[Senate Hearing 111-255]
[From the U.S. Government Printing Office]
S. Hrg. 111-255
WAR POWERS IN THE 21ST CENTURY
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
APRIL 28, 2009
__________
Printed for the use of the Committee on Foreign Relations
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COMMITTEE ON FOREIGN RELATIONS
JOHN F. KERRY, Massachusetts, Chairman
CHRISTOPHER J. DODD, Connecticut RICHARD G. LUGAR, Indiana
RUSSELL D. FEINGOLD, Wisconsin Republican Leader designee
BARBARA BOXER, California BOB CORKER, Tennessee
ROBERT MENENDEZ, New Jersey JOHNNY ISAKSON, Georgia
BENJAMIN L. CARDIN, Maryland JAMES E. RISCH, Idaho
ROBERT P. CASEY, Jr., Pennsylvania JIM DeMINT, South Carolina
JIM WEBB, Virginia JOHN BARRASSO, Wyoming
JEANNE SHAHEEN, New Hampshire ROGER F. WICKER, Mississippi
EDWARD E. KAUFMAN, Delaware
KIRSTEN E. GILLIBRAND, New York
David McKean, Staff Director
Kenneth A. Myers, Jr., Republican Staff Director
(ii)
C O N T E N T S
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Page
Baker, Hon. James A., former Secretary of State, Houston, TX,
accompanied by Hon. Lee H. Hamilton, president and director,
Woodrow Wilson International Center, Washington, DC............ 4
Prepared statement of Mr. Baker.............................. 6
Response of Mr. Hamilton to question submitted for the record
by Senator Russell D. Feingold............................. 32
Christopher, Hon. Warren M., former Secretary of State, Los
Angeles, CA.................................................... 7
Prepared statement........................................... 9
Responses to questions submitted for the record by Senator
Russell D. Feingold........................................ 30
Kerry, Hon. John F., U.S. Senator from Massachusetts, opening
statement...................................................... 1
Lugar, Hon. Richard G., U.S. Senator from Indiana, opening
statement...................................................... 2
Appendix
National War Powers Commission Report............................ 33
(iii)
WAR POWERS IN THE 21ST CENTURY
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TUESDAY, APRIL 28, 2009
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The committee met, pursuant to notice, at 10:05 a.m., in
room SD-419, Dirksen Senate Office Building, Hon. John F. Kerry
(chairman of the committee) presiding.
Present: Senators Kerry, Feingold, Kaufman, Lugar, Corker,
and Barrasso.
OPENING STATEMENT OF HON. JOHN F. KERRY,
U.S. SENATOR FROM MASSACHUSETTS
The Chairman. The hearing will come to order.
Today we have the privilege of hosting three of our
Nation's most distinguished statesmen, and they are here to
discuss one of the most vital questions that comes before our
democracy, the question of how America goes to war.
Secretaries Baker and Christopher and Chairman Hamilton,
we're very grateful to you for joining us today, and we're very
grateful to you for the work you've put into trying to find a
practical solution to this complex problem that has dogged us
for decades now. Your experience in government and your
firsthand knowledge of this issue and its application make your
testimony before this committee today particularly valuable. We
look forward very much to hearing your views.
Let me just share a couple of quick thoughts. We all
understand that what brings us here is the fact that there's a
fundamental tension in the way that America decides to go to
war. The President is Commander in Chief of the Armed Forces,
while Congress has the power to declare war. But, how those
constitutional powers interact has been the subject of
considerable debate these last years.
Uncertainty over Congress's role in two successive wars--
Korea and then Vietnam--led to the passage of the War Powers
Resolution in 1973. I think it's fair to say it was
significantly a reaction to America's longest war, one that
pulled the country apart and left many questions about
responsibilities and Presidential decisions.
The resolution, which today's witnesses recommend
repealing, has been controversial ever since it was enacted
over President Nixon's veto. The 1973 resolution represented
Congress's best effort to try to clarify and make concrete its
role in the decision to go to war. That resolution required
that the President consult with Congress prior to, and on a
regular basis after, U.S. forces were deployed. More
controversially, the law required that the President withdraw
our forces within 60 days of their deployment into combat,
absent specific congressional authorization or an extension of
the deadline by Congress.
This approach raised important questions. Some believe that
imposition of a deadline for withdrawal inappropriately
constrained the Executive and projected uncertainty to enemies.
Others more sympathetic to legislative power in the
decisionmaking argued that allowing the President to go to war
for 60 days or longer without authorization is an indefensible
abdication of Congress's prerogative under the Constitution; a
prerogative of Congress to declare war.
What is clear to all is that the 1973 War Powers Resolution
has simply not functioned as intended. Presidents since Nixon
have questioned the statute's constitutionality. None have
complied by filing a report that would trigger a 60-day
deadline for congressional reauthorization.
Over the years, there have been various efforts within
Congress, including by this committee, to amend the War Powers
Resolution. Nonetheless, the fundamental issue has remained
unresolved.
The National War Powers Commission consciously avoided
trying to resolve the basic constitutional debate, and also
avoided trying to define the contours of each branch's powers.
And I must say, I respect the pragmatism of that approach.
The Commission's proposal is, instead, the War Powers
Consultation Act of 2009. It would repeal the 1973 War Powers
Resolution and provide a new framework for interaction between
Congress and the President. The proposed statute would require
that the President consult with a newly formed Joint
Congressional Committee prior to ordering the deployment of
U.S. Armed Forces into, ``significant armed conflict'' or,
under certain circumstances, within 3 days of deployment. The
statute would also create a mechanism to ensure that both
Houses of Congress vote on a particular military action within
30 days of that deployment.
In their work on this issue, our witnesses today have
struggled to grapple with the exigencies of a global struggle
against terrorism and the changing nature of America's military
involvements, which today obviously look very different than
they did in 1973. As one would expect of an effort from a group
of statesmen who have tackled some of the world's most
intractable conflicts, this is a thoughtful and a formidable
effort, and it is very much worthy of this committee's further,
and the Congress's further, consideration.
I'm sure that our witnesses will go into more detail and
specifics of their proposal, but, again, let me just thank each
of them for their contribution, not just to this particular
work, but to our country's work throughout their public
service.
And it's my pleasure to turn to the ranking member, Senator
Lugar.
OPENING STATEMENT OF HON. RICHARD G. LUGAR,
U.S. SENATOR FROM INDIANA
Senator Lugar. Well, thank you very much, Mr. Chairman.
As you mentioned, the committee meets today to discuss
important questions about the respective roles of the President
and the Congress in decisions to use force. And we're really
very fortunate to have very dear friends with us today,
Secretary of State Jim Baker and Warren Christopher, and my
colleague in the Indiana delegation for so many years,
Congressman Lee Hamilton. Each of them has unique insights into
these issues, both from experience in government, and from
their study as members of the National War Powers Commission.
We welcome them to the committee and look forward to their
testimony.
Sending members of the United States military into harm's
way is perhaps the most significant decision our Government can
make. We know from long experience that a military mission is
more likely to be successful if it is broadly supported by the
American people. Joint actions by the President and the
Congress in authorizing the use of force can play an important
role in building and expressing such support. In addition, both
allies and enemies will be more convinced of the determination
of the United States to achieve its objectives for which the
force is being used if those objectives are understood to be
broadly supported by both branches.
Under our Constitution, decisions about the use of force
involve the shared responsibilities of the President and the
Congress, and our system works best when the two branches work
cooperatively in reaching such decisions. While this is an
ideal toward which the President and Congress may strive, it
has sometimes proved to be very hard to achieve in practice.
Today's hearing gives us an opportunity to consider the
framework in which decisions about the use of force are made,
and whether there are ways in which it might be improved.
Questions of how best to harmonize the roles of the President
and the Congress on the use of force have proved vexing since
the founding of the Republic. The Framers of the U.S.
Constitution designated the President as Commander in Chief of
the Armed Forces, but entrusted to the Congress the authority
to declare war.
In the period following the Vietnam war, the Congress
passed the 1973 War Powers Resolution in an effort to
regularize Executive/congressional cooperation on the use-of-
force decisions, and, in particular, to ensure an appropriate
role of the Congress in such matters. It provides requirements
for Presidential consultation with, and reporting to, the
Congress on issues related to the use of force, and a
requirement that the President terminate uses of armed force
not specifically authorized by the Congress within the
timeframe specified by the resolution.
The War Powers Resolution has not proven to be a panacea,
and Presidents have not always consulted formally with the
Congress before reaching decisions to introduce U.S. force into
hostilities, and may have objected to the assertion that
inaction by Congress can compel the termination of a military
action initiated by the President. The Congress has not always
taken up legislation authorizing or expressing disapproval of
Presidential uses of force. Both Presidents and Members of
Congress have voiced dissatisfaction with the resolution's
operation and practice.
Interaction between the President and the Congress related
to the War Powers Resolution has also been affected by inherent
ambiguities. In today's world, many potential military actions
are very small scale, having a very limited purpose or target
terrorists or other nonstate combatants. The recent rescue
operation mounted against the Somali pirates is an example, and
combined all three of these conditions. Does every movement of
the military ordered by the Commander in Chief that might lead
to some use of force require congressional consultations?
Ambiguity also exists about what constitutes adequate
notification and consultation. On April 14, 1986, for example,
I was called to the White House at 4 p.m. along with other
Senate and House leaders. We were informed that, 2 hours
earlier, United States warplanes had taken off from airbases in
the United Kingdom headed for targets in Libya. They were due
to strike that country at about 7 p.m. During the ensuing 2\1/
2\-hour meeting, we received a full briefing and engaged in a
detailed conversation with President Reagan and national
security officials on the bombing operation and its
implications. In my judgment, this meeting constituted
acceptable consultation, given the need for secrecy and the
possibility that the planes could have turned around had the
President encountered strong opposition from the group
assembled. But, some commentators believed the meeting fell
well short of the requirements for full congressional
consultation.
