[House Hearing, 112 Congress]
[From the U.S. Government Printing Office]
WAR POWERS, UNITED STATES OPERATIONS IN LIBYA, AND RELATED LEGISLATION
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HEARING
BEFORE THE
COMMITTEE ON FOREIGN AFFAIRS
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
MAY 25, 2011
__________
Serial No. 112-38
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Printed for the use of the Committee on Foreign Affairs
Available via the World Wide Web: http://www.foreignaffairs.house.gov/
______
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COMMITTEE ON FOREIGN AFFAIRS
ILEANA ROS-LEHTINEN, Florida, Chairman
CHRISTOPHER H. SMITH, New Jersey HOWARD L. BERMAN, California
DAN BURTON, Indiana GARY L. ACKERMAN, New York
ELTON GALLEGLY, California ENI F.H. FALEOMAVAEGA, American
DANA ROHRABACHER, California Samoa
DONALD A. MANZULLO, Illinois DONALD M. PAYNE, New Jersey
EDWARD R. ROYCE, California BRAD SHERMAN, California
STEVE CHABOT, Ohio ELIOT L. ENGEL, New York
RON PAUL, Texas GREGORY W. MEEKS, New York
MIKE PENCE, Indiana RUSS CARNAHAN, Missouri
JOE WILSON, South Carolina ALBIO SIRES, New Jersey
CONNIE MACK, Florida GERALD E. CONNOLLY, Virginia
JEFF FORTENBERRY, Nebraska THEODORE E. DEUTCH, Florida
MICHAEL T. McCAUL, Texas DENNIS CARDOZA, California
TED POE, Texas BEN CHANDLER, Kentucky
GUS M. BILIRAKIS, Florida BRIAN HIGGINS, New York
JEAN SCHMIDT, Ohio ALLYSON SCHWARTZ, Pennsylvania
BILL JOHNSON, Ohio CHRISTOPHER S. MURPHY, Connecticut
DAVID RIVERA, Florida FREDERICA WILSON, Florida
MIKE KELLY, Pennsylvania KAREN BASS, California
TIM GRIFFIN, Arkansas WILLIAM KEATING, Massachusetts
TOM MARINO, Pennsylvania DAVID CICILLINE, Rhode Island
JEFF DUNCAN, South Carolina
ANN MARIE BUERKLE, New York
RENEE ELLMERS, North Carolina
VACANT
Yleem D.S. Poblete, Staff Director
Richard J. Kessler, Democratic Staff Director
C O N T E N T S
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Page
WITNESSES
The Honorable Justin Amash, Member of Congress................... 11
The Honorable Thomas Rooney, Member of Congress.................. 15
The Honorable Christopher Gibson, Member of Congress............. 18
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
The Honorable Ileana Ros-Lehtinen, a Representative in Congress
from the State of Florida, and chairman, Committee on Foreign
Affairs: Prepared statement.................................... 3
The Honorable Justin Amash: Prepared statement................... 13
The Honorable Thomas Rooney: Prepared statement.................. 17
The Honorable Christopher Gibson: Prepared statement............. 21
APPENDIX
Hearing notice................................................... 40
Hearing minutes.................................................. 41
WAR POWERS, UNITED STATES OPERATIONS IN LIBYA, AND RELATED LEGISLATION
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WEDNESDAY, MAY 25, 2011
House of Representatives,
Committee on Foreign Affairs,
Washington, DC.
The committee met, pursuant to notice, at 10:30 a.m., in
room 2172 Rayburn House Office Building, Hon. Ileana Ros-
Lehtinen (chairman of the committee) presiding.
Chairman Ros-Lehtinen. The hearing will come to order.
After the ranking member and I make our opening remarks,
committee members will have the opportunity to make 2-minute
statements before we hear from today's distinguished panelists,
that's distinguished except for Mr. Rooney of Florida.
And, without objection, Members, including today's
panelists, may have up to 5 days to insert statements into the
record, and the chair will recognize herself.
We meet today as part of our continuing oversight of the
United States involvement in Libya to hear from our non-
committee colleagues who have introduced legislation on war
powers, and on authorities relating to the use of force to
address the situation in Libya.
