carolina
DAVID SCOTT, Georgia
JIM COSTA, California
KEITH ELLISON, Minnesota
GABRIELLE GIFFORDS, Arizona
RON KLEIN, Florida
VACANTFrom 2/10/09 through
3/12/09 deg.
Richard J. Kessler, Staff Director
Yleem Poblete, Republican Staff Director
Daniel Silverberg, Counsel
Genell Brown, Senior Staff Associate/Hearing Coordinator
C O N T E N T S
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Page
WITNESSES
The Honorable James A. Baker, III, Senior Partner, Baker Botts
LLP (former Secretary of State)................................ 18
The Honorable Warren M. Christopher, Senior Partner, O'Melveny &
Myers LLP (former Secretary of State).......................... 22
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
National War Powers Commission Report--Executive Summary......... 10
The Proposed Statute--War Powers Consultation Act of 2009........ 14
The Honorable James A. Baker, III: Prepared statement............ 20
The Honorable Warren M. Christopher: Prepared statement.......... 24
APPENDIX
Hearing notice................................................... 44
Hearing minutes.................................................. 45
The Honorable Howard L. Berman, a Representative in Congress from
the State of California, and Chairman, Committee on Foreign
Affairs: Prepared statement.................................... 47
The Honorable Donald A. Manzullo, a Representative in Congress
from the State of Illinois: Prepared statement................. 49
The Honorable Gerald E. Connolly, a Representative in Congress
from the State of Virginia: Prepared statement................. 50
The Honorable Gene Green, a Representative in Congress from the
State of Texas: Prepared statement............................. 51
Questions for the record submitted by the Honorable Barbara Lee,
a Representative in Congress from the State of California, and
responses from the Honorable James A. Baker, III, and the
Honorable Warren M. Christopher................................ 52
THE ROLE FOR CONGRESS AND THE PRESIDENT IN WAR: THE RECOMMENDATIONS OF
THE NATIONAL WAR POWERS COMMISSION
----------
THURSDAY, MARCH 5, 2009
House of Representatives,
Committee on Foreign Affairs,
Washington, DC.
The committee met, pursuant to notice, at 10:04 a.m., in
room 2172, Rayburn House Office Building, Hon. Howard L. Berman
(chairman of the committee) presiding.
Chairman Berman. The committee will come to order. I yield
myself 7 minutes.
Today, deg. we turn our attention to one of the
most sacred trusts of any government, with the decision to send
its sons and daughters into harm's way. For decades,
constitutional experts and policy analysts have struggled to
delineate the responsibilities of Congress and the President in
authorizing the use of U.S. Armed Forces.
The ``war powers'' question is far from academic. American
men and women in uniform are engaged in hostilities on the
other side of the world. As eloquently stated by our two
esteemed witnesses, whether or not to go to war is the most
agonizing decision a country can make. The War Powers
Resolution of 1973, which we will be reviewing today, was born
of congressional frustration over the executive branch's
commitment of forces in Southeast Asia in the 1960s without
appropriate involvement of Congress, a co-equal branch of
government.
The law states, in essence, that the President must
withdraw U.S. forces from any conflict within 60 days of their
deployment unless Congress has specifically authorized the
continuation of their involvement. Unfortunately, this has been
a near-constant exercise in futility. Presidents from both
parties have declared that the War Powers Resolution is
inconsistent with the Constitution. No President in the past 35
years has filed a report pursuant to the War Powers Resolution.
And while the War Powers Resolution specifically directs
the President to consult ``in every possible instance'' prior
to introducing U.S. troops into harm's way, there have been
numerous instances of U.S. military action where there has been
no prior meaningful consultation with Congress--sometimes with
calls coming while things were in the air.
Examples include the invasions of Grenada in 1983 and
Panama in 1989. Then the President believed he could deploy
forces for short periods of time without adhering to the
resolution's consultative requirements. Similar cases occurred
in Somalia in 1992 and Haiti in 1994.
To be fair, Presidents have sought at various times the
collective judgment and backing of Congress prior to
significant armed conflict, in part in response to
congressional efforts to return to a more faithful adherence to
the Constitution's division of war powers.
Major combat operations, including the Gulf War of 1991,
the conflict in Afghanistan in 2001 and the 2003 Iraq War, were
all the subject of congressional debate and a vote by both the
House and the Senate, resulting in an authorization to use U.S.
Armed Forces.
The conflict in Kosovo was also subject to congressional
votes, albeit conflicting ones, and usually negative ones, on
the opposite sides of the same issue in fact. And the House
voted to limit United States military involvement in Central
America during the Reagan administration, which led to a
scaling back of American intervention in the region.
But to the extent Presidents have negotiated around the War
Powers Resolution, or not consulted Congress at all, the
resolution has not fulfilled its original purpose. It
essentially remains a well-intentioned yet toothless mechanism
to force consultations and, if necessary, a withdrawal of U.S.
Armed Forces should Congress not approve of their deployment
within 60 days. Indeed, Presidents, scholars and even some
members of this body continue to dismiss the resolution as
unconstitutional and unworkable.
I became particularly seized with the war powers question
during Secretary Baker's term as Secretary of the Treasury,
when President Reagan authorized U.S. warships to defend
reflagged Kuwaiti tankers in the Gulf during the Iran-Iraq War.
We could never quite get the administration to admit that these
warships had been deployed into hostilities and were subject to
the War Powers Resolution.
In close cooperation with my respected former colleagues,
Dante Fascell and Lee Hamilton, several of us undertook an
effort to rewrite the War Powers Resolution and invite the
President to seek prior authorization for military action.
The thrust of that legislation from 1988--H.J. Res. 675--
was to require the President to consult with a permanent
consultative group consisting of congressional leadership and
some Members chosen by the Democratic Caucus and the Republican
Conference of the House and the deg.Senate. It
effectively preempted claims by the administration that
consultation was unnecessary or improvident.
I welcome a rekindling of this debate through the
commendable work of the National War Powers Commission, chaired
by Secretaries Baker and Christopher, which believes Congress
should repeal the War Powers Resolution. In its place, the
Commission has recommended a consultative mechanism and a
procedure for Congress to take the measure of support for the
President's military actions. If such deployment does not
command military support, deg.majority support, then
any Member of Congress may propose a joint resolution of
disapproval that would require an end to the military
involvement, with such resolution being subject to expedited
procedures.
A resolution, of course, would be subject to a veto, which
would have to be overcome by a two-thirds majority. I am not
sure if the proposed legislation would sufficiently balance the
authorities between the executive and legislative branches.
However, I am certain that the proposed draft is a real and
substantial improvement over the existing law. I am gratified
the Commission has made this contribution to the war powers
debate, and I can think of no better witnesses to address the
critical issue of how to make the decision to go war.
I am now happy to yield to the distinguished ranking member
for her opening statement.
Ms. Ros-Lehtinen. Thank you so much, Mr. Chairman, and I
also join you in welcoming our most distinguished witnesses
this morning, and I am grateful for the time invested by our
great Secretaries of State, Mr. Baker, Mr. Christopher, as well
as our former chairman and dear friend of this committee, Lee
Hamilton, as well as all of their colleagues on the Commission.
Their insight and their expertise are highly welcome.
The life-and-death issue, as you pointed out, Mr. Chairman,
of committing our Armed Forces to combat is one of the most
solemn responsibilities of our Federal Government, a
responsibility that has only become even more complex since the
deplorable attacks on our Nation on 9/11.
The Constitution vests the Congress with the power to
declare war and to raise and support armies while making the
President the Commander-in-Chief of the Armed Forces. The
proper exercise and the interrelation of these war-making
powers has been a source of historical ambiguity and tension,
which some see as healthy and others as dangerous.
The War Powers Resolution and attempted congressional
corrective that was passed over President Nixon's veto in 1973
has not produced a settled consensus. In this context, it would
be useful to hear from our witnesses about the details of their
proposed replacement for the War Powers Resolution, which they
have titled the ``War Powers Consultation Act.''
I am interested in learning why they believe it represents
an improvement over the current War Powers Resolution and how
it would operate in current circumstances. Congress always
possesses the constitutional authority to cut off funding for
U.S. participation in any particular conflict, but where no
such consensus exists, our servicemen and -women deserve our
full support, including political support, for their mission
and their sacrifices.
The Commission has attempted to address some of these
issues by offering a proposal to serve as a starting point for
possible legislative action. I ask our witnesses to provide us
with additional insight on how they intend their proposal to
operate on several issues.
First, I would be interested in understanding their
decision to shift the statuary consequences of congressional
inaction. The War Powers Resolution requires congressional
approval for the President to continue U.S. troop commitments
beyond 60 days, although it has not been enforced in practice.
The proposed War Powers Consultation Act would allow such
deployment to continue in the absence of congressional
disapproval.
Second, their definition of ``significant armed conflict''
specifically excludes a number of circumstances, such as
actions to repel or prevent imminent attacks, limited acts of
reprisals against terrorists, acts to prevent criminal activity
abroad and covert operations, among others.