The report of the National War Powers Commission proposes a
new statute to replace the War Powers Resolution. Under the
proposed statute, the President would be required to consult
with a newly created Joint Congressional Consultation
Committee, in most cases before ordering the deployment of
United States Armed Forces into significant armed conflict. The
statute would also require both Chambers of Congress to hold a
timely up-or-down vote regarding any significant armed conflict
in which the President introduces U.S. forces. The proposed
statute further provides for the President to consult with, and
report to, the Congress regularly during the course of
significant armed conflicts in which the United States forces
are engaged.
We look forward the testimony of our witnesses about the
issues which the Commission has grappled with in formulating
this proposal, and ways in which they believe their proposed
approach would improve collaboration between the President and
Congress on decisions relating to the use of force.
I thank the chairman again for calling the hearing. I look
forward to our discussion.
The Chairman. Thank you very much, Senator Lugar.
Again, we welcome you. None of you are strangers to this
room or this table. I must say, looking out at you, I was
looking at you and remarking that none of you seem to have
changed. And I'm not sure if you think that, but certainly from
this side of the dais, whatever you're imbibing down there in
Texas, California, and elsewhere, seems to sit well.
Mr. Secretary Baker, do you want to lead off.
STATEMENT OF HON. JAMES A. BAKER, FORMER SECRETARY OF STATE,
HOUSTON, TX, ACCOMPANIED BY HON. LEE H. HAMILTON, PRESIDENT AND
DIRECTOR, WOODROW WILSON INTERNATIONAL CENTER, WASHINGTON, DC
Mr. Baker. Mr. Chairman, thank you very much.
The Chairman. Thank you.
Mr. Baker. We are very appreciative of the committee
entertaining this hearing today.
The Chairman. Your microphone? Could you just press the
button?
Mr. Baker. First, we thank you for holding this hearing. We
thank Ranking Member Lugar for holding this hearing, members of
the committee. It really is a privilege and an honor for us to
be back in this room and to be before you.
As you have quite accurately pointed out, we're here to
discuss the report of the National War Powers Commission, which
Secretary Christopher and I cochaired, and on which your former
congressional colleague Lee Hamilton served so very ably as a
valuable member.
Let me, if I might, start with a little background on the
Commission and the problem that you have quite accurately
pointed out that it deals with, and then Secretary Christopher
will outline our proposed new statute.
Two years or so ago, Chris and I were approached by the
Miller Center at the University of Virginia to cochair an
independent bipartisan commission to consider this issue that
has bedeviled the legal experts and government officials since
the Constitution was framed--the question of how our Nation
makes the decision to go to war. Of course, we all know the
Constitution gives the President the powers of Commander in
Chief, and it gives the Congress the power of the purse, but
also specifically the power to declare war. History, though,
indicates that Presidents and Congresses have often disagreed
about the scope and extent of their respective roles in the
decision to go to war. And the Supreme Court has consistently
shied away from settling the constitutional issue.
So, it was evident to us after a few meetings of our
Commission that what we really needed to try and come up with
was a pragmatic and practical solution to this conundrum. As we
put together the Commission, it was important, we thought, that
we have a very wide range of perspectives and voices, both
political and from a policy standpoint. And so, our Commission
includes legal experts, former congressional staffers, former
White House staffers, and former military leaders. The 12-
member Commission, if you look on--I think you all have a copy
of our report--at the names on the front page there, the 12-
member Commission is equal parts Democrats and Republicans.
After 14 months of study, we concluded, as you stated, Mr.
Chairman, that the central law governing this critical
decision--that is, the War Powers Resolution of 1973, which was
passed over a Presidential veto--is ineffective and that it
really should be replaced with a better law. It should be
repealed and replaced with a better law.
The 1973 resolution's greatest fault, I suppose, is that
most legal experts will tell you that it is unconstitutional,
although I'm quick to add that the Supreme Court has never
expressly ruled on that point.
We happen to believe that the rule of law, which is, of
course, a centerpiece of our American democracy, is undermined
and it is damaged when the main statute in this vital policy
area is regularly questioned or ignored.
The resolution has other problems. It calls for the
President to file reports of armed conflicts, and then it uses
these filings to trigger an obligation for the President to
remove troops within 50--within, sorry, 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, no President,
Democrat or Republican, has ever filed reports in a way that
would trigger the obligation to withdraw forces. As a result,
the 1973 statute has been honored more in the breach than by
its observance.
Recognizing this, others have suggested amending or
replacing the flawed law, but no such proposal has ever gotten
very far, typically because most of them have sided too heavily
with either the President or the Congress.
A common theme, however, in all of these proposals and that
runs through them, the importance of meaningful consultation--
meaningful consultation--between the President and the Congress
before the Nation is committed to war.
Our proposed statute would do exactly that, promote
meaningful discussion between the President and Congress when
America's sons and daughters are to be sent into harm's way,
but it expressly does so, Mr. Chairman, in a way that does not
limit or prejudice either the executive or the legislative
branches' rights or ability to assert their respective
constitutional war powers. Neither branch is prejudiced by what
we are proposing. And, in fact, we think that both branches and
the American people will benefit from it.
Now, before I turn the microphone over to Secretary
Christopher, let me first say how rewarding it has been to work
with this fine gentleman and this able statesman and this
dedicated public servant. It has, of course, been equally
rewarding to once again be working with my former cochairman on
the Iraq Study Group, Lee Hamilton, and your former colleague
up here in the Congress.
So, Chris, you want to pick up from there?
[The prepared statement of Mr. Baker follows:]
Prepared Statement of James A. Baker III, Former Secretary of State,
Houston, TX
Chairman Kerry, Ranking Member Lugar, members of the committee, it
is an honor to be with you today.
We are here to discuss the report of the National War Powers
Commission, which Chris and I cochaired and on which your former
congressional colleague, Lee Hamilton, served as a very valuable
member.
Let me start with background on the Commission and the problem it
dealt with. Secretary Christopher will then outline our proposed new
law.
Two years ago, Chris and I were approached by the Miller Center at
the University of Virginia to cochair an independent bipartisan
commission to consider an issue that has bedeviled legal experts and
government officials since the Constitution was framed--the question of
how our Nation makes the decision to go to war.
Our Constitution gives the President the powers of Commander and
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.
It was evident that we needed a practical solution to this
conundrum.
As we put together the Commission, it was important that we 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. The 12-member Commission is equal
parts Democrats and Republicans.
After 14 months of study, we concluded that the central law
governing this critical decision, the War Powers Resolution of 1973, is
ineffective, and should be repealed and replaced with better law.
The 1973 resolution's greatest fault is that most legal experts
consider it unconstitutional, although the Supreme Court has never
ruled on it. We believe that the rule of law, a centerpiece of American
democracy, is undermined and damaged when the main statute in this
vital policy area is regularly questioned or ignored.
The resolution has other problems. It calls for the President to
file reports of armed conflicts and then uses these filings to trigger
an obligation for the President to remove troops within 60 or 90 days
if Congress has not affirmatively approved the military action. This
purports to allow Congress to halt military campaigns by inaction.
Unsurprisingly, no President--Democrat or Republican--has filed
reports in a way that would trigger the obligation to withdraw. As a
result, the 1973 statute has been honored more in the breach than by
observance.
Recognizing this, others have suggested amending or replacing the
flawed law. But no such proposal has gotten very far, typically because
most of them have sided too heavily with either the President or
Congress.
A common theme, however, runs through all of these efforts: The
importance of meaningful consultation between the President and
Congress before the Nation is committed to war.
Our proposed statute would do exactly that--promote meaningful
discussion between the President and Congress when America's sons and
daughters are to be sent into harm's way.
But it expressly does so in a way that does not limit or prejudice
either the executive or legislative branches' rights or ability to
assert their respective constitutional war powers. Neither branch is
prejudiced by what we are proposing.
And in fact, we think both branches and the American people will
benefit from it.
Before I turn the microphone over the Secretary Christopher, let me
first say how rewarding it has been to work with this fine gentleman,
able statesman, and dedicated public servant.
STATEMENT OF HON. WARREN M. CHRISTOPHER, FORMER SECRETARY OF
STATE, LOS ANGELES, CA
Mr. Christopher. Thank you very much, Mr. Chairman, ranking
member, members of the committee.
My testimony will follow up briefly on Secretary Baker's
statement. I appreciate those kind things that Secretary Baker
had to say about me. Without going on about it, let me just say
it's a lot more pleasant working with Secretary Baker than it
was working against him, and I've had both experiences.
The statute that we propose is really quite
straightforward. It establishes a joint bipartisan
congressional consultation committee consisting of the leaders
of the House and the Senate and the chairs of the relevant
committees--including this committee, Intelligence, Armed
Forces.
Under the proposed statute, the committee is provided with
a permanent professional staff and access to relevant
intelligence information. This is a new provision, and, I
think, one that's quite salutary.
The statute requires that the President consult with this
committee before deploying U.S. troops into ``any significant
armed conflict,'' which is defined as combat operations
lasting, or expected to last, more than a week. Now, for
purposes of this statute, ``consultation'' means providing an
opportunity for a timely exchange of views, not just
notification.
Within 30 days after the armed conflict begins, Congress is
required to vote up or down on a Resolution of Approval. If the
Resolution of Approval is defeated, any Senator or
Representative may file a Resolution of Disapproval. A
Resolution of Disapproval would have the force of law, of
course, only if it's presented to the President and signed by
him, or if it's passed over the President's veto. However, if a
Resolution of Disapproval does not survive the veto, Congress
can express its opposition through internal rules.
Mr. Chairman, I recognize that many of the advocates of
congressional power argue that Article I, Section 8 of the
Constitution puts the decision to go to war exclusively in the
hands of Congress by giving Congress the power to declare war.