The committee will continue our efforts tomorrow morning at
the House-wide Members briefing with legal experts. That
briefing had to be rescheduled from May 12th due to the
avalanche of House floor votes.
As we have reviewed before, the President commenced U.S.
military operations inside Libya on March 19th, and notified
Congress within 48 hours consistent with the War Powers
Resolution. He announced operations limited in their nature,
duration, and scope as part of an international effort ``to
prevent a humanitarian catastrophe and address the threat posed
to international peace and security by the crisis in Libya.''
The administration has claimed that congressional approval
was not constitutionally required, and that the use of force in
Libya was constitutional because the President ``could
reasonably determine that such use of force was in the national
interest''--an extremely broad claim of war making power. Even
some who regard the President's action as legal are concerned
that the endorsement by the Arab League, the United Nations,
and NATO seem to figure more prominently in his stated
justifications than do clearly identified U.S. national
security interests.
Since the President's notification, NATO-led air strikes in
Libya have inflicted serious damage on Ghadafi regime's war
machine, yet lawless troops continue to demonstrate
cohesiveness and operational superiority over rebel forces.
Last Friday, concurrent with the 60-day deadline under the
War Powers Resolution, the President sent a new letter to
Congress stating that the U.S. role in Libya operations, ``has
become more limited,'' and consists of, and I'm quoting here,
``non-kinetic support to the NATO-led operation, air strikes in
support of the no-fly zone, and since April 23, precision
strikes by unmanned aerial vehicles.''
The President also expressed support for a bipartisan
Senate resolution introduced Monday by Senators Kerry, and
McCain, and five others. That measure expresses the sense of
the Senate in support of ``the limited use of military force by
the United States in Libya as part of the NATO mission'' and
calls on the President to submit to Congress a detailed
description of U.S. policy objectives and plans in Libya. It is
not a formal authorization for the use of force in Libya
pursuant to the War Powers Resolution.
The measures introduced by today's panelists would take a
more Congress-centered approach to the Libya campaign.
Mr. Rooney's resolution, House Concurrent Resolution 32,
expresses the sense of Congress that the President should
obtain statutory authorization for the use of force pursuant to
the War Powers Resolution.
The bill introduced by Mr. Amash, H.R. 1212, would cut off
funding for the use of force in Libya until it is authorized by
Congress.
And Mr. Gibson's bill, H.R. 1609, would revise the text of
the War Powers Resolution, replacing its current congressional
procedures with a shorter provision tied more directly to
Congress' power of the purse.
Regardless of where one comes down on war powers issues,
and whether the administration requires express authority to
continue its limited engagement in Libya, we can all agree that
the administration must address certain critical questions that
Congress and this committee have been asking for weeks.
What are the specific goals and strategic end game that our
armed forces are pursuing in Libya? Are we willing to accept
any role for Ghadafi in Libya's future? Who exactly are the
armed rebels and the Transitional National Council? And what
safeguards are in place to insure that any U.S. assistance does
not fall into the hands of those working against U.S. national
security interests.
Two weeks ago, this committee favorably reported a
Resolution of Inquiry seeking information from the Department
of State. We will press for answers from the administration at
the classified interagency briefing for members that we have
scheduled for tomorrow afternoon.
I want to thank our panelists for making the time to be
here today. I look forward to our discussion, and I'm now
pleased to yield to my good friend, the ranking member, Mr.
Berman for his opening remarks this morning. Thank you, Howard.
[The prepared statement of Chairman Ros-Lehtinen follows:]
[GRAPHIC(S)] [NOT AVAILABLE IN TIFF FORMAT]
[GRAPHIC(S)] [NOT AVAILABLE IN TIFF FORMAT]
Mr. Berman. Thank you very much. It's good to be your good
friend. I don't know if Mr. Rooney still is. Thank you, Madam
Chairman.
The President commenced combat operations in Libya to
prevent a humanitarian catastrophe at the hands of Ghadafi's
forces. There was bipartisan support for this effort, and I
believe the President prevented massive loss of life through
the decisive use of force.