Given the generality of these exceptions and the ingenuity
of the executive branch, I would like to understand better how
this new definition would improve rather than intensify the
conflicting interpretations on authorities that have arisen
under the War Powers Resolution.
Third, the Commission's proposal would create a standing
committee, the Joint Congressional Consultation Committee
(JCCC), as the focus for enhanced congressional executive
consultation. Aside from the question of whether Congress can
constitutionally require the President to consult before
exercising his authorities, how do you see this joint
congressional committee fundamentally improving preconflict
resolution and consultation?
Again, I want to thank Secretaries Baker and Christopher
and former Chairman Hamilton for their work on this report, the
``National War Powers Commission Report,'' which represents a
fitting continuation of their distinguished careers in public
service. So thank you, gentlemen, for being with us here today.
Thank you, Mr. Chairman.
Chairman Berman. Thank you very much, Ms. Ros-Lehtinen, and
we have excellent witnesses. Does any member want to overcome
the natural barrier to seeking 1 minute for initial comments?
The gentleman from New Jersey, Mr. Payne, is recognized for 1
minute.
Mr. Payne. Thank you very much. I just would like to also
welcome our two great Secretaries, former Secretaries of State.
I had the pleasure to serve under both of them and, of course,
our chairman, Lee Hamilton.
I think that it is certainly fitting that we try to come up
with a resolution to this question. Ever since the Bay of
Tonkin Resolution, and December 7, I guess, or December 8,
1941, was the last time we really declared war I suppose, but
since then, we have been into Grenada, Panama. We have been
into Haiti, and we have been to Liberia. We were in Somalia. We
have been to Bosnia and Sudan. We have gone, of course, to
Iraq, some while ago, to Iran, North Korea.
So I do think that, at some point in time, we need to have
a clarification of the duties, and I commend the committee for
the War Powers Commission, such distinguished persons. I hope
that we can come to grips with the resolution, and, with that,
my time has expired.
Chairman Berman. The time of the gentleman has expired. On
behalf of the institution, I would say you served with the two
Secretaries, not under the two Secretaries.
The gentleman from New Jersey, Mr. Smith, is recognized for
1 minute.
Mr. Smith of New Jersey. Mr. Chairman, thank you. Let me
just say very briefly that our three witnesses are
extraordinary, wise and experienced men, all of whom have
profoundly and positively shaped foreign policy during some of
this Nation's most challenging years.
The War Powers Act clearly has failed to provide any
meaningful framework for the President or for the Congress to
deal with the profound issues of war and taking a country to
war. I think this Commission's report, and I have read it cover
to cover, like, I am sure, every member of this committee has,
provides a very, very meaningful blueprint for action, and I
think having Mr. Hamilton, our former chairman, who I served
with as well, as a very eminent member of this Commission bodes
well.
Not only has the 9-11 Commission, which he and Tom Kean so
ably chaired, made a difference; most of the recommendations,
almost every one of the recommendations they made, either
through administrative action or by congressional action, has
been put into policy and into law.
I think this is a starting date for Congress, and hopefully
we will come out of the blocks and take very seriously your
recommendations, and I thank you.
Chairman Berman. The time of the gentleman has expired.
We served under Chairman Hamilton, and we served with
Secretaries Baker and Christopher.
The gentleman from Massachusetts is recognized for 1
minute.
Mr. Delahunt. Thank you, Mr. Chairman. As you are aware, in
chairing the Subcommittee on Oversight, I conducted a number of
hearings on these same issues, and I applaud you for taking it
to the full committee. I want to express my gratitude to all
three gentlemen in taking on what is clearly an issue that
deserves serious consideration and is not susceptible to easy
resolution.
I am particularly pleased that you have taken the concept
of consultation and elevated it. I think that is absolutely
essential to a thoughtful decision. I am reminded of the quote
by Senator Hagel during the course of the debate on Iraq where
he claimed that the Bush administration considered Congress as
a constitutional nuisance in terms of that particular conflict.
I dare say that that has occurred previous to the Bush
administration as well both with Democratic and Republican
Presidents.
However--am I done?
Chairman Berman. You can finish the sentence.
Mr. Delahunt. I will either make it a very long
sentence, deg. or I will stop. I thank the gentleman.
Chairman Berman. The time of the gentleman has expired. The
gentleman from Texas, Mr. Paul.
Mr. Paul. Thank you, Mr. Chairman, and welcome, panel.
I do appreciate the chairman bringing this very important
issue before us because it is something that I have been
talking about for a long time, and I think it is crucial. I
agree that the War Powers Resolution has not functioned very
well, and a lot of people have argued that it is
unconstitutional. Of course, the Presidents have argued it was
unconstitutional because they wanted more power and more
leeway, and others, such as myself, have argued that it has
given the President too much power. It actually legalized war
for 90 days, and it is very difficult to get out of a war once
it gets started.
Since World War II, we have had, essentially, perpetual
war, deg. with no significant congressional approval,
in that there has never been a declaration of war. There is a
lot of ambiguity, but, quite frankly, I think the ambiguity
comes from the fact that we do not follow precisely, which is
very, very clearly stated in the Constitution: You cannot go to
a war unless a war is declared. We would be a lot better off if
we just followed that mandate.
Chairman Berman. The time of the gentleman has expired. The
gentleman from Georgia, Mr. Scott, is recognized for 1 minute.
Mr. Scott. Thank you very much, Mr. Chairman. I, too, want
to commend you all for coming before us and doing this
extraordinary work. There is no more important work than what
we do to make the decision before we send our young men and
women into harm's way, but this one point: This legislation
calls for a congressional vote approving military action 30
days after its start. If Congress does not approve of the
military action, it can submit a resolution expressing its
disapproval.
My point is, submitting a disapproval resolution seems
unnecessary when Congress can simply practice the
constitutional rights and deny funding. So the question is, why
is there a need for this additional measure? I think that was
the point we wanted to make.
Chairman Berman. The time of the gentleman has expired. The
gentleman from Missouri, Mr. Carnahan, is recognized for 1
minute.
Mr. Carnahan. Thank you, Mr. Chairman. A quick thanks to
the members of the Commission for this work--I think it is long
overdue--also to Subcommittee Chairman Delahunt for the
hearings we had in his subcommittee last Congress and to the
chairman for bringing this up.
It is an issue that me and my colleagues believe needs to
be reexamined and revisited in ways that are constitutional and
practical. I cannot begin this debate without mentioning my
friend, the late Missouri Senator, Tom Eagleton, who was one of
the original champions of preserving the war powers with the
popularly elected Congress.
While he ultimately voted against the final committee
report because he viewed it as too watered down, his work on
subsequent attempts to strengthen the War Powers Resolution
left an indelible mark on the debate surrounding Congress's
role in war.
Senator Eagleton also sought to prevent an end-run around
congressional authorization by the executive branch by seeking
to prevent the President from using treaties and other
authorities as basis for going to war.
So I am anxious to hear the panel talk about that today. A
timely hearing, Mr. Chairman.
Chairman Berman. The time of the gentleman has expired. The
gentleman from Indiana, Mr. Burton.
Mr. Burton. Mr. Chairman, it is nice to have these three
great people here, especially Lee Hamilton from Indiana. We
have that Hoosier intelligence here at the desk, and we really
appreciate it.
You know, there have been times when Presidents have gone
beyond their authority, such as Lincoln and Jackson, and what I
want to find out today is how we deal with those gray areas,
because there are gray areas. So if you could illuminate those
areas, I would really appreciate it.
Chairman Berman. The time of the gentleman has expired. The
gentleman from California, Mr. Rohrabacher, is recognized for 1
minute.
Mr. Rohrabacher. Thank you very much, Mr. Chairman. Let me
note, I have served under two of our witnesses today, Chairman
Hamilton, but also under Mr. Baker, who was the Chief of Staff
at the White House when I worked at the White House. But I have
listened a great deal to Mr. Christopher, and I do not usually
listen to people who I am working under, so they have noticed.
Chairman Berman. All right.
Mr. Rohrabacher. Let me just note both of them were fine
bosses and contributed a lot to my understanding of how the
world works, and I appreciate the guidance from both of them in
my career and look forward to this testimony.
Let me just say very quickly, I do not think we need a
change in the law. We need to have Congress have courage enough
to use the powers that we already have to balance out the
authority of the President in this very important area in terms
of war-fighting and committing of our troops.
As far as I am concerned, Congress has been gutless and
unwilling to exercise the power it already has. Why change the
law when we are not even exercising the authority we have got?
Thank you.
Chairman Berman. The time of the gentleman has expired. The
gentleman from Virginia is recognized for 1 minute.
Mr. Connolly. Thank you, Mr. Chairman, and thank you for
holding this hearing.
Article 1, Section 8 of the Constitution explicitly grants
the legislative branch the exclusive power to declare war.
Article 2, Section 2 declares the President shall be the
Commander-in-Chief with respect to carrying out the exercise of
such powers declared by the Congress.