On the other hand, opponents of the Presidential authority
point to the fact that the President is the Commander in Chief
under 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 information and the ability to
execute.
Although both sides of this longstanding argument have good
points to make, I would just make three points about these
arguments.
First, no consensus has emerged from this debate over the
last 200 years. Nobody has won this longstanding argument.
Second, I think it's become fairly clear that only a
constitutional amendment or a decisive Supreme Court opinion is
likely to resolve this debate, and neither of these is likely
to be forthcoming anytime soon. The courts have turned down war
powers cases filed by more than 100 Members of Congress, either
on the grounds that they are political questions or that the
plaintiffs in those actions lacked standing to sue.
Third, whatever our Commission might have felt about this
debate--and we discussed it for a long time, as Secretary Baker
said--we recognize that we could not resolve this longstanding
issue. And the last thing we wanted to do as a commission was
to file yet another report on who is right or wrong, and have
it gather dust on the library shelves.
Therefore, in drafting this statute, our Commission decided
deliberately not to try to resolve this longstanding debate.
Indeed, our proposed statute says that neither branch, by
supporting or complying with this act, shall in any way limit
or prejudice its right or ability to assert its constitutional
war powers.
Instead of trying to call balls or strikes, we unanimously
agree that any legislative reform must focus on practical steps
to ensure that the President and the Congress consult in a
meaningful way before going to war. We believe that, among all
the various alternatives--and we certainly talked about a lot
of them--this proposed statute best ensures consultation. We
believe it's a significant improvement over the 1973
resolution, and it's good for the President, the Congress, and
for the American people.
Now, from the standpoint of the Congress, the statute gives
it a much more significant seat at the table when our Nation is
deciding whether or not to go to war, provides not only a seat
at the table, but it gives a permanent staff to the committee
and access to all relevant intelligence information. It
requires real consultation, not just lipservice.
Now, in my experience, the seasoned views of the
congressional leaders constitute a very vital resource for the
President in his decisionmaking process. Indeed, it's very
healthy, I think, for the President to hear the independent
opinions of people who don't work for the President. I know how
confining it is when the President only talks to people who
happen to work for him.
For the President, of course, this law that we're proposing
eliminates a law that every President since 1973 has found to
be unconstitutional and has largely ignored. The statute
provides a mechanism for consultation with the Congress, and it
identifies a leadership group with whom the President should
consult.
I know, down in the White House, they have often had a
question as to who the President should consult with. Sometimes
I think the President has consulted with those who are most
likely to agree with him, and we think that's probably not a
healthy situation.
From the standpoint of the American people, the statute
will really enhance the prospect of consultation between
Congress and the President on matters of war, and make it a
regular thing. This is something that public opinion polls have
consistently indicated, for more than 70 years, the American
people have wanted. We really believe the American people
deserve something better than a law that's ineffective and has
been largely ignored for 70 years.
Mr. Chairman, Mr. Ranking Member, and Senators, thank you
very much for hearing us, and we look forward to trying to
respond to any questions that you may have.
[The prepared statement of Mr. Christopher follows:]
Prepared Statement of Warren Christopher, Former Secretary of State,
Los Angeles, CA
Mr. Chairman, Ranking Member, and members of the committee, my
testimony will follow up briefly on Secretary Baker's statement.
Without going on about it, let me just say that it is a lot more
fun working with Secretary Baker than working against him. He is an
extraordinary American leader.
The statute we propose is straight forward. It establishes a
bipartisan Joint Congressional Consultation Committee consisting of the
leaders of the House and the 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.
The statute requires the President to consult with the
Congressional Consultation Committee before deploying U.S. troops into
any significant armed conflict, which is defined as combat operations
lasting or expected to last more than a week. If the need for secrecy
precludes prior consultation, the President is required to consult with
the committee within 3 days after the conflict begins. For purposes of
the statute, consulting means providing an opportunity for a timely
exchange of views, and not mere notification.
Within 30 days after the armed conflict begins, Congress is
required to vote up or down on a resolution of approval. If the
resolution of approval is defeated, any Senator or Representative may
file a resolution of disapproval. A resolution of disapproval will have
the force of law only if it is passed by both Houses and signed by the
President, or if the President's veto is overridden. However, if the
resolution of disapproval has not survived the President's veto,
Congress can express its opposition through its internal rules.
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 exclusively or primarily in the hands of Congress
by giving Congress the power to declare war. They say that by this
provision, the Framers of the Constitution stripped the executive
branch of the power to commence war that the English King enjoyed.
On the other hand, proponents of Presidential authority point to
the Executive power and Commander in Chief clauses in 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 information and
the ability to execute; and they point to recent history as proof of
the President's predominance.
A whole forest of trees has been felled to publish writings on this
debate. Although both sides make compelling arguments, only three
propositions hold true:
(1) No consensus has emerged from the debate in 200 years; no
one has ``won'' the argument.
(2) Only a constitutional amendment or decisive Supreme Court
opinion will resolve the debate; neither is likely forthcoming
anytime soon, and courts have turned down war powers cases
filed by as many as 100 Members of Congress.
(3) Despite what I or my fellow commission members may feel
about the debate, we cannot resolve it, and the last thing we
wanted to do was offer yet another opinion on who was right or
wrong.
Thus, in drafting the statute before you, our Commission
deliberately decided not to try to resolve the debate. Indeed, our
proposed statute says ``neither branch by supporting or complying with
this act shall in any way limit or prejudice its right or ability to
assert its constitutional war powers, or its right or ability to
question or challenge the constitutional war powers of the other
branch.''
Instead of trying to call balls or strikes, we unanimously agreed
that any legislative reform must focus on practical steps to insure
that the President and Congress consult in a meaningful way on the
decision to go to war. We believe that, among all available, practical
alternatives, the proposed statute best accomplishes that result, is a
significant improvement over the 1973 resolution, and is good for the
Congress, the President, and the American people.
From the standpoint of Congress, the statute gives a more
significant seat at the table when our Nation is deciding whether or
not to go to war. It provides not only a seat at the table, but a
permanent staff and access to all relevant intelligence information. It
calls for genuine consultation, not mere lip service. The seasoned
views of congressional leaders constitute a vital resource for the
President in his decisionmaking process. It is very healthy for the
President to hear the independent opinions of people who don't work for
him.
For the President, the proposal eliminates a law that every
President since 1973 has regarded as unconstitutional. It provides a
mechanism for his consultation with the Congress, and it identifies the
leadership group with whom he should consult.
From the standpoint of the American people, this statute will
enhance the prospect of cooperation between the Congress and the
President on matters of war. This is something that public opinion
polls have consistently indicated Americans have wanted for the past 70
years.
The American people deserve something better than a law that is
ineffective and has been largely ignored for 70 years. The new statute
achieves that result.
Mr. Chairman, we have sought to set a careful balance between the
Congress and the President on this matter of grave importance. Neither
the strongest advocates of congressional power nor those of
Presidential power are likely to be completely happy with our proposal,
but we think that this is a reflection of the balance that we have
sought to strike.
The Chairman. Thank you very much, Mr. Secretary.
Mr. Chairman, I understand you're not going to make a
statement, is that correct?
Mr. Hamilton. No.
The Chairman. OK, but submit to questions?
Well, let me thank each of you for this. Let me emphasize,
if I can, how important this is. I think my colleagues here
understand that, while the Nation's attention is not focused on
this issue today, and while the Klieg lights and the sort of
hot breath of the media is not intense here at this moment,
everybody in this room, particularly those at this table,
understand the implications and how important it is to be here
now, trying to figure out the best path through this, rather
than in the middle of the crisis, when all the attention is
focused on it, but when you have the least ability to be able
to do something about it.
So, this is the moment, and I want to thank each of the
participants. I also want to thank Governor Baliles and the
Miller Center for their support of this project. It's a very
important contribution to our Nation's discourse. And, without
objection, I intend to put the entire War Powers Commission
Report into the record, because I think this is a record that's
going to be studied and analyzed as we go forward, and we want
to lay the predicate for our thinking and for whatever legal
proceeding might one day occur as a consequence of this. So, we
are laying a record with respect to all of that at this time.
[Editor's note.--The War Powers Commission Report can be found
in the Appendix on page 33 at the end of this hearing.]
The Chairman. In your proposal, you set out types of
operations that are specifically excluded; three, in
particular: Actions taken to repel attacks, or prevent imminent
attacks on the United States; two, limited acts of reprisal
against terrorists or states that sponsor terrorism; and three,
missions to protect or rescue American citizens and military or
diplomatic personnel.
Now, many of our operations today--military operations--are
focused on our counterterrorism efforts, and I'd just like to
try to clarify, if we can, a little bit, sort of, what your
thinking is here.
Under what circumstance do you envision these exceptions
allowing a President to order military strikes against state
sponsors of terrorism without any consultation with Congress?
Do you envision that? For instance, there are certain states
engaged in proliferation activities today; one might envision
some sort of counterterrorism preemptive effort with respect to
them, and I wonder if you'd comment on that.
Mr. Baker. Thank you, Mr. Chairman.
The exclusions or exceptions that are listed--and you noted
three of them; there are some others--operate--the President
would be free to undertake those types of actions without prior
consultation, without satisfying the requirements of our
proposed statute. But, once those actions ripened into a
significant armed conflict--that is, once those actions
extended for more than 7 days--the statute would be triggered,
there would have to be consultations and then continuing
consultations, as the statute requires.
The Chairman. So, is ``significant armed conflict'' defined
by the amount of time or by the size and scope of the
operation?
Mr. Baker. It's defined by the--it requires combat
operations, and it requires the expiration of 7 days. So, I
think I would say the amount of time. But, it is not just 7
days during which combat operations are taking place. If the
President knows, or has reason to believe, that a particular
operation will last more than 7 days, the statute is triggered.