In no way did the Founding Fathers envision vesting the
power to declare war with the President. In fact, they were
fleeing from that very model of government, yet, for the past
half-century, this body has abrogated its responsibility and
watched an all-too-willing executive branch step in to fill the
void. To wit, the last formal declaration of war made by this
Congress was World War II, but we have repeatedly sent and
currently have troops deployed at war.
Today, we are 7 years in this largest kinetic U.S. military
engagement since the Revolutionary War, predicated on a flimsy
congressional authorization and a string of exaggerated
intelligence from the Executive.
Since it was enacted in 1973, no President has ceded the
argument that the War Powers Resolution was necessary, let
alone constitutional, and I think they are right. I think
Congress needs to step up to its responsibility, and I think we
need to have this kind of dialogue about what are the proper
roles of the Executive.
Chairman Berman. The time of the gentleman----
Mr. Connolly. Thank you, and if I may, Mr. Chairman, simply
acknowledge that the former Governor of Virginia, Gerry
Baliles, is here today. We are very pleased to have him.
Chairman Berman. Yes. Do any other members of the committee
seek recognition? The gentlelady from California, Ambassador
Watson.
Ms. Watson. Thank you so much, Mr. Chairman, for this
hearing, and it is clear from the War in Iraq that discourse
between Congress and the President must begin at the onset of
significant armed conflict.
Looking back, in retrospect, the War Powers Resolution of
1973 does not provide a need forum. It is unclear that adopting
the proposed War Powers Resolution of 2009 will encourage the
President to begin the necessary discussion and truly consult
with Congress and the people, but it is a start to making
necessary changes on how our country enters significant armed
conflict.
So I look forward to the testimony, and I welcome our
expert witnesses. Thank you.
Chairman Berman. The time of the gentlelady has expired.
The gentlelady from California, Ms. Lee, is recognized for 1
minute.
Ms. Lee. Thank you, Mr. Chairman. I, too, want to thank you
and recognize all of you for the service that you have provided
to our country, and I am so glad that you are here today and we
have come to this point.
My predecessor, Ron Dellums, was very involved in issues
around the War Powers Act, and I have been deeply involved in
them also as a result of being on his staff and now as a
Member.
There are several issues, and I hope the Commission will be
able to address some of these issues. One is, of course, the
President has the authority to use force to prevent imminent
attacks on the United States. So I want to find out, did the
Commission address the authorization or an authorization to use
force as a preemptive strike to prevent future military
attacks, just how that would proceed within your
recommendations of the War Powers Act revision.
Also, I am one who believes that only Congress can declare
war. I still believe that, and I do not believe we have the
authority to provide the authority to the President to do
whatever, and so let me just ask you if you could address the
authorization to use force versus a declaration of war.
Chairman Berman. The time of the gentlelady has expired.
Ms. Lee. Thank you very much.
Chairman Berman. If there is no one else seeking
recognition, I will now turn to our witness panel, for whom no
introduction is really necessary, but I will give one anyway.
James A. Baker, III, served as the 61st Secretary of State
under President George H.W. Bush from 1989 to 1992 and as
President Bush's White House Chief of Staff from 1992 to 1993.
Mr. Baker, a 1991 recipient of the Presidential Medal of
Freedom, served during President Ronald Reagan's administration
as Chief of Staff from 1981 to 1985 and as Secretary of the
Treasury from 1985 to 1988.
Mr. Baker is the honorary chairman of the James A.
Baker, deg. III, deg. Institute for Public
Policy at Rice University and senior partner at the law firm,
Baker Botts.
Mr. Baker and former U.S. Congressman Lee Hamilton served
as co-chairs of the Iraq Study Group in 2006, and Mr. Baker and
former President Jimmy Carter served as co-chairs of the
Commission on Federal Election Reform in 2005.
Warren Christopher served as the 63rd Secretary of State
under President William J. Clinton from 1993 to 1997. He served
as the Deputy Attorney General of the United States from 1967
to 1969 and as the Deputy Secretary of State of the United
States from 1979 to 1981. A 1981 recipient of the Presidential
Medal of Freedom, Mr. Christopher is senior partner at the law
firm of O'Melveny & Myers, where he was chairman from 1982 to
1992.
In order to not to deg.look parochial, I will not
specifically refer to the major contributions he has made to
the Los Angeles community in a whole variety of areas, and, of
course, he now lives there.
Lee Hamilton is president and director of the Woodrow
Wilson International Center for Scholars and a director of the
Center on Congress at Indiana University. Lee Hamilton served
for 34 years in Congress, representing Indiana's Ninth District
from January 1965 to January 1999. During his tenure, he served
as chairman and ranking member of this committee. He also
chaired the Subcommittee on Europe and the Middle East from the
early 1970s until 1993, along with at least four other
committees during his congressional tenure.
Since leaving the House, Hamilton has served on every major
commission on national security, including a stint as vice
chair of the National Commission on Terrorist Attacks Upon the
United States, known as the 9-11 Commission, and co-chair of
the Iraq Study Group.
Congressman Hamilton, thank you very much for returning to
the committee. I understand you will not be giving an opening
statement, but you will be available to answer questions. And I
want to, as Jerry Connolly did, recognize the director of the
Miller Center, who sponsored this Commission, the former
Governor of Virginia, Gerald Baliles, who performed a valued
role as an adviser to the Commission.
Without objection, the executive summary of the National
Commission's Report and the proposed legislation offered by the
Commission shall be inserted into the record, and, Mr. Baker, I
call upon you to proceed with your opening statement.
[The information referred to follows:]Executive
Summary deg.
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STATEMENT OF THE HONORABLE JAMES A. BAKER, III, SENIOR PARTNER,
BAKER BOTTS LLP (FORMER SECRETARY OF STATE)
Mr. Baker. Thank you, sir, very much.
Chairman Berman and Ranking Member Ros-Lehtinen and members
of the committee, it is a real honor for us to be with you
today. We are here of course to discuss the report of the War
Powers Commission, which Secretary Christopher and I co-chaired
and on which your esteemed and very distinguished former
chairman, Lee Hamilton, served as a very valuable member. We
are quite fortunate, as you have noted, Mr. Chairman, that
Chairman Hamilton is with us here this morning.
Let me begin with a bit of background on the Commission and
the serious problem that it was formed to deal with, and then
Secretary Christopher will detail our proposed new legislation.
Two years ago, Chris and I were approached by the Miller
Center at the University of Virginia, and as you have noted,
Mr. Chairman, the director of that very fine center, the
distinguished former Governor of Virginia, Gerald Baliles, is
with us today.
We were asked at that time to co-chair an independent but
bipartisan commission to consider an issue that has deviled
legal experts and government officials since the very day our
Constitution was framed, and that is of course the question of
how our Nation makes the decision to go to war.
As we know, our Constitution gives the President the powers
of Commander-in-Chief. The Congress has of course the power of
the purse and the power to declare war, but history indicates
that Presidents and Congresses have often disagreed about their
respective roles in the decision to go to war, and the Supreme
Court has shied away from settling the constitutional issue. So
it was evident to us that if we were going to recommend
anything meaningful that there had to be some practical or
pragmatic solution to this conundrum.
As we put together the Commission, we thought it was
important to have a wide range of perspectives and voices, and
so our Commission includes legal experts, former congressional
members, former White House staffers and former military
leaders. Our 12-member Commission is equal part Democrats and
Republicans.
After 14 months of study, Mr. Chairman, we concluded that
the central law governing this critical decision, the War
Powers Resolution of 1973, is ineffective, it is unworkable,
and it should be repealed and replaced with a better law. The
1973 resolution's greatest fault is that most legal experts
would consider it unconstitutional, although I think it is
important to note that the Supreme Court has never ruled on it.
We believe that the rule of law, which, of course, I am
sure everybody in this room would agree, is a centerpiece of
American democracy, is undermined and is damaged when the main
statute in this vital policy area is regularly questioned or
ignored.
The War Powers Resolution of 1973 has other problems. It
calls for the President to file reports of armed conflicts and
then use these filings to trigger the obligation for the
President to remove troops within 60 or 90 days if Congress has
not affirmatively approved the military action. This of course
purports to allow Congress to halt military campaigns simply by
inaction. Unsurprisingly, not one President, Democrat or
Republican, has filed reports in way that would trigger the
obligation to withdraw forces. As a result, the 1973 statute
has been honored more in the breach than in the observance.
Recognizing this, others have suggested amending or
replacing that flawed 1973 law, but no such proposal has gotten
very far, typically because most of them have sided too heavily
either with the Congress or with the President. A common theme,
however, runs through all of these efforts, and that common
theme is the importance of meaningful consultation between the
President and the Congress before the Nation is committed to
war, and our proposed statute would do exactly that. It would
promote, in fact mandate, meaningful discussion between the
President and Congress when America's sons and daughters are to
be sent into harm's way.