Now, that's difficult, of course, because you can't always get
inside a President's head. But, it's more, really, the time,
but there is a requirement that the operations be combat
operations as opposed to just preparations therefore.
Mr. Hamilton. Mr. Chairman----
Mr. Chairman. Lee.
Mr. Hamilton. Mr. Chairman, you want to contrast that with
the War Powers Resolution, which uses the term ``hostilities''
and is very inadequately defined. Definitions, of course, are
extremely difficult in this area, and we didn't want to
overdefine terms. We think we've struck the right balance here,
but obviously that's our judgment.
The Chairman. Can you--and you are correct, Mr. Secretary,
I--those are several--those are three of a number of
exclusions, and I don't want to make it sound like those were
exclusive. But, the President has to consult with the Joint
Committee prior to the conflict unless there's a need for
secrecy or other emergent circumstances precluding that. Can
you give us a sense of what the--what would qualify as
``emergent circumstances'' that would relieve the President of
the duty for predeployment consultation?
Mr. Baker. Well, I think the ranking member gave us a good
example of one, the air strike on Libya, where secrecy was
critical. There would be others--that's a separate provision,
Mr. Chairman, of course, from the exclusion provision and
exemption provision. There is one separate provision--I think
it's 4(c)--that says, if there is a need for secrecy to protect
the lives, for instance, of American servicemen, then the
President can begin his consultation 3 days after ordering or
beginning the operation. That's a separate provision, of
course.
Under the ones that you initially read off, the general
exclusions and exemptions, those are--there would be no
requirement to consult there before those actions were
undertaken, but, once they had gone on for 7 days, then there
would be an obligation to consult. A good example might be,
from your experience, training operations, perhaps, in Vietnam
that ripened into something a heck of a lot more than training
operations. If those training operations ripened into combat
operations that extended for more than 7 days, the statute
would be triggered.
The Chairman. So, does the consultation component of this
depend on the good faith of the President, or is there any kind
of guillotine, is there any sort of----
Mr. Baker. To some extent, when you're talking about
requiring more meaningful consultation, there has to be good
faith, and it depends upon good faith, I think, on the part of
the President, but also on the part of the Congress, the people
being consulted.
I would make the point, Senator Kerry, that many people
would argue that the President could do, anyway, some of the
things that are listed in here as exemptions; that is, take
actions to protect American possessions or embassies or
citizens abroad. I think a lot of people would argue whether
the President has that right anyway. Under our statute, he
would have that right, but he--but, it wouldn't extend ad
infinitum. He could--if he took action to protect an embassy or
American citizen abroad, and it ripened into a combat event
that lasted more than 7 days, then the statute's triggered and
there would have to be ongoing consultation.
Mr. Hamilton. And the important thing there is that the
President must consult in that situation. He doesn't have an
option. If he's going to commit troops for a significant armed
conflict, he shall consult, which is----
Mr. Baker. But, not obtain approval. No requirement in here
for approval, but there's a mandatory requirement of
consultation.
The Chairman. Right, but there is, then, a mandatory
requirement for a vote within 30 days----
Mr. Baker. That's correct.
Mr. Hamilton. Correct.
The Chairman. So you are triggering a requirement for
Congress to engage, which has been significantly absent with
respect to war powers. I mean, you know, it seems to me that
the constitutional mandate, ``Congress shall declare war,''
does not require Congress to declare war.
Mr. Baker. No.
The Chairman. It simply gives them the power to declare
war, if they choose to do so. Correct?
Mr. Baker. That's correct.
The Chairman. And, in effect, Congress has complicated this
significantly, not the least of which, for instance, in the
longest war in our history, Vietnam, where they refused to ever
step up and either do the purse or make the declaration.
Mr. Baker. That's correct, sir. And we think, in something
as important and serious as this, and particularly given the
fact that the polls over the last 50-plus years have showed
that the American people really want both the Congress and the
President involved when the Nation sends its young men and
women into battle, we don't think it's unreasonable to say
Congress, after 30 days, should take a position on the issue.
Now, if a vote--if a Resolution of Approval does not pass,
our statute provides that any Member of the House or Senate
could introduce a Resolution of Disapproval. If that Resolution
of Disapproval passes, it would not have the force of law
unless the constitutional requirement of the presentment clause
was met and it was presented to the President for his signature
or veto. If he vetoed it and Congress overrode the veto, then,
of course, you would have an actionable event of disapproval.
The Chairman. All of which, in total, I believe, actually--
and this is what I think is very significant about your
proposal and one of the reasons why I think it threads the
needle very skillfully--is that you actually wind up
simultaneously affording the President the discretion, as
Commander in Chief, and the ability to be able to make an
emergency decision to protect the country, but you also wind up
empowering Congress. And, in fact, subtly, or perhaps not so
subtly, asking Congress to do its duty. I think that's not
insignificant at all, and I think you've found a very skillful
way of balancing those without even resolving the other issues
that have previously been so critical, in terms of the larger
constitutional authority, one way or the other.
Mr. Baker. Thank you, sir.
The Chairman. So, I----
Mr. Baker. May I just make one final----
The Chairman. Absolutely.
Mr. Baker. [continuing]. One other statement? I don't mean
to be doing all the talking, here.
We think, as Chairman Hamilton said, I think, over on the
House side, this proposal presents an outstanding opportunity
for bipartisanship. We talk a lot about bipartisanship these
days. Here's a really good example of an opportunity to achieve
that.
The disagreements in this area have been disagreements
between the branches, not so much disagreements between the
parties. And this is something that is--it's practical, it
preserves the ability of each branch to continue to make their
constitutional arguments, but gives us a pragmatic and
practical way of going forward, and it should not be a matter
of partisan political difference.
The Chairman. I couldn't agree more.
Senator Lugar.
Senator Lugar. Well, thank you, Mr. Chairman.
In my opening comments, I mentioned this date of April 14,
1986, because it framed several of the issues that we're
discussing today. It was a pragmatic judgment by President
Reagan to call this group together, which looks very much like
the sort of group that you're suggesting. They--I think it
encompassed the chairmen and ranking members of Foreign
Relations and Intelligence, and that was--and Armed Services--
and that was true of House Members. They may not all have been
there. But, I put the thing into my statement, because I have a
picture of us sitting around the table. This is not anecdotal,
there's sort of documentary evidence of who was at the meeting.
And it was a rather awesome experience to hear the
President, and then he turns to the Secretary of Defense,
describing the fact that there are aircraft in the air and they
are taking action because some European countries at the time
were making it difficult to fly over on a mission of this
variety, so it was taking them a while to get there, and that's
why the 3-hour lapse.
And also, it was interesting that there was enough anxiety
or difference of opinion that the conversation went on for 2\1/
2\ hours, during which you have the sense that these planes are
approaching.
I remember coming back to my office and hearing, sort of
breaking into the 7 o'clock newscast, the thought that aircraft
were bombing Libya. And I said, ``Well, that's right. That's
what's happened.''
Now, in this particular instance, however, there was this
degree of consultation and responsibility. None of us knew what
Libya would do, what kind of retaliation and what the
aftereffects might be. As it turned out, there are not
immediate ones, so the 7-day rule, or the 30-day rule, probably
would not have kicked in, which was sort of a mission-
accomplished at that point.
But, the thing I want to raise is, Libya was a nation-
state. The attack really was on areas very close to the
President--or the Great Leader of the country, and, in fact,
some of his relatives were killed, as I recall, in the process.
The problems that we have talked about in this committee
recently revolve around such thoughts as al-Qaeda might be not
only in the mountains of Pakistan, but in Somalia or in Yemen
or, as we have found out in attacks on our embassies before.
Now, one of the values of this, as I've thought through
this, is that this Joint Committee possibly might meet with
some regularity, as opposed to just simply on the occasion of a
Libya situation in which the President or those responsible
could say, ``Now, this is very confidential, but, in fact, a
war on terror is being fought in several fronts. There's a
conspicuous one out in Afghanistan and Pakistan, and we talk
about that every day, because it's very important, but what all
of you folks in Congress need to understand is that our
intelligence services are very good, they've ferreted out where
al-Qaeda may be. These people are fully as capable of launching
or planning an attack on the United States as the people were
in camps in Afghanistan earlier. And therefore, they might say,
``We're going to take action,'' or they might describe
continuous action they are taking, in which various members of
al-Qaeda may be losing their lives or losing something in the
process. And the ramifications of that are not really clear in
the host country, which may be a failed state, This doesn't
negate the fact we may deal with nation-state war in the
future, but many would describe the more probable course in the
war on terror as dealing with, if not al-Qaeda, other cells
that are a threat to ourselves, our allies, to world stability,
a much more difficult thing, perhaps, to define. And this is
why I find attractive the idea of this committee.
Now, the dilemma, I think, for Chairman Kerry and--as
chairman of this committee, for example, would be, well, this
new committee has staff, and it has some jurisdiction on some
of the most difficult issues. How does that work out with the
staff of our committee, bipartisan staff that works all the
time on these issues, or Armed Services or Intelligence? You
know, you may say, ``Well, that's for you folks to work out.
You have--you're going to be serving as chairman or ranking
member on both of these committees, and you already have
certain staff members on your own staff, quite apart from the
committee, and so forth.'' I'm just curious, did you have any
discussion in your group about, as a practical matter, how this
works out with regard to committee staff, who has jurisdiction,
where--which committee do we really discuss this? Do we take it
up in the joint meetings, regularly with the President, or so
forth, or--is our responsibility really to our entire
committee, to a certain degree of public hearing, so that we're
all up to date on this? Do you have any feeling about these
internal workings of how this might work?
Mr. Christopher. Senator Lugar, our Commission talked quite
a lot about the new forms of war and nonstate actors. We had a
number of witnesses--I think almost 50 witnesses--among them,
Dean Harold Koh, who I understand you'll be hearing this
afternoon in his nomination. And we understood that, and one of
the reasons we put in section 4(a) of the statute was to meet
that exact problem. We say, ``The President is encouraged to
consult regularly with the Joint Congressional Consultation
Committee regarding significant matters of foreign policy and
national security.''