But, Mr. Chairman, it does so in a way that does not in any
way limit or prejudice either the executive branch's right or
the Congress's right or ability to assert their respective
constitutional war powers. Neither branch is prejudiced by what
we are proposing, and, in fact, our statute expressly preserves
each branch's constitutional arguments. In fact, we think that
both branches--and we know the American people--would benefit
from an enactment of this statute.
Mr. Chairman, our report is unanimous. That is somewhat
remarkable given the different political philosophies on the
part of the members of our Commission. I would submit to you
that there is something good about a solution we suggest when
you can get people from different political perspectives like
Judge Abner Mikva and former Attorney General Edwin Meese to
agree on a solution, but both of these gentlemen served very
ably on our Commission, and both of them support this result.
Before I turn the microphone over to Secretary Christopher,
let me simply say how rewarding it has been for me, personally,
to work with this fine gentleman and this able statesman and
this dedicated public servant, a truly great American,
Secretary Christopher.
[The prepared statement of Mr. Baker
follows:]James Baker deg.
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Chairman Berman. Thank you very much, Secretary Baker.
Secretary Christopher, I look forward to your testimony.
STATEMENT OF THE HONORABLE WARREN M. CHRISTOPHER, SENIOR
PARTNER, O'MELVENY & MYERS LLP (FORMER SECRETARY OF STATE)
Mr. Christopher. Mr. Chairman, Ranking Member, and members
of the committee, my testimony will follow briefly on Secretary
Baker's testimony.
Without going on about it, let me just say it is a lot more
fun to be working with Secretary Baker than working against
him. He is really an extraordinary American leader.
The statement I have will be brief. Let me just say that
the statute that we are putting forward is quite
straightforward and almost simple. It establishes a bipartisan
joint congressional consultation committee consisting of the
leaders of the House and Senate and the chairs of the key
committees.
Under the proposed statute, the committee is provided with
a permanent professional staff and access to relevant
intelligence information, and this is an innovation which we
think the Congress ought to very much welcome.
The statute requires, as the chairman has said, the
President to consult with the committee before deploying U.S.
troops into any significant armed conflict, which is defined as
a combat operation lasting more than 1 week. Now, if secrecy
precludes prior consultation of that kind, the President is
required to consult with the committee within 3 days after the
conflict begins.
Within 30 days after the armed conflict begins, Congress is
required to vote up or down on the resolution. If the
resolution is defeated, any senator or representative may file
a resolution of disapproval.
Mr. Chairman, I recognize that many advocates of
congressional power argue that Article 1, Section 8 of the
Constitution puts the decision to go to war in the hands of
Congress by giving the Congress the power to declare war. These
proponents say that, by this provision, the framers of the
Constitution stripped the executive branch of the power to
commence war, which the King of England enjoyed and which the
framers wanted to avoid.
On the other hand, on the other side of the argument,
proponents of Presidential authority point to the Executive
power and Commander-in-Chief clauses of the Constitution. They
say that the framers wanted to put the authority to make war in
the hands of the government official who had the most ability
to execute and the most information, and they point to the
recent history of the President's predominance as proof of
their position.
Now, Mr. Chairman, a whole forest of trees has been felled
in writings on both sides of the issue, pro and con, and
although both sides have good arguments to make, I would say
that only three propositions hold true.
First, no consensus has emerged from the debate in 200
years of our constitutional history. No one side or the other
has ``won'' this argument.
Second, only a constitutional amendment or a decisive
Supreme Court opinion will resolve the fundamental debate, and
neither one of those things is very likely to happen. Courts
have turned down war powers cases filed by as many as 100
Members of Congress.
Third, Mr. Chairman, despite what I and my fellow
Commission members might feel about this debate, one way or the
other, we determined that we simply cannot resolve the debate,
and the last thing we wanted to do was simply offer up another
report that contained an opinion as to who is right and wrong.
Thus, in drafting the statute before you, we have
deliberately decided not to try to resolve this underlying
constitutional debate and have preserved the rights of both the
Congress and the Executive.
Instead of trying to call balls or strikes, we unanimously
agreed that any legislative reform must focus on practical
steps to ensure that the President and the Congress consult in
a meaningful way before we go to war. We believe that, among
all available alternatives, the proposed statute best
accomplishes that goal. We think the statute is a significant
improvement over the 1973 resolution, and it will be good for
the Congress, the President and the American people.
From the standpoint of the Congress, the statute gives the
Congress a more significant seat at the table when the Congress
is thinking about whether or not the Nation should go to war.
It provides not only a seat at the table but a permanent staff
and access to all relevant intelligence information. The
statute also calls for a genuine consultation, not just lip
service, not just notification.
Furthermore, I strongly believe that the seasoned views of
congressional leaders constitute a vital resource for the
President in his decision-making process. Having heard a number
of these debates over the years, I can say I think it is very
healthy for the President to hear independent views from people
who do not work for him. The President I think is also
advantaged because this proposal would eliminate a law that
every President since 1973 has regarded as unconstitutional but
nevertheless has to worry about and is an overhang. This
proposal also provides a mechanism so he knows who to consult
with in Congress, he just does not have to guess.
Mr. Chairman, working with the former chairman of the
committee, Lee Hamilton, here on my left, we have sought to set
out a careful balance between the Congress and the President on
matters like this of enormous importance. I am sure that
neither the strongest advocates of congressional power nor
those of Presidential power will be happy completely with our
proposal, but we think that what we have done is a fair
reflection of the right balance to strike. We think it is a
practical and pragmatic reform. Thank you very much, Mr.
Chairman.
[The prepared statement of Mr. Christopher
follows:]Warren Christopher deg.
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Chairman Berman. Thank you very much.
Am I correct, Lee, that you have no opening statement?
Okay. Then I will yield myself 5 minutes to begin the
questioning, and this to any of you who would care to respond.
Now I have two questions. I will throw them both out
both deg.and remind my colleagues that the 5 minutes
includes what I say and their answers, so pace yourself.
Question No. 1: I mentioned this earlier; one thing that
worries me about this is the extent to which this more
formalized, institutionalized, consultative process, which I
find appealing, does that become the basis for, at least on the
occasions where the White House has asked the Congress for the
authorization to use force--sometimes thought of as the
functional equivalent of a declaration of war, but others
disagree--but will that reduce the incentive for the White
House to do what on at least three occasions they have done,
which is come before the House--started to seek a direct vote
by both Houses?
The second question is as to the exceptions in terms of the
time limits and the bases for not applying this process.
I raise the hypothetical question about a decision to hit
nuclear installations in another country in order to prevent
them from developing a nuclear weapon. The timeframe might be
thought of in less than 1 week, but the consequences of that
decision could lead to a conflict that could go much longer
than 1 week.
In a more general sense, to what extent do these exceptions
threaten to swallow the general rule that your proposal makes?
Mr. Baker. Mr. Chairman, with respect to your first
question, I do not believe that this would reduce the White
House's information to come to the Congress for approval. In
fact, I think it would increase it. As I think you pointed out
in your opening statement, that has been the case over the last
50 years, with the exceptions I think of Grenada, Panama and
Bosnia. The White House has actually come to the Congress for
approval and gotten a vote of approval.
But I think the reason Presidents come to the Congress is
because they need the political support that is gained by
getting the approval of the representatives of the people, and
by requiring extended and more intensive consultation in the
first instance, we think it would move that practice forward
positively and not negatively.
I do not think the fact that the President consulted would
mean that he would be satisfied to go forward without trying to
get Congress's approval. Presidents normally want Congress's
approval for the political benefit that that brings, not
because they think they need it because no President believes
he, so far, he absolutely needs it.
So they come to the Congress for the political benefit that
that brings, and I think they would continue to do so.
I might take a quick shot at your second question, and then
maybe Chris wants to add.
Chairman Berman. Only because of the time maybe on the
second one, just because we only have another minute before I
have to gavel myself down.
Mr. Christopher. Mr. Chairman, any hypothetical such as you
put forward would have to be measured against the statute. To
be brief about it, any conflict that goes on longer than 7 days
requires the President to consult and the Congress to vote up
or down on that particular action. You can guess as well as
others as to whether such a conflict that would take out
nuclear facilities might take longer than 7 days. It probably
will, but with respect to any such hypothetical, I always
suggest that it be laid down against the statute and see how
the statute affects it.
Mr. Hamilton. Mr. Chairman, may I simply observe that every
President confronts a really difficult judgment how to consult
with the Congress. The Congress is a very large, very diffuse
institution. One of the great advantages of the proposed
statute is that it gives the President a mechanism, a focal
point, by which to consult, and I think any President would use
that extensively.
There is also a provision in this bill that encourages, but
it does not require, that a President consult regularly with
this consultative committee. I think that you cannot impose
consultation on anybody if they do not want to consult, I
guess, but we try to encourage it here. The result of these two
things, in my view, would be you would develop an ongoing
relationship between the President and the Congress on many
questions of foreign policy and particularly the one of going
to war.
Chairman Berman. My time has expired. The gentlelady from
Florida.