So, we certainly don't mean to preempt the jurisdiction of
this committee or other committees, but I think this new
committee would become the major forum for consultation on
issues of war and peace, and that's why we have given this
committee a separate professional staff, an ongoing
professional staff that can be very useful in the future, as
well as access to all relevant intelligence.
Sometimes, it seemed to me that Congress did not have as
fully adequate access to information as sometimes they have
down in the White House. So, I think we understood that very
well, and we understood that these committees would continue to
have their jurisdiction, but a major jurisdiction would be in
this new joint committee, which had a staff that would be
working on it on a rather continuous basis.
Senator Lugar. Well, I appreciate that answer. I think--
maybe they're just my own personal reflections, but as our
Nation approached the current war with Iraq, I think the
feeling that I had during the summer vacation, as I heard
statements by Vice President Cheney or others, was that we
might be going to war before we got back in the fall. Now, I
was reassured when we had a meeting with President Bush around
the table with many of the people who will be in this committee
that you've suggested, and he said, ``We're going to the United
Nations. Secretary Powell is going to testify.'' And so, that
was somewhat reassuring we were not going to war, since we were
going to the United Nations. But, then things deteriorated. And
before long there were at least thoughts that we were going to
war sooner than later, because the weather in Iraq gets warmer,
and therefore, if you were going to do something, it would be
better to do it in the spring than in the summer, if you were
to be effective with a strike of that sort.
Now, this sort of came through the rumor mill. There was no
committee in which some of us might have asked the President,
``Is that true? Is the fact--in a military situation, that this
is going to have to work out at this particular point?'' I just
reflect on this anecdotally, because these are very large
decisions that finally involved us for a long time, and the
need to have this consultation and some access to the President
and the Secretaries, and what have you, for many of us, we feel
is very important, our responsibilities.
But, I ask the question, just in behalf of our committees,
as they are constituted, while this committee of leaders is
meeting, that--after all, we were also trying to draw together,
ultimately, if we were going to have votes on this subject,
votes in the committee, votes in the Congress, relevant debate
of all of us, as well as those sitting around the table--and
I'm, in my own mind's eye, trying to think how all of this
progresses.
Mr. Baker. Well, Senator, if I might chime in here, Section
5(b), if you'll take a look at 5(b) of our proposed statute,
says that it is our view that the committees of jurisdiction
for the Resolution of Approval or Disapproval should be the
Senate Foreign Relations Committee in the Senate and the House
Foreign Affairs Committee in the House. So, we suggest the lead
role for these two committees.
Senator Lugar. They're mentioned specifically in this
section.
Mr. Baker. They are mentioned specifically in 5(b), and
they are--and it is our recommendation that they have the lead
role.
Mr. Hamilton. Senator Lugar----
Mr. Baker. That doesn't answer all of your questions,
about----
Senator Lugar. No, but that's----
Mr. Baker. [continuing]. How do you----
Senator Lugar. [continuing]. Explicitly you've tried to
meet that.
Mr. Baker. Yes, sir. Yes, sir.
Mr. Hamilton. Senator Lugar, my impression is that the
decision to go to war involves a lot more than foreign policy;
it involves intelligence, and it involves, certainly, the Armed
Forces. And you have enormous responsibilities in this
committee, extending far beyond the questions of war and peace.
Your committee, this committee, would not in any way be
diminished by this proposal. But, what we try to do is to put
in the room with the President the key players in all of the
areas that would be involved in making a decision to go to
war--Intelligence, Armed Services, Foreign Relations, Foreign
Affairs in the House--and, of course, the ranking member and
the chairmen of these key committees would serve on the
consultative committee, so there would be good coordination.
This is, as I think you said in your statement, the most
important decision government makes, whether or not you go to
war. And you want to get it right, as best you can. And I think
you have a better chance of getting it right if you have all
perspectives brought to bear and available to the President for
consultation.
Senator Lugar. Thank you very much.
The Chairman. If I could just follow up on that quickly,
and I apologize, Senator Kaufman, but--3(c) ``says the Joint
Congressional Consultation Committee consists of.'' You've
referred to it prior to that, but this is where you create it,
so to speak. And it simply says who it will be made up of. And
then, the chairmanship and the vice-chairmanship will rotate.
My question is, Would it be--I interpret it as a purely
consultative committee for the sole purpose of--not with an
ongoing standing obligation under the rules of the Senate; in
other words, requiring staff and an enormous amount of work.
Now, maybe you interpret that differently, but would it be
better to clarify that in some way, that its purpose will be
solely consultative with respect to the issue of armed
conflict, without staff?
Mr. Baker. Well, the Congress, of course, could do that.
The Chairman. I'm just wondering what your thought is on
that. It strikes me that that may be a way of dealing with some
of Senator Lugar's concerns, which I think are legitimate.
Mr. Baker. That would be, I would think, Mr. Chairman,
subject to the rules of the House and of the Senate; and
whatever those--whatever the wishes of the two bodies were
would be--would be, of course, I'm sure, embodied in the final
legislation. It was not our intent to sit up here and write
the----
The Chairman. Write all the details.
Mr. Baker. [continuing]. Details of those rules. But, we
did expressly think it was worthwhile recommending that the
leadership in this area remain with House Foreign Affairs and
Senate Foreign Relations.
Mr. Hamilton. I think the chairman--Senator Kerry, you've
got it exactly right. This is not a legislative committee.
You're not authorizing money. You are consulting with the
President--that's your sole purpose--on the question of going
to war. And so, it's a very limited purpose; obviously hugely
important, but very limited.
The Chairman. Well, we need to clarify that, because
paragraph 4(h) actually gets specific about staff and what we
might or might not do. So, I think this is worthy--this is
exactly why we have the hearing, and it's a good thing to
explore.
Senator Kaufman.
Senator Kaufman. Thank you, Mr. Chairman. I think this--
there is--as the panel said, there is no important--more
important issue facing the Congress than how we deal with going
to war, and I--having served this place for a long time, it's
the single most difficult decision that a Member of Congress
makes, and I'm sure it's the most difficult decision a
President makes.
The War Powers Act. I showed up in the Senate just about
the same time as the War Powers Act, and it's been like a rugby
football that's been kicked around for 36 years. And I think
that--I can't think of better people to try to get at the heart
of this than the people on this panel. And we're very, very
fortunate to have you here and working on this thing. And I am
very much in sympathy with your proposal. I think consultation
is a good idea.
But, if there's an--if the War Powers Act is a 300-pound
gorilla in the room, there's a 1,000-pound gorilla in the room,
and that is declaration of war, beyond the war powers. So, we
decide we have the War Powers Act, but at some point the
Congress act. And clearly we've not--we've only declared war
five times in our history, and the last one was the Second
World War. Secretary Christopher, you said there were
discussions about war, declaration of war, and I just think I
would be making a dereliction of duty if I didn't ask the three
of you, kind of, your opinion on what we should do--how we deal
with this declaration-of-war problem, which is--we just don't
do it, and we probably should, and I'd just like your thoughts.
Mr. Christopher. The Congress has decided, apparently,
Senator, to go the route of authorization to conduct military
operations, and that's taken the place of a declaration of war,
and seem to give the President all the authority he feels he
needs to go ahead. So, the declaration of war may well have
fallen into disuse. And whether that's fortunate or
unfortunate, I think that's the reality of where we are.
And so, we're trying to provide a certainty here that
there's consultation, even if there is not an issue about the
declaration of war. So, we provide for this consultation
whenever there are significant military actions contemplated,
whenever there is combat action lasting longer than 7 days,
without regard to whether or not there has been a declaration
of war or a motion for a declaration of war.
Mr. Baker. Congress has, in one way or another, authorized
every action, I think, Senator Kaufman, in the last 50 years,
with the exception of Grenada, Panama, and Kosovo, where there
was not express authorization.
Senator Kaufman. But, are you comfortable with the idea
that we--I'm not saying we can do--probably need a
constitutional amendment to change it--that essentially we have
this perception that we've never been--everybody knows we're at
war, but no one says we're at war. Does that bother you,
though? I mean, you deal with international leaders. Is that a
problem?
Mr. Baker. Well, I don't think there is--it was not a
problem, in terms of the conflicts that I was involved in,
certainly not the first gulf war. Everybody knew that was a
war, including--and all the foreign leaders treated it as such
when we talked to them about it. So, I don't--I'm not sure--I
would imagine that there are a lot of--there are a number of
other arcane provisions in the Constitution that don't have
ready application today.
And so, I don't--I don't know that a lot is lost. If the
Congress authorizes the action, in one way or another, is it
really magic for them to do it by way of a declaration of war?
I don't know.
Senator Kaufman. OK. And I would follow up on the chairmen
and ranking members. I think the staff question is an
interesting question. When you have, you know, staff in the
Foreign Relations Committee, Armed Services Committee, they're
studying this every day, they're up on what's going on. To have
another staff group off to the side that then meets, what
you're going to have is a meeting--consultative meeting, the
Senators are going to bring their own staff from their own
committees. It just kind of gets more people in to the room and
more people in the decision, which, as you have said, is the
most important decision you make.
Mr. Baker. You know, following up on what Chairman Hamilton
said, it may be--it may be preferable for the people on the
Joint Consultative Committee, the chairmen and ranking members
of the relevant committees and the leadership of the House and
Senate, to bring their own personal staffs and use them,
although what we were seeking to provide here is enough support
so that the Congress would feel that it has a more equal place
at the table. And I think at least from my own view--and maybe
Secretary Christopher and Chairman Hamilton have a different
view--I thought there was--that it was primarily oriented
toward providing information to that Joint Consultative
Committee; intelligence information, particularly.