Ms. Ros-Lehtinen. Thank you so much, Mr. Chairman, and
thank you for your excellent testimony this morning.
Following up on my opening remarks, your legislative
proposal on page 9, Section 9, ``Definitions,'' talks about the
term ``significant armed conflicts.'' It says that ``it shall
not include any commitment of the United States Armed Forces by
the President for the following reasons: (A) covert operations,
(B) training exercises, (C) acts to prevent criminal activity,
(D) limited reprisals against terrorists.''
Couldn't not deg.a creative Executive construe
these exemptions very broadly to avoid the reporting and
legislative requirements of the statute, and why do you expect
that those ambiguities would be less problematic than the
interpretative disputes that have arisen under the War Powers
Resolution now? Thank you, gentlemen.
Mr. Baker. Not in my opinion, Congresswoman. I think that
what we are calling for here is a certain amount of exercise of
good faith on both sides. We are not going to resolve the
constitutional question here, as we point out in our testimony.
You can only do that by a Supreme Court decision or a
constitutional amendment. We are not going to get either one of
those. But we do need to try to move toward greater cooperation
and consultation.
The exclusions that we have listed here all disappear if a
conflict has extended for more than 7 days. Nothing in here
would be exempt after the conflict.
Let us suppose the President took action to prevent an
imminent attack on the United States and that if that extended
for more than 7 days, the obligation to consult would be
triggered, and the obligation to periodically consult as the
conflict went on would be triggered, and the obligation to file
a report once a year listing all significant armed conflicts
and other operations would be triggered.
Ms. Ros-Lehtinen. Thank you. Mr. Christopher? Mr. Hamilton?
Mr. Hamilton. Mrs. Ros-Lehtinen, let me just observe that
the exceptions to the significant armed conflict are really
quite precise, and they are very limited in scope, and I do not
think they create loopholes, if you would.
We would have to acknowledge here that we spent as a
commission an awful lot of time on the definition of
``significant armed conflict.'' Obviously, that is very hard to
do, and we resolved it by defining it in terms of length of
time, a conflict lasting more than 1 week.
The exceptions that are made there are precise, they are
ones clearly where you want the President to act on his
Executive authority, and they are quite limited.
Ms. Ros-Lehtinen. Mr. Christopher, if you wanted to
comment.
Mr. Christopher. Congresswoman, I would just point to
Section 4(b), which specifically provides that if any action
goes on longer than 7 days, then it is subject to the
provisions of the statute, and as Congressman Hamilton has just
said, we worked a long time on that particular provision, and
we think that this does give the President the authority to act
in emergency situations but constrains that authority by the 7-
day rule.
Ms. Ros-Lehtinen. I still have a minute. On this 7-day
rule, ``The term `significant armed conflict' shall not include
any commitment of the U.S. Armed Forces by the President for
the following purposes,'' and that is not subject to the 7
days.
Mr. Christopher. Yes. I think if you look at Section 4(b),
Congresswoman, you will see that if any one of the actions
described in Section 3(b) of this act becomes a ``significant
armed conflict,'' as defined in Section 5(a), then the
President shall initiate the consultation with the Joint
Consultation Committee. So that 7-day provision is an override
on each of the exception provisions.
Ms. Ros-Lehtinen. Thank you. I think, in my 20 seconds that
are left, we have different versions obviously, but it is the
definitions of the exemptions that I believe that are just as
open to controversy, to interpretation, as the original act
itself. Thank you very much.
Mr. Christopher. I am very sorry, Congresswoman. I did not
realize that you had a different numbering than we have here.
Chairman Berman. Just to clarify the substantive issue, you
are saying, number one, 9.1. The other sections are subject to
9.1, so if there is a combat operation lasting more than 1
week, it does not matter what kind of consultation process
triggers it.
Mr. Christopher. Chairman, that is correct.
Chairman Berman. The gentleman from New Jersey, Mr. Payne,
is recognized for 5 minutes.
Mr. Payne. Thank you very much. I just have a question. As
it has been indicated in the testimony that the courts have
failed to involve themselves, the judiciary, in the question of
who has the authority, whether it is the executive branch
totally or whether it is the Congress, and I guess my question
is that I said in the past, courts have declined jurisdiction
for deciding whether the President violated the War Powers
Resolution by entering into hostilities without congressional
authorization.
If a Member of Congress in your opinion were to file suit
against the President for violating the War Powers Consultation
Act of 2009, the one that we have before us, would in your
opinion a court be more likely to accept jurisdiction for
deciding the merit of the case? Mr. Baker.
Mr. Baker. That is a great question. That is a great
question, and you may get differences of opinion among the
lawyers here at this witness table. I do not know what
Secretary Christopher's view is. My view is, no, they would not
be any more likely to. I think they would still consider it to
be a political issue that they might try to decline to take
jurisdiction of, but you would have a much more clearer
situation, I think, than the case of the statute, the
constitutionality of which is generally widely questioned.
Mr. Christopher. Congressman, you never predict what the
Supreme Court is going to do for sure. More than 100 Members of
Congress have sought to invoke the jurisdiction of the Supreme
Court of the United States. For one reason or another, usually
because the lower courts called it a political question, often
because they say the plaintiff does not have standing to sue,
the Court has declined to get into that. I think it wants to
stay away from that issue on political grounds.
Mr. Hamilton. Mr. Payne, we had a battery of lawyers advise
us on this question, and I think there was total unanimity
among the lawyers, and the two Secretaries have stated, that
courts have just stayed away from this and do not think it is
an appropriate role for the courts to get into this most
political of all questions, Do you go to war?
Mr. Payne. Well, thank you very much. They usually say up
there, ``If there are two lawyers in the room, you will at
least have two opinions.''
Mr. Baker. At least we all agreed on this, Congressman.
Mr. Payne. Yes. Thank you. I will yield back, Mr. Chairman.
Chairman Berman. Of course, that used to be the rule about
redistricting. Then Baker v. Carr came along, and all of a
sudden, the political question was not a political question.
You were not the Baker, though, I do not think.
The gentleman from New Jersey, Mr. Smith, is recognized for
5 minutes.
Mr. Smith of New Jersey. Thank you very much, Mr. Chairman.
Let me just say the draft that we have underscores some of
the concerns that the ranking member made. I would hope that if
we talked about ``significant armed conflict,'' we would allow
exclusions only in the most egregious matters. The legislation
we have suggests that such exclusions would include prevention
of ``imminent attacks, limited acts or reprisal against
terrorists or states that sponsor terrorism.'' That is exactly
in a way without a doubt what got us into the Iraqi War, and
then ``covert operations.''
So it seems as if the exclusions page on our draft just
makes it so that just about anything from an elasticity point
of view could be included. I believe we have got to be very
careful how we draft it. I was going to ask about that, but I
thank the ranking member for making that very important point.
Let me just ask about the makeup of the Joint Committee. I
served as chairman of the Veterans Affairs Committee, and I
often thought of that committee as the ``consequences
committee,'' having spent so many years working with service-
connected disabled veterans.
I know you drew your ideas from prior proposals, but would
it be advisable to include the Veterans Committee chairman and
ranking member? No one knows the burden of war better than a
veteran, especially a disabled veteran, and certainly their
representatives on that committee would have a very unique
perspective.
Secondly, the talk of consultation with the Joint
Congressional Committee and the conveyance of a classified
report setting forth the circumstances necessitating the
significant armed conflict, the objectives and the estimated
scope and duration of the conflict before ordering the
deployment of U.S. Armed Forces into significant armed conflict
is in my opinion necessary, prudent and will make potentially
reckless deployments less likely. It may also enhance the
sustainability, especially over the long run, of a deployment.
But the concern is that the secrecy part, which can be
exercised by the President, and you recognize that in Section
5(a), could render the consultation and reporting provisions
before an action moot. Every President thinks, and I say this
with respect, they know best, and Congress might be left out,
and that language then becomes almost sent to the Congress.
What are your thoughts on that?
Mr. Christopher. Congressman, on the first part of your
question, I think we wanted to keep the Consultation Committee
relatively simple, relatively narrow, but that would certainly
be an issue that Congress could decide. If it wanted to add the
chairman and ranking member of another committee, that could
certainly be done. That would simply be something that would be
up to Congress.
On the other question, I think we considered very carefully
the provisions, and we have gone about as far as I think we can
practically go in requiring consultation.
Mr. Smith of New Jersey. Secretary Baker?
Mr. Baker. Are you concerned that----
Mr. Smith of New Jersey. I am concerned that a Chief
Executive, a Commander-in-Chief, might construe everything to
be secret and then after the fact we get the information, and
then if these exclusions on the ``Definitions'' page were to be
enacted in the way our draft has it, you could fit everything
into that exclusion, and we will then have had very well-
meaning but ineffective legislation.
Mr. Baker. I think there is still some difference of view
on that last point.
First of all, on the secrecy issue, any President,
particularly one that wanted to act in bad faith, could keep
everything secret from you for 3 days but no more than that,
okay? But I think we have to assume here since we are talking
about trying to encourage cooperation and consultation that
there will be a modicum of good faith on both sides when
dealing with this difficult issue.
With respect to the exclusions, I think we tried to make
clear, and I believe this is correct, that after 7 days, you
have got to consult, that covert action is exempted completely
because there are other processes, procedures and statutes that
govern that. But I believe that it is correct to say that,
after an engagement has gone on for 7 days, even if they were
undertaken as one of the exclusion items, then the obligation
to consult would take place and the statute would be triggered.
Now that is my view.
Mr. Hamilton. Mr. Smith, obviously there are limitations to
the language here, and it is very, very difficult to try to
foresee the kind of events the President and the Congress would
be confronted with.
I do not know that we have got this language exactly right,
but it does seem to me that there are going to be a number of
instances, and we have identified, I think, most of them, where
Presidents must act quickly in emergency situations, and you do
not want to invoke the process that we have here in this
statute.
So we were trying to balance here the role of the Congress
on conflict on the one hand and the role of the Commander-in-
Chief to act quickly in defense of the Nation, and I think we
have done a reasonably good job of it, but obviously it is not
the easiest thing to write into statute.
Mr. Smith of New Jersey. Secretary Baker, did you want to
add something? I am long out of time.
Chairman Berman. You are a minute gone. I got so interested
in your question.
The time of the gentleman has expired. The gentleman from
Massachusetts, Mr. Delahunt.
Mr. Delahunt. Thank you, Mr. Chairman, and, again, let me
repeat, I think encouraging consultation is profoundly
important and very well might obviate much of the tension and
the conflict between the executive and the legislative
branches. But I would put forth that meaningful consultation,
even if it is genuine and done in good faith, and, presumably,
it does, in the end, does not give the President the power to
engage in military action without the approval or authorization
of Congress.
I take that view, and myself and my colleague from North
Carolina, Mr. Jones, will be introducing legislation before the
end of the month that embraces consultation but obviously takes
a different course in terms of Congress's role.
I agree with the gentleman who spoke earlier, my ranking
member, Mr. Rohrabacher, that the avoidance of the
congressional burden of authorization of military action in a
large degree is responsible for this debate and for this
tension and for this conflict, and I believe that the course
that we are on now is dangerous in the sense that Congress, not
the Executive, continues to allow the erosion of what is our
obligation.
Let me just also note that you refer to the funding
mechanism as a way for Congress to assert itself. I do not
accept that because I do not think it is always post facto. It
is after the initiation of a military action, and, again, going
back and reading, at least my reading of the Constitution is
that some sort of authorization is required, and we cannot just
simply look for rationales to avoid our burden, and again, I
think the consultative mechanism will help. I think it is
important, and I think it should be enthusiastically embraced
by this committee.
But I do not know if any of you had the opportunity to note
this morning's--I think it was in the Washington Post--opinion
piece by George Will related to the Iraq War, and it is
entitled, I think, ``Congress Shares the Burden.'' With the
expiration of the U.N. mandate, I would submit that there is no
authority, no authorization, for American military to conduct
offensive combat actions, and, again, that was the position
that was articulated by both the President, but the Secretary
of State, and by the Vice President prior to the election.
Unless we accept or confer or embrace the so-called Status
of Forces Agreement, which I believe it is not, and take some
action, we will continue to allow the erosion of the
congressional responsibility to occur, and I just wonder if any
of you had any comment on that observation, on the George Will
opinion piece.
Mr. Hamilton. Mr. Delahunt, I did see Mr. Will's piece, but
the point that you make, it has struck me, and the preliminary
comments of several members of the committee, you made the
point that Congress has been timid, that it has not been
aggressive enough in asserting its constitutional powers and
the like, and I think that view is widely shared among many
Members of Congress, I do not know if a majority, but widely
shared.
I think we believe what we have put forward is a very
practical approach, and it certainly does not resolve the
question that you are raising. You want to increase the power
of the Congress with regard to this critical question of when
you go to war.
There have been many, over a period of many years, who have
taken that position, and to be very candid about it, that
viewpoint has not been able to get a law enacted.
The reverse is also true. There have been many Members of
Congress who take the opposite view you do, and they want to
increase Executive power, and the argument has gone on and it
has not been resolved, and the proposal before you does not try
to resolve that question. We punt on it, if you would.
Our proposal avoids the constitutional debate, and it
respects, I think, the constitutional powers of both branches.
We are dealing with a very practical problem. The President
thinks we have got a national security threat out there. He
thinks that armed service action is needed, and we are trying
to make sure that you enhance the opinion available to the
President before he makes that decision by going outside his
official family and consulting Members of Congress.
We think people can agree on that and still take the
position that you take, Mr. Delahunt. In other words, you could
vote for this bill and still advocate your position. You would
not be prejudicing your position at all.
Chairman Berman. The time of the gentleman has definitely
expired, and the gentleman from California, Mr. Rohrabacher, is
recognized for 5 minutes.
Mr. Rohrabacher. Thank you very much, Mr. Chairman.
We note that, in 1999, when President Bill Clinton sent our
military forces to battle Bosnian Serbs, the House of
Representatives rejected authorization by a vote of 213 to 213.
Then the House defeated a measure declaring a state of war
between the United States and the Federal Republic of
Yugoslavia, and then we defeated a measure directing the
President to remove U.S. Armed Forces from operations against
the Federal Republic of Yugoslavia, and then both Houses of
Congress agreed to an emergency supplemental appropriation to
pay for it.
I do not necessarily think that increasing the influence of
people who now have demonstrated an inability to make a
decision on this end of the government, just improving
consultation between us and the executive branch is going to
make things better. I do not think it will necessarily create
any harm, and I will be reading your book. I have not done my
homework, but I will be reading it thoroughly, and I thank you
for spending the time and effort to focus on this relationship.
Clearly, the Constitution gave the preponderance of power
in terms of foreign policy, and at least the carrying out of
military operations, to the executive branch. Do you believe
that we need to in some way nudge that back?
I happen to believe that those people who are opposed to
the Iraq War--and you have heard a lot of rhetoric about it--
never were willing to act on that, so that is one of the
reasons we are here today discussing this issue.
Let me just get to the heart of the matter. Do you, as wise
men who are advising us, would you suggest that we need to
grant more authority, and this is a way to give a little bit
more emphasis on the legislative branch's role in conducting
military operations? Is that what we need to do? Is that what
this is all about?
Mr. Baker. No, not at all, Congressman, and that is not
what this act seeks to do, and that is not what this act does.
There are benefits in this act, we think, for the executive
branch and for the legislative branch, and what this act calls
for is frankly what most Presidents have done in most of the
conflicts that we have been engaged in over the past 50 years.
We do not see this as granting more authority to one branch
or the other; we see this as beneficial to both branches. There
are benefits in here for each branch, and we think it would be
beneficial as far as the general public is concerned, because
the testimony of 40 experts that came before us. And if you
look at the polling over the past 70 years, the American
people, when the question comes to war, they would like to
think that the congressional and executive branches are on the
same page. So they would like to see this. All this does is
enhance consultation.
Mr. Rohrabacher. Is that because there is an imbalance now?
Mr. Baker. It is because it is not structured, number one.
It is because this would tend, as Chairman Hamilton said, to
build trust between the branches if that consultation took
place. This specifies how Presidents should consult. Right now
you say, ``Consult with the Congress,'' and some Presidents do
it one way and some do it another. This would tell you how to
do it, and it would do it, by the way--and I want to volunteer
this for the chairman and the ranking member's benefit--it
would do it in a way that locks in the jurisdiction of this
committee, that does not take away any aspects of the
jurisdiction of this committee.
The resolution of approval called for in this legislation,
it specifically says, would originate here in this committee
and in Senate Foreign Relations. So, by setting up a
consultative committee, we are reflecting what Presidents have
done recently, most all of the time, in these cases of going to
war, but the leadership of the relevant committees and the
leadership of the Congress.
Chairman Berman. Seconds.
Mr. Hamilton. Mr. Rohrabacher, if this bill is perceived as
tilting power, constitutional power, to the Congress, or if it
is perceived the other way, as tilting power to the executive
branch, the bill is dead. It will never pass.
Mr. Baker. It might pass, but it would not become law.
Mr. Hamilton. ``It would not ever become law'' is a better
way to phrase it.
Mr. Rohrabacher. All of us need to exercise the authority
that we have been given. Thank you.
Chairman Berman. The time of the gentleman has expired. The
gentleman from Missouri, Mr. Carnahan, is recognized for 5
minutes.
Mr. Carnahan. Thank you, Mr. Chairman. I have two questions
I would like to present to the panel.
First, Presidents have used treaties and institutional
authorities, such as the U.N. and NATO, to avoid congressional
authorization for going to war. Do the recommendations in the
Commission's report address this issue, and, if so, how?
My second question: What are the consequences if the
President does not consult with the Joint Committee within 3
days after an emergency situation, and, frankly, what teeth are
in this proposal that are absent from the current law?