Mr. Hamilton. Senator, to address your previous question, I
think one of the advantages of the bill that we're proposing
here is that it builds into the process broader support for the
military action. Everybody agrees that the country's better
off, and the President is better off, if he has broad support.
Today, a President can commit military forces, really, without
congressional involvement, and usually, of course, the Congress
comes along and supports the President, but that's not always
going to be true; it may be true most of the time.
But, what happens here is, the President notifies the
Congress. The Congress must act. To be blunt about it, in
almost every case I can imagine, the Congress is going to
support the President. It may be possible that it would be
otherwise, but not likely because Presidents are able to carry
the country on a national security issue, because they're the
only ones that have the voice to reach all the people.
Therefore, one of the things you want to do is to build as
broad a support base as you possibly can for that action. And I
think this provides the framework to do it.
I can well imagine some Members of the House, I'm sure no
Members of the Senate, would not want to vote on it. But, it's
important, we think, that they do vote on it and that the
Congress get on record, for the action or against the action,
as they choose. The result, I think, as a practical matter,
will be that a President will go into military action--lead the
country into military action--with much broader support than
otherwise might be the case.
Mr. Christopher. Senator, let me follow up with just a
thought or two on your very thoughtful question.
It seems to me that the joint committee that we propose is
a way for the President to talk to all the Members of Congress,
not just one committee or another committee. It's a conduit for
him to speak to all 535 members, which he lacks right now, and
that staff would enable him--enable this committee to really
get to the bottom of the President's request, and not have the
information flow be dominated by what's known in the NSC down
at the White House.
Mr. Hamilton. That's a very important point. Presidents
today do not know with whom to consult. Five hundred thirty-
five members. They know, of course, a few of them they need to
consult with.
Here, you provide a clear group of people with whom the
President should consult, built into law, and a Member of the
House or the Member of the Senate cannot complain, as they
usually do, ``I wasn't consulted.'' They have voted for a
mechanism for the President to consult with the Congress. And
they can't complain, then, if the mechanism is followed.
I think it's very important for a President to be able to
know, ``With whom do I consult on this question?''--and not
just do it hit or miss because Senator Kerry or Senator Lugar
are key players. There are a lot of key players in the
Congress. And this provides a President with a focal point for
consultation.
Senator Kaufman. I think it's an excellent proposal, and I
think it's been interesting to sit here and watch, in the
absence of real affirmation of the War Powers Act or the
declaration of war, there's a kind of a kabuki theater that
goes on, where the President, before they go to war or goes
into action, says, ``I have the power. I can do this. I don't
need you in the Congress to do it.'' But, in every single case,
what have they done? They've come to the Congress, because of
the point that they need that broad support. So, the system
works, and I think it works well. We do--but, I couldn't agree
with you more, I think knowing who to consult with, people
understanding what their responsibilities are, is always good,
no matter what kind of organization you have. So, I think this
is especially good, and I think that what you've come up with--
I think the staff thing is something that we just--you know, we
should take a hard look at.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Kaufman.
Senator Corker.
Senator Corker. I want to thank all of you for long years
of public service and continuing to help us through these
things, and certainly for your help in this particular issue.
So, I have some--just some specific questions.
In the event of the actionable event of disapproval, where
the Congress says, ``We disapprove of war taking place,'' and
the President--and even in the case--and I know this is very
unlikely, because, Chairman Hamilton--the fact is that Congress
generally does support the President in matters of this type.
Sometimes they go on longer, and sometimes they lose that
support. But, since we're not wrestling with the constitutional
issue of who really has the authority, there still--is there
still a remainder conflict there if the President decides,
``Look, I've declared war, and whether Congress overrides me
with more than 67 percent,'' or whatever--we still have that
conflict, constitutionally, do we not, with this solution?
Mr. Baker. You're always going to have that, Senator.
Unless you get a constitutional amendment or unless you get the
Supreme Court to rule on the matter, there's no other way to
resolve the constitutional problem. But, it would be----
Senator Corker. And----
Mr. Baker. [continuing]. Very difficult for a President, if
the Congress voted a Resolution of Disapproval, he vetoed it,
and they passed it over his veto, it would be extraordinarily
difficult for him to continue to support the military action
politically within the country. When you lose--and, of course,
the will of the American people is the final arbiter of our
foreign policy in a democracy such as we enjoy. Once he loses
that, he's going to be in trouble. So, it's the political
imperative that would then kick in, but you will not have a
resolution, you're quite right, of the underlying
constitutional problem.
Senator Corker. So, what we're really creating here is sort
of the code of conduct that will exist between Congress and the
President. It really is not going to have the effect of law. Is
that correct?
Mr. Baker. Oh, it would have the effect of law, I think.
That's what we have in mind. It would be a statute that would
be on the books. It could be challenged, I suppose,
constitutionally, ex post facto, by either the--somebody in the
Congress, but, you know, we've had many cases where Members of
Congress have filed suit against the President, and the courts
won't entertain the suit. Or, it could be challenged by the
President, saying, ``I don't care whether they overrode my veto
of the Resolution of Disapproval. I'm going forward anyway.''
Very risky business for the President.
Senator Corker. So, let's--you want to say something?
Mr. Christopher. I just wanted to say that if there was a
Resolution of Disapproval passed by both Houses, and even if
the President was able to avoid a veto and not have it
overridden, nevertheless, the Congress could then, through its
internal rules, have their will expressed. For example,
Congress, I suppose, could have a rule that if there was a
Resolution of Disapproval approved in both Houses, that
thereafter there could be a point of order if there was any
military appropriation. Congress has a great deal of power, of
course, in the fiscal sense, so they can express their will. If
there was a Resolution of Disapproval that either the President
signed or was passed over his veto, that would be true even to
a greater degree and Congress could express its will through
failure to make appropriations.
Senator Corker. So, we're sitting here today, and as we're
sitting here, there are drones flying over Pakistan. And when
the intelligence is appropriate and we actually know a target
is zeroed in on, we're dropping Hellfire missiles on top of
living rooms or whatever we might call where folks are occupied
today. So, that's happening as we're sitting here. That's in
the public domain. Everybody understands that. So, explain to
me exactly, since we know that's ongoing, and it's been ongoing
for a long time, how does that fit into this particular
scenario that's been laid out?
Mr. Baker. There are a number of exclusions and exemptions,
Senator Corker. Some of those, the chairman mentioned, that
might cover the situation you're talking about, actions taken
by a President to repel attacks or to prevent imminent attacks
on the United States, its territorial possessions, its
embassies, its consulates, or its Armed Forces abroad; limited
action of reprisal against terrorists or states that sponsor
terrorists; covert operations. Some of this stuff that's going
on perhaps has been authorized as a covert operation. Those are
not covered by the statute, unless, as I said early on, they
ripen into a significant armed conflict by virtue of having a
continuing combat operation for more than 7 days.
Senator Corker. So, to get back to Senator Lugar's question
about Somalia and Yemen and lots of places where, ``al-Qaeda''
is and exists, actions like that, that continue to be surgical
in nature, that don't necessarily involve lots of troops, if
you will, those types of actions can continue ad infinitum
without any types of action by Congress.
Mr. Baker. Well, the only thing that's required under this
statute of a President, to begin with, is consultation. So, no
approval is necessary. Simply consultation. Those things could
continue until they would ripen into a significant armed
conflict, by virtue of a, I think, continuing combat operation
for more than 7 days.
Senator Corker. So, if we're moving down the spectrum to
that, one of the exclusions also is the safety of our troops--
--
Mr. Baker. Right.
Senator Corker. [continuing]. That--so, it's hard to
imagine many armed conflicts taking place in areas like that,
which appears to be our greatest threat today--I mean, it seems
that the types of wars we've had in the past are changing
somewhat--so, it seems to me, if we were to--going to go into
Somalia or Yemen or Pakistan, which even is more immediate--if
we were to go into that kind of conflict, the safety of our
troops would always be an issue, it seems, and especially in
the surgical types of operations that we've had. So it seems
like, in many cases, per the way this is drafted, the President
would actually consult 3 days after it took place, at which
time we're semiengaged.
Mr. Baker. Right.
Senator Corker. And I think that's where Congress finds
itself many times. It's hard to undo an engagement that already
has men and women, that we don't want to see harmed, in harm's
way. Is that correct?
Mr. Baker. That's correct. I think that's correct.
Mr. Christopher. Senator, it's difficult to get into this
refined definitional issue in this kind of a hearing. I suppose
it might be argued that some of the actions in Pakistan at the
present time would be covered by the resolutions after 9/11
which authorized the President to take action against al-Qaeda
and other terrorist groups. I'd say that's a very difficult
definitional issue. There will always be difficult definition
of issues as to what involves combat operations lasting longer
than 7 days. But, after working on this issue for a long time,
that was the best we could do to find some definition that had
some meaning for the future.
Senator Corker. Well, I think the contributions that have
been made are outstanding, and I thank you for coming before
our committee and doing this work. I think that what it also
does is, raises lots of issues for us to think through as we
try to refine it.
I would just reiterate, just to be the third person to
mention this--I think, to the extent you establish staff with a
consultative group, I think it does, in fact, give the
President, on one hand, one place to go. I think, in the
process of giving the President one place to go, I think that
the other committees of jurisdiction end up sort of becoming
even more irrelevant, which we're already--I mean, I--in
fairness, this committee's pretty irrelevant as it relates to
those kinds of actions anyway. That's just the way it is. I'm
not complaining. But, it seems to me that this committee, with
staff, could end up creating a situation where Armed Services,
Intelligence, Foreign Relations even become less relevant in
the process. That could be one of the byproducts. I understand
why, in fact, you did it, to make the knowledge at that
consultative time equal, as much as possible. It's never going
to be equal to the administrative branch, because they just--
look, they have the tools and--and should have the tools, OK--
but, I think there's a--there's a balance there that one ought
to think about, and I wonder whether we'd be better off having
specific individuals in each of these committees that are on
the committee staff of Foreign Relations, of Armed Services, of
Intelligence, that are--that make up--that are specifically
aligned or part of that consultative group. I think that's a
much better way of doing it. Otherwise, Chairman Kerry, you
know, I--I think, in essence, you and Senator Lugar become far
less relevant in the process.