Mr. Christopher. Congressman, on your first question, we
dealt with that specifically what in your discussion draft is
called Section 7 on page 8, saying: ``The provisions of this
Act shall not be affected by any treaty obligations of the
United States.'' That means the President could not rely on a
treaty in order to avoid the consultation provisions of this
Act.
Mr. Carnahan. Thank you.
Mr. Baker. Now, with respect to what is the penalty, what
is the sanction, it is diminished political support for a
foreign engagement that the President might think is important
to the national security of this country because if he does not
comply with a law that is as plain and as clear as this and on
the books, then he would suffer the political consequences of
not doing so.
We have already answered the question about whether we
think the Federal courts would grant jurisdiction of a dispute
between a Member of Congress and the President for his refusal
to abide by the provision, but he would suffer I think
substantial political damage.
Mr. Hamilton. We believe, Congressman Carnahan, that you
have got a win-win-win situation in this bill. We think the
President will look favorably upon the bill because it frees
his hand to address minor armed conflicts, it frees his hand to
respond to emergencies, and it provides him with specific
people in Congress to consult with. There is always a big
question of, Who do I consult with in the executive branch?
This answers the question for him and for the Congress.
We think it is a win situation for the Congress because we
empower the Congress to have a joint consultative committee,
fully staffed, bipartisan, fully resourced and available to
classified information. It has a very clear mechanism for the
Congress to vote up or down, and, above everything else, it
assures the Congress of the United States that it has a seat at
the table when the decisions are being discussed. You do not
always have that. You will be assured of it with this bill.
It is a win for the American people. We went back 70 years,
I believe, to look at poll results, and they show over and over
and over again that the American people want this most serious
of all questions to be a shared decision by Members of Congress
and, of course, the executive branch. They do not want the
decision of going to war to be made by one person even if that
person is the President. So we analyzed this proposed statute
as a win-win-win situation.
Mr. Carnahan. Secretary Christopher?
Mr. Christopher. Mr. Chairman, I wonder if I could take a
minute, not on anyone's time, to clarify the record.
There has been quite a lot of confusion because the
discussion draft that you have before you misstates the
section, and the ranking member I think was onto this. If you
look at page 5 where it refers in the middle of the page to
Section 3(b), that should read ``Section 9.2,'' and the Section
3(a) later in that should read ``Section 9, subparagraph 2.''
So that means that if there is a military action described
in Section 3(b), that is the exception section. If it becomes a
significant armed conflict that is longer than 7 days, then the
consultation provision provides, and that will I think clarify
the record and perhaps clarify some of the questions that have
been raised. The exceptions in Section 9.2 are really subject
to the consultation requirement if the conflict goes on longer
than 7 days.
Thank you, Mr. Chairman, for the chance to clarify that.
Mr. Baker. If it morphs into a significant armed conflict,
then the requirements for consultation----
Chairman Berman. Consultation trumps exceptions after 7
days.
Mr. Christopher. Precisely.
Chairman Berman. Okay.
Mr. Baker. There is a specific provision in the report that
was misprinted in the committee print.
Chairman Berman. The time of the gentleman has expired. We
appreciate the clarification.
The gentleman from Texas, Mr. Paul, is recognized for 5
minutes.
Mr. Paul. Thank you, Mr. Chairman. I hear three points that
the panel has made: That the War Powers Resolution has been
ineffective, and I agree with that; it should be repealed, and
I agree with that. The conclusion, though, I do not agree with,
that we need a new law, and I think that is where the real
important part comes.
When the Congress passed the War Powers Resolution in the
1970s, it was motivated by the antiwar people thinking it would
help, but the unintended consequence was disastrous, not only
the chaos that you described but the fact that it legalized war
for 90 days. That is what it did.
It gave greater power to the President, not less power to
the President, and it took away this assumption that Congress
had the responsibility to declare war.
The panel says that they do not pretend to resolve the
constitutional issue, which is fine--that is not your job--and
you reassure us that the courts seem to want to stay away so
that we do not have to worry about the courts, but what we
should worry about is our Oath of Office and our
responsibilities here as Congresspeople, and that to me is the
ominous responsibility we have.
I am reassured by Mr. Baker's comment that if it tilts
toward one branch of government, maybe this thing will not get
passed, and the way I interpret it, it obviously does, and I
will challenge the panel on this, and then they can answer my
comments.
The reason I challenge this is, first, the consultation is
not with the Congress. You pick out a few people, select
people, and they are supposed to represent us. No. The
responsibility for war is the Congress, not a select group.
So the President starts a war, it lasts 1 week, he comes to
this select committee, and they say, ``Okay. It sounds like we
had better do it,'' and then, after 30 days, we have this
opportunity to vote. Then we vote that we disapprove of the
war, and then we have to have another vote, a vote of
disapproval. So we pass that, and then the President vetoes it.
So what we are establishing here is the power of the
President to pursue war with a select committee and then
endorsed by the Congress with one-third of the Congress because
he can veto this.
I think this is going absolutely in the wrong direction,
and I think, as Mr. Rohrabacher pointed out earlier, it is
mostly because we do not live up to our commitments.
Once again, I think the panel makes the point that we do
have a fallback, and the fallback is that we can deny funds,
but then we are politically trapped. We never could do that in
Korea or Vietnam--it goes on and on--because then we get
painted as un-American and we do not care about the troops.
So once they get the upper hand, they can start the war,
run the war, and the further the Congress endorsed the war, get
the people in harm's way, and then they say, ``Oh, you are un-
American if you vote against this process.''
So I ask the panel, show me why this is not tilting power
to the executive branch and to a small group of congressmen
rather than reestablishing the principle that, in this country,
very precisely, it was stated that the Congress declares war.
This has no interference whatsoever for the President to act in
emergencies. That is clear-cut. We knew that even before the
War Powers Resolution, and this does not change it. So why am I
wrong in thinking that this is tilting toward the President and
against the Congress?
Mr. Baker. I think you are wrong, Congressman, because, if
you do not do anything, you have the situation you are talking
about. You are not going to have anything, and Presidents are
going to do what they consider necessary to protect the
national security of the country, and they have the power, they
claim, under the Constitution to do that, and you are not going
to be able to do anything about it.
So you are better off I think, we think, if the two
branches consult with each other rather than continuing to
knock heads over who has the power, the ultimate power, because
we are not going to get an answer to that.
Mr. Paul. Of course, I put most of the blame on the
Congress for being derelict in their responsibility, but if
Presidents just go out and start wars, sure, the Congress has
something to do. They should not fund them, and, if necessary,
they need to impeach the President.
Actually, a third of the Congress and the President can
pursue war. Is that not correct?
Mr. Baker. Well, you say that because the President has a
right to veto bills presented to him under the presentment
clause. That happens to be in the Constitution. If you do not
like that, you can get a constitutional amendment passed that
would delete that. I do not think you will have any success.
Mr. Paul. I am not arguing that point. I am arguing whether
or not I am right that one-third of the Congress and the
President can pursue war. That is the point.
Mr. Baker. No, you are not right because you have, under
our legislation specifically, not only a right to vote but a
duty to vote with respect to it, and if it is voted down here
in the Congress, you are just on the losing side. That is what
that is.
Mr. Hamilton. Congressman Paul, may I?
Chairman Berman. I am only concerned that the votes are
going to come, and I want to get as many members as possible.
So the 5 minutes has expired, and I apologize. It is a very
interesting discussion.
The gentleman from Georgia, Mr. Scott.
Mr. Scott. Thank you very much, Mr. Chairman, and, again,
welcome to the committee.
I wanted to kind of get to a point. I think we could get a
better understanding if we try to get an applicable example
here, especially within the area of what is a significant armed
conflict, and I think that most immediate to us would be a
decision coming affecting a terrorist attack, a reprisal to a
terrorist attack or an attack from a nation that sponsors
terrorists.
Within your proposal, you are exempting limited acts of
reprisal against terrorists or states that sponsor terrorism
and not considering that as a significant armed conflict.
So let us suppose if we said--where would this fall? If,
for example, we were to retaliate and had evidence that
terrorists work on the border in Pakistan and would involve the
President making the decision to send Armed Forces into
Pakistan, where would that fall within your proposal as far as
consultation?
Mr. Christopher. Congressman, if that response lasted
longer than 7 days, the consultation provisions would be
required. If it simply lasted a day or two, that would be
within the exemption.
The theory of our bill is that almost any action that is
significant would be 7 days or longer, and that would bring on
the consultation provision and thus invoke a whole series of
things that follows on the consultation provision, that is, the
vote up or down by the Congress.
Mr. Scott. So that would trigger the President coming and
meeting with the select committee. Now would you share with me,
under your proposal, how are the members of this Joint
Committee for Consultation selected?