So, anyway, thank you very much. I see that my time is up.
It looks like somebody might want to say something.
Mr. Hamilton. Senator, may I say that I think these staff
members really are an internal matter, that your judgment may
be better than ours on the Commission, and we would recognize
that.
With regard to the definitional problems, you cannot define
precisely everything that might occur. You just can't do it.
And we wrestled a lot with the definitions. And we did the best
we could. And we did not want to overdefine anything. But, at
the end, it seems to me, what is really important here is that
we require meaningful consultation. That's what's really
important. And I think you can, to be blunt about it, just get
lost in the definitions. You're trying to define the
undefinable, in effect. And so, while attention has to be paid
to those--and I don't want to denigrate that effort--you have
to understand that you cannot get precise definitions for all
of these possible engagements across a wide spectrum.
At the end of the day, what you really have to focus on is,
you've got a situation today where there is no requirement for
a President to consult with Members of Congress on this issue.
And we're saying, ``Mr. President, you must consult.'' And
that, to me, is the overwhelming point.
Mr. Christopher. Mr. Chairman, I wonder if I could use
Senator Corker's question to make a broader comment.
The Chairman. Absolutely.
Mr. Christopher. When we finished our discussions in the
committee, we had an important decision to make. Should we just
make it a recommendation, put out a report like this, or should
we try to draft a statute? And we felt it was more likely to be
practically useful to draft the statute.
Having done the draft, we don't have any great pride of
authorship and we would be glad to work with Senators or their
staff to try to perfect it and find some better ways to deal
with these issues.
I think we were right in trying to draft the statute so
you'd have something concrete before you, but, as I say, this
cannot be the final word, and the Congress will work its will,
and we'll work with you so you can work your will.
The Chairman. Well, thank you, Mr. Secretary.
I don't think it's a--frankly, as complicated as maybe some
people think it sounds, but I'm--I think the power of this is,
No. 1, that you require the consultation. But, it's also
equally as powerful that you require Congress to step up after
a period of time and take a position.
And, frankly, both serve all of our interests. I mean,
the--you know, the term ``significant armed conflict,''
including any operation that either lasts 7 days or that the
President knows is going to last 7 days--so, he comes to you,
and, in the consultative process, says, ``Look, this is going
to take a few weeks. It's a tough, big operation,'' so you know
that you're in that posture. But, it also requires us to apply
a certain amount of practical common sense and reasonableness
standard here.
I can easily see what's happening--I mean, we're not at war
with Pakistan. I don't think, by anybody's definition, we'd say
we're at war with Pakistan. We are at war in Afghanistan
against al-Qaeda and Taliban efforts, et cetera, that are
supportive of al-Qaeda. And--but the actions in Afghanistan--in
Pakistan are sort of cross-border, that clearly would fit into
either paragraph 1 or paragraph 2 of the limitations--all
right, not paragraph 1 or 2, but those particular two
limitations. And I think a reasonable standard applied to that
finds that pretty quickly.
What's important here is that we resolve something we
haven't been able to do, which is get Congress to act. I mean,
that's pretty significant. And it's in the interest of any
President to consult, because a President who doesn't consult
and doesn't have the support of Congress isn't going to be able
to sustain this for very long, and then we're all weakened as a
consequence of that.
So, I think that, again, you know, we can work out the
details of it, but I think the consultative piece--you know, if
we're consulting as a group and it is specified who the
President is going to consult with, we're going to bring our
existing staff, either from this committee, Carl Levin, John
McCain, et cetera, from Armed Services, Intelligence people.
We're all going to consult, anyway, because this is big stuff.
It's important stuff that has lives at stake and the interests
of the country. So, I think the staff thing is the least of our
issues. I think, just keeping it clean and simple and setting
it up so you require the consultation, and then have this vote
structure, is a very significant step forward, because we've
been at absolute gridlock on this issue for 35, 40 years now--
30 years.
Senator Corker. If I could respond to Secretary Hill, I
want to say that, from my perspective--and I appreciate what
he's saying, ``no pride of ownership''--I think the offering of
legislative language is a huge contribution. I think,
otherwise--and I think the fact that you've done that actually
allows us to think through some of these details that otherwise
we wouldn't. So, I thank all three of you, and I certainly
appreciate your being here today.
Senator Kaufman. Mr. Chairman, I'd just----
The Chairman. Senator Lugar and I want to thank you for
protecting our relevancy here. We're particularly grateful.
Senator Corker. Well, I will say this, that I don't think
the Foreign Relations staff, because of the way we deal with
foreign aid, deal with other kinds of things, just willy-nilly
passing out program after program, and not really looking at
eliminating the ones that we feel are less--I think we do, in
fact, render ourselves very irrelevant on some of these things.
And I know that you want to change that, and I----
The Chairman. Appreciate the----
Senator Corker. [continuing]. Appreciate it.
Senator Kaufman. Mr. Chairman, just one other comment, and
that is, you know, like, for instance, a covert action has to
be approved by the Intelligence Committee, so I think one of
the things we can do on this--and it's not as big a problem as
I think you think it is, because the Congress does have power
in a lot of these areas, and it's our job to go through and
find out where different Congress committees have to approve
different actions by the President, and we all know that one of
the big things is the power of the purse strings. I mean,
eventually----
Mr. Baker. Right.
Senator Kaufman. [continuing]. They've got to get the
appropriations approved. So, this--think this is an excellent,
excellent proposal, and I think when you look at it in the
total of the Congress's responsibility and the Congress's
powers in this, wrestling with the President, I think this is
going to turn out to be something that'll be--the definitional
problems are not as great as they may sound.
Mr. Baker. May I make one point, Mr. Chairman, on
relevancy? I think this proposal of ours--now, of course, I'm
biased, but--I think this offers an opportunity for this
committee to take the lead on a matter that would enhance the
relevancy, Senator Corker, of this committee. You have a
statute in this area, which is a joke. It is observed more in
the breach than in the observance. And at the very least, that
is not good in a nation of laws, that our primary statute in
this area is observed more in the breach than in the
observance.
So, if we can replace that with something that's workable
and practical and pragmatic, that enhances consultation between
the branches, that alone, I think, will help the relevancy of
the committee, if this were the movant committee in doing that.
The Chairman. Senator Feingold, thanks for your forbearance
for this little dialogue. We appreciate it.
Senator Feingold. Thank you, Mr. Chairman.
Obviously, we're so fortunate to have such an exceptionally
distinguished panel. And thank you for all your work on this
subject.
I'd like to use some of my time to just 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's 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, publicly aired? So,
clearly any reforms of the War Powers Resolution must
incorporate these lessons and foster more deliberation and more
open and honest public dialogue before any decision to go to
war.
And I appreciate that attention is being drawn to this
critically important issue, which, of course, goes to the core
of our constitutional structure. It's 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's critical role in this
decisionmaking 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 to
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. The campaigns in Granada
and in Panama, are a few examples. Neither of these cases
involved imminent threats to the United States that justified
the use of military force without the prior approval of
Congress. The 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 gone--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 runup 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. 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. And I note
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?
Mr. Baker. Duly enacted statutes? Not in my view. On the
other hand, there has been--you said ``most Presidents,''
Senator Feingold. All Presidents have refused to acknowledge
the--or, all Presidents have questioned the constitutionality
of the War Powers Resolution.
Senator Feingold. Right.
Mr. Baker. Both Democrat and Republican.
Senator Feingold. Right. I simply said ``several Presidents
refused.''
Mr. Baker. Yes.
Senator Feingold. Right. But, most have honored the
resolution, in practice.
Mr. Baker. Well, that's not really 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.
Senator Feingold. Well, I--and, nonetheless, I appreciate
your answer to the basic question, and 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?
Mr. 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, that you do now, because you have a----
Senator Feingold. But--well, I was a--I was a relatively
middle, junior member of the Foreign Relations Committee. It
was not, at that time, a member of the Intelligence Committee.
Mr. Hamilton. Yes.
Senator Feingold. At some point, I was afforded the
opportunity to go down to a secured room and to hear directly
from the CIA people whether they felt the same thing that we
were hearing publicly. And I've got to tell you, their tone,
when they were trying to express these arguments that 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. Now,
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 a part of that pre-, you know,
military action process.
Mr. Hamilton.
Mr. 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.
Senator 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.
Mr. Hamilton. Well, the other----
Senator Feingold. So, this was a process where all
Members--well, perhaps not all, but at least members of the
Foreign Relations--all members of the Foreign Relations
Committee were given the opportunity to participate in that
kind of----
Mr. Hamilton. And the proposal that we're putting before
you--Members of Congress are required to vote on it.
The Chairman. Senator----
Mr. Hamilton. You didn't have that--you don't have that
requirement, under present law.
The Chairman. Yes, there is no requirement, under the
present law, at all. What happened is, we did it, under the
prerogatives of each of the committees, because the committee
chairs and ranking members understood that that was part of the
responsibility.
Nothing in here--and we discussed before you came here--
about this consultative component being strictly in fulfillment
of the requirement that the President let us know what he's
thinking of doing so that those other committees--that's why
each of them are part of it--the Intelligence Committee, the
Armed Services Committee, the Foreign Relations Committee--
would then go about their normal business of involving all of
their members. I mean--but, there no statute that required that
for you, either, at this point.