Mr. Christopher. They are designated in the statute to be
the leaders of both the House and the Senate and the chairmen
and ranking members of the key committees, a group of about 20:
The chairman and ranking member of this committee, the chairman
and ranking member of the Senate Foreign Relations Committee,
the Armed Services Committee, the Intelligence Committee and so
forth. You get a group of congressional leaders previously
designated so the President will know who he should consult
with.
Mr. Scott. Does the President have any input into, before
this election is made, as to who is being considered?
Mr. Christopher. No. The selection is made deliberately by
the legislation itself because, in the past, there has been a
tendency of Presidents naturally enough to consult with people
who they think will agree with them, and this proposal sets up
a body that provides people from both parties and the key
Members of Congress on this particular issue.
Mr. Scott. Now, in Section 5 of the legislation, it calls
for a congressional vote approving military action 30 days
after its start----
Chairman Berman. Mr. Scott, let me just interject 1 second.
I am advised there was a timekeeper mistake, so you have about
a minute, or a minute and a quarter, left, notwithstanding what
the clock shows.
Mr. Scott. Okay. Thank you very much.
Thirty days after its start, and if Congress does not
approve of the military action, it can submit a resolution
expressing its disapproval.
My point is, submitting a disapproval resolution seems
unnecessary when Congress can simply practice its
constitutional rights and deny funding. So why is there a need
for this additional measure?
Mr. Christopher. Mr. Scott, Congress could certainly do
that, but we thought it was perhaps more propitious to require
first a resolution of disapproval, and then Congress can act
within its internal rules to deny funding the conflict.
Congress can deny funding at any point, but we thought from
the standpoint of public impression, it is a better approach to
have the Congress go ahead and exercise their power of
disapproval; hence, the American people would know that
Congress had not only failed to approve but they had
disapproved, and then you could move to denial of funding if
that was the will of Congress.
Mr. Hamilton. Appropriation bills often take a little time
to come before the Congress. This would require the Congress to
act rather quickly.
Chairman Berman. The time of the gentleman has expired. The
gentleman from Indiana, Mr. Burton. We are going to try and
take Mr. Burton and Ms. Lee, but I understand the witnesses
have to leave by 12:15. Am I correct in that assumption? You do
not want to come back and spend the afternoon with us?
Well, if that is the case then, unfortunately, we will have
to adjourn after our next two questions.
Mr. Burton. Mr. Chairman, I am going to just ask one
question because I know you want to get as many people involved
as possible.
This all boils down to, there is going to be consultation,
but as far as teeth are concerned, the only real teeth in this
is public opinion.
Mr. Baker. Right.
Mr. Burton. If the President is hell bent to go ahead with
a conflict, even though he has a strong disagreement with the
Congress, he is going to be able to do it. So the
constitutional authority he has is in no way impaired.
Mr. Baker. That is correct, Congressman. That is right.
Mr. Burton. Okay. That is all I wanted to know. I wanted to
make sure. Thank you.
Chairman Berman. The gentlelady from California.
Ms. Lee. Thank you very much, Mr. Chairman. Let me
reiterate again my belief and understanding that based on
Section 8, Article 1, the Congress has the authority to declare
war. I have been listening to what you have said with regard to
the constitutional issues, and that is not what this is about.
It is unfortunate that the Supreme Court has not ruled because
it almost makes this Constitution moot, but I still believe in
it.
So let me ask you how this would work if in fact, and I am
going to go dead to the resolution of September 14 that I could
not vote for, the Congress authorized the President to use
force. It was a blank check. It was a resolution that said
against any organization, individual or country connected to 9/
11 or that harbored those connected with 9/11. It was a total
blank check 3 days after the horrific events of 9/11.
How would this kick in? At this point, would this body in
this consultative process sit down and say, ``Mr. President,
what countries are you talking about?'' ``Mr. President, how
long will this resolution, the authority to use force, be in
effect?''
Would this body say, ``Mr. President, will this be in this
region only?'' ``Mr. President, would this allow for terror?''
``Mr. President, would this body be able to define these blank
checks that we have been given to the administration to use
force?, deg.'' Because I am concerned about this
resolution still being in play quite frankly.
Mr. Baker. No, Congresswoman, it would not, but the
Congress of course could come forward at any time it wants to
and limit the scope of that prior resolution.
Our proposed statute is forward looking. It does not have
application to anything that has happened before except to the
extent that something happens that it deg.meets the
definition of ``significant armed conflict.'' Then there would
be an obligation on the President for the ongoing consultations
that we call for.
Ms. Lee. So it is not retroactive at all.
Mr. Baker. No. It is forward looking.
Ms. Lee. Okay. But had your bill been the law on 9/14, how
would that have worked with the consultation process?
Mr. Baker. Well, assuming if it had been in law then, I
assume there would have been consultation as we call for here
between the President and the Congress, and if you would still
pass that same resolution, that resolution would be effective,
but the President would have to have continuing consultations
with you as it was implemented.
Ms. Lee. If the President wanted to use that resolution to
go into another country, any country, would the President have
to say, ``Okay, Congress. This is where we are going now,'' in
terms of the use of force and military action?
Mr. Hamilton. The President has to spell out the scope and
what he thinks the duration of the conflict may be.
Ms. Lee. And where?
Mr. Hamilton. I do not think we say ``where''; I think we
say ``scope and duration.'' It could be covered under ``scope''
I suppose.
I do want to comment, Ms. Lee. We have cited to it several
times today as if it is definitive that the power to declare
war resolves the constitutional question. It does in the mind
of a lot of people, but the other side of the argument is that
the ``Commander-in-Chief'' phrase resolves the question for
people on the other side of the issue, and they both take their
positions with equal intensity, and that is an argument that
has proceeded for over 200 years in this country.
Now, as the Secretary has testified, we said we just could
not solve this problem on the Commission. We wanted to find a
way to improve consultation when you are confronted with this
very question.
Ms. Lee. I understand that.
Mr. Hamilton. It is a very limited bill, and it does not
deal with this constitutional question.
Ms. Lee. I understand that. I am just saying, though, I am
trying to see how this would work----
Mr. Hamilton. Yes, I understand.
Ms. Lee [continuing]. Because, as a Member of Congress----
Mr. Hamilton. Right. I was responding to your earlier
comment about the declaration, which others have made here.
Quite frankly, I have a good bit of personal sympathy for that
having served in the legislative branch, but to suggest that
that sentence in the Constitution resolves the question is
short of the mark.
Ms. Lee. Thank you.
Mr. Baker. Mr. Chairman, may I just add? This bill,
Congresswoman, will not satisfy the absolutists on either side
of this issue, the congressionalists who think only the
Congress has the power or has the preeminent power, nor the
executive branch people who think the President should have
totally unlimited scope.
But the fact of the matter is that, over quite a number of
years, troops have been sent abroad 264 times; war has been
declared five times. So we are trying to deal with a situation
that we face and to increase the cooperation and consultation
between the two branches.
Chairman Berman. Are you measuring it against what you
believe or what the reality is? I guess that is the first
question one has to ask.
Mr. Baker. We are trying to deal with the reality, and we
are expressly saying, ``Look, we are trying to do it in a way
that does not diminish the ability of either branch to make
their constitutional arguments.''
Chairman Berman. We are now being called for four votes.
There is less than 5 minutes to make the vote. I understand
your time constraints.
I think it has been a fascinating hearing, and I am very
sorry that a number of my colleagues were not able to ask
questions, but I do not see, practically speaking, how we can
get back if you have to leave in 1/2 hour, because it will be
at least 12:30 before we will be able to get back. Am I
accurately describing the situation?
Mr. Christopher. We reluctantly agree, and we apologize for
not being able to be available later than that. I would like to
stay as long as the committee would want to ask questions, but
it does not seem possible.
Mr. Hamilton. Mr. Chairman, I cannot speak for the
Secretaries obviously, but there would be those of us on the
Commission I know that would be happy to return if some members
wanted to discuss this further.
We are deeply appreciative of the interest of the committee
in the proposal, and we want to make sure that we respond to
all questions that all members have. So, if it requires a
second hearing, I think we would be responsive.
Chairman Berman. I think either a second hearing, questions
that perhaps we submit in writing, or an informal discussion of
these issues at a future time will be the better course.
Mr. Baker. We would be delighted to do that, Mr. Chairman.
We have a lot of our Commission members who live up here in the
Washington area, and it would be easier for them to come, and I
know Chairman Hamilton would be pleased to. So, if that would
be your desire, it would be ours as well.
Chairman Berman. Good. We will get back in touch.
Ms. Jackson Lee. Mr. Chairman, if I could have an
opportunity for a privilege just to simply welcome my
constituent, who I claim to be my constituent, from Houston,
Texas, Mr. Baker, and to welcome all of those who are here and
to thank him for his presence here today.
I was looking forward to being able to question, so I am
going to hope he will come back. Thank you. I yield back.
Mr. Baker. Thanks a lot.
Ms. Jackson Lee. I thank him for his service.
Mr. Baker. Send it to us in writing, Congresswoman. We will
respond.
[Whereupon, at 11:43 a.m., the committee was adjourned.]
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