Senator 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 to
this consultative process that's provided by this new statute,
so I have even less need to go through a formal vote,'' which,
you know, as we just talked about, most Presidents have
decided--President 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 this kind of
participation. But, I'm not saying this doesn't literally
require it. It's what----
Mr. Baker. But, Senator----
Senator Feingold. [continuing]. Effective--yes, Mr. Baker.
Mr. Baker. [continuing]. We require a vote within 30 days,
so the President is going to be facing a vote of the Congress.
And if the vote is a Resolution of Disapproval, that's going to
have very serious adverse impacts on the President's ability--
--
Senator Feingold. But, in the case of Iraq, of course----
Mr. Baker. Well, that--of course, you know----
Senator Feingold. Thirty days after it would have been not
too helpful.
Mr. Baker. Well, that's true, but the President--both
Presidents went to the Congress to get approval, and actually
obtained approval.
Now, back to the point you made about the observance of a
statute duly enacted and whether a President can question its
constitutionality, they've--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, Senator Feingold, 264
times, during which period the Congress has declared war 5
times. So, we're faced with a 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're making, and
the right of the President to make the argument that all
Presidents have made since the War Powers Resolution was
passed, that the Constitution gives either (A) the Congress the
authority, or (B) the President the authority. So, we expressly
reserve those constitutional arguments, put them to the side,
because 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.
Senator 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----
The Chairman. No, take your--no problem.
Senator Feingold. [continuing]. 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 somehow make
a President feel that he 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?
Mr. Baker. Well, I don't think so----
Senator Feingold. That is the nature of my concern.
Mr. Baker. Well, my--let me just quickly answer it. I don't
believe so, because the President has that power today. So,
we're not--in this effort, we--I don't see this as giving the
President something he doesn't have today.
Senator Feingold. Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Feingold. Those are--an
important inquiry, and I think it's worth examining the sort of
Iraq experience, in terms of the vote up front versus late.
But, there may be some way, Mr. Secretaries and Mr.
Chairman, in terms of the definitions--I know you all have
struggled with this, and maybe we can spend a minute sort of
reviewing that, as to whether you can, you know, cover those
rare circumstances where you have such a level of deployment
and such a level of confrontation--i.e., I mean, the invasion
of a country is a pretty big deal. There ought to be some way--
I mean, that is certainly separate-able from about 200-and-some
of those instances of use of force. And so, maybe there's a way
to try to have a balance here, and I think we ought to sort of
examine that.
At any rate, are there any further questions from any
colleagues?
[No response.]
The Chairman. There will be some questions for the record,
if you don't mind. I think we want to try to fill this out a
little bit. And so, I'm going to leave the record open for a
week, and if you--I hope we don't overly impose on your
goodwill here, but I think there will be a few questions for
the record that might be helpful.
Mr. Baker. Chairman, we'll be glad to respond to those
questions.
The Chairman. Again, we really thank you. This is just a
huge and complicated topic, as we can see, but I think you've
made a major, major contribution to our thinking about how to
proceed forward and we want to work with you very closely to
see how we can take this further. So we thank you for coming
today.
Mr. Baker. Thank you, sir.
The Chairman. We stand adjourned.
[Whereupon, at 11:38 a.m., the hearing was adjourned.]
----------
Additional Questions and Answers Submitted for the Record
Responses of Hon. Warren M. Christopher to Questions Submitted by
Senator Russell D. Feingold
Question. Mr. Christopher, in your view, since 1973, have past
Presidents always sought advance congressional approval of military
operations in all situations in which such approval would have been
feasible?
Answer. Presidents have not always sought advance congressional
approval for military operations, including the sorts of operations
defined under our proposed statute as ``significant armed conflicts.''
Examples of Presidents not seeking or obtaining formal approval would
include the military actions in Grenada in the 1980s and Panama in the
early 1990s. And while President Clinton sought congressional approval
for the military actions he initiated in the former Yugoslavia in the
1990s, no express approval was obtained before those significant armed
conflicts began. In other instances, of course--including both Iraq
wars and the war in Afghanistan--Presidents have obtained advance
approval. However, even when there has been advance approval or
consultation--and this goes back to the Vietnam war and before--there
have been claims that the consultation or approval was rushed or based
on incomplete information. Also, there have been charges that the
consultation after Congress gave the initial approval has been lacking,
either through fault of the President or Congress.
In any event, the focus of our proposed statute is to ensure a
meaningful exchange of views and formal consultation, both at the
outset, and throughout any conflict in which the country engages. We
call for Congress within 30 days of the initiation of a significant
armed conflict to vote up or down on the action, so its will is known.
We believe that the Joint Congressional Consultation Committee that our
statute creates will allow the President to share information with the
Congress more directly and obtain its meaningful, independent advice.
We also think the full Congress will work with the Joint Committee and
its members to obtain the necessary information to vote on resolutions
of approval or disapproval. The Joint Committee will also serve as a
conduit for the full Congress and its Members to express their views to
the White House.
All in all, we think our proposed statute will significantly
improve the current state of affairs. We do not believe the War Powers
Resolution of 1973 has encouraged or facilitated meaningful
consultation (just the opposite). And we do not believe the 1973 law
has encouraged or compelled Presidents to seek congressional approval.
Question. Mr. Christopher, the consultation and approval procedures
of your bill only apply to significant armed conflict which does not
include ``limited acts of reprisal against terrorists or states that
sponsor terrorism.'' Given that the use of military force against
another government could provoke an extended military conflict and is
defined as an act of war under the laws of armed conflict no matter how
``limited'' it may be, wouldn't it be preferable to seek prior
congressional approval whenever possible?
Answer. Prior approval is usually ideal for a number of reasons,
but sometimes it is impossible to obtain as a practical matter because
of the need for secrecy or other emergent circumstances. Most
constitutional scholars agree that the President has some latitude to
act unilaterally to protect the country's interests. Section 4(A) of
our proposed statute encourages the President to consult regularly with
the Joint Congressional Consultation Committee, even with regard to
such matters.
Our statute recognizes, however, that even short, swift military
actions can lead to longer engagements. Thus, sections 3(A)(ii) and
4(B) require the President to consult and trigger the congressional
voting mechanisms in section 5 in the case of ``any combat operation by
U.S. armed forces . . . expected by the President to last more than a
week.'' One might cynically argue that Presidents will purposefully
underestimate the time required for a particular operation so as to
avoid the consultation and voting requirements in sections 4 and 5.
However, any statute in the war powers area must, at some level, assume
the good faith of the parties involved, and Congress always has
political means at its disposal to address such concerns. The
enforcement provisions established in the 1973 resolution, while
defended as good policy by some, have never been invoked by the full
Congress or enforced by the courts.
In any event, section 4(B) of our proposed statute makes clear that
if a ``limited act of reprisal against terrorists''--one of the sorts
of actions described in section 3(B) of the statute--``becomes a
significant armed conflict as defined in section 3(A) [by reason of
lasting more than seven days], the President shall similarly initiate
consultation with the Joint Congressional Consultation Committee,''
pursuant to section 4, and section 5's voting procedures are triggered
as well.
Question. Mr. Christopher, do you believe that congressional
authorization to fight al-Qaeda extends to the entire world, including,
for instance, U.S. military strikes in Somalia? What are the
limitations on the global use of such authorization and what is
Congress's role in defining those limitations?
Answer. The September 18, 2001, joint resolution that Congress
enacted, Public Law 107-40, S.J. Res. 23, provides (italic added):
That the President is authorized to use all necessary and
appropriate force against those nations, organizations, or
persons he determines planned, authorized, committed, or aided
the terrorist attacks that occurred on September 11, 2001, or
harbored such organizations or persons, in order to prevent any
future acts of international terrorism against the United
States by such nations, organizations or persons.
Such hypothetical questions are hard to answer given the limited
facts, but in light of the open-ended language of the joint resolution,
if the President found there was an organization in Somalia that aided
the September 11 attacks and that organization posed a current threat,
one could certainly argue that the authorization extends that far.
Congress can always limit or define the scope of its
authorizations--either by time or geographic scope. Presidents may
debate the constitutional force of such limitations, but Congress, in
drafting its authorizations, controls the pen and can be as clear as it
wants in what is being authorized. In the first Iraq war, for example,
Congress authorized the President to take military action against Iraq,
but limited the authorization to enforcing existing U.N. Security
Council resolutions. Thus, once the U.S.-led coalition expelled Iraq
from Kuwait, there was a strong argument to be made that had the armed
forces deposed the Iraqi Government, the President would have been
acting beyond his congressional authorization. Congress and President
Ronald Reagan's administration also worked closely on the United States
peacekeeping mission in Lebanon. After negotiations between
congressional leaders and the White House, Congress specifically
authorized American troops to remain in Lebanon for 18 months. During
the Vietnam war, Congress passed measures, including what is known as
the ``Fulbright Proviso'' in the War Forces-Military Procurement Act of
1971 that placed limitations on providing military support and
assistance to the Governments of Cambodia or Laos. This Proviso was
criticized, however, as being unclear. In recent years, Senator Byrd,
for example, proposed a sunset, or time, limitation on the recent Iraq
War Authorization. That amendment was rejected.
______
Response of Hon. Lee H. Hamilton to Question Submitted by Senator
Russell D. Feingold
Question. Mr. Hamilton, in your view, were the consultations with
the Gang of Eight on President Bush's warrantless wiretapping and
interrogation programs sufficient to ensure adequate oversight? If not,
would we be well advised to extend a similar oversight structure of the
power to go to war?
Answer. Our Commission has gone out of its way not to call balls
and strikes, particularly concerning recent events.
The Gang of Eight structure is different than the one proposed in
our statute. We propose involving a larger group (20 key leaders in
Congress from both sides of the aisle) and requiring up-or-down votes
of the whole Congress concerning any significant armed conflict, as
well as smaller conflicts that grow into significant ones. We think our
procedure provides not only a considerable amount of oversight, but a
good and productive forum for the open and timely exchange of views.
A P P E N D I X
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