I continue to believe the mission is relevant and
necessary. Ghadafi must be removed in order for Libya to have a
chance to transition to humane governance and democracy. His
indiscriminate use of force against civilians underscores the
importance of the U.N. resolution that provides the basis for
the NATO action.
For these reasons, I support the draft Senate resolution
introduced by Senators McCain and Kerry, which expresses
support for the limited use of force in Libya.
I believe efforts to either terminate funding for this
effort or force an immediate withdrawal of forces would reverse
to disastrous effect the very meaningful progress already made
in Libya. It's time to end the stalemate decisively, and that
can't be stopped. That can't be done by stopping now.
I'd like to give the President limited time to pursue this
mission. To do otherwise would be, once again, to invite a
horrible massacre of Libya civilians. But underlying it is a
central legal question.
The War Powers Resolution acknowledges the President may
introduce forces into hostilities unilaterally for a period of
up to 60 days. That may not be what the Constitution originally
envisioned or consistent with a strict reading of congressional
authority, but it is what Congress by the terms of that War
Powers Act presumed; that, in effect, they were amplifying that
provision of the Constitution.
The courts, of course, have not been willing to get into
this dispute between the Executive and the congressional powers
in this area.
Now that the 60 days has run, we must evaluate the
specifics of ongoing combat operations to determine whether
these activities still meet the War Powers Act standard of
engagement in hostilities, thereby necessitating a formal
authorization for the use of force. This is a threshold
question.
When the administration commenced operations in March, the
President unambiguously to my way of thinking introduced forces
into hostilities. The U.S. was directly striking targets in
Libya, providing intelligence support, and deploying forces off
the coast of Libya. Is this still the case?
The President has transferred control of this operation to
NATO, and the U.S. involvement is more limited than it was
before.
There is a fascinating article in today's New York Times
that lays out some of the specific aspects we are still
involved in. And the threshold question for us here is whether
U.S. armed forces have slipped below that threshold of
hostilities obviating the need for congressional action.
A couple of days ago I thought we might have. As I read the
New York Times article and get more information on what we're
doing now, I'm much less sure of that conclusion.
We can argue theory here. This is--we need to take a close
look at exactly what the President is doing in order to
evaluate the War Powers Resolution threshold for termination.
For example, could one argue that periodic drone strikes do
not constitute introducing forces into hostilities? Since the
strikes are infrequent, there are no boots on the ground.
Simultaneously continued and sustained targeting of a
foreign country, regardless of the weapon system, could--might
well meet the resolution's definition of introducing armed
forces into hostilities.
There are no black and white answers here, and I look
forward to our witnesses' views on these complex questions. But
I do want to say, I read the testimony of our three colleagues'
legislation and their approach to this, and they are raising
fundamental questions. But before we get too quick about
railing about the executive branch, we have to look at
ourselves and come to terms with what we are willing to do to
exercise the authorities that the Constitution gave us. And we
have the power within this institution to make that effort, to
have an academic discussion of attacking the President, whether
he's exceeding his Article II powers when we aren't willing to
exercise our Article I powers is a funny approach to take.
And with that, I yield back, and thank the chairman for
calling this hearing.
Chairman Ros-Lehtinen. Thank you very much, Mr. Berman.
Mr. Gallegly of California is recognized for 2 minutes.
Mr. Gallegly. In the interest of time, I would yield.
Chairman Ros-Lehtinen. Thank you. Mr. Manzullo,
Subcommittee on Asia and the Pacific chairman is recognized for
2 minutes.
Mr. Manzullo. Thank you.
My big concern is the President is currently following the
lead of NATO, the Arab Union, the Arab League, and the U.N. to
the exclusion of the United States Congress, believing that if
he can get the blessings of one or more of those organizations,
he doesn't need the imprimatur of--or any input from the
elected representatives of this country.
What's bothersome is boots on the ground are not the test.
Drones in the air could wipe out a lot more than boots on the
ground. What's particularly bothersome is the day that
Secretary Clinton announced $20 million in non-lethal
humanitarian aid stressing that no weapons were being given to
the opposition, to Ghadafi. The very next day, the President
announced that he was sending in the drones.
This is ridiculous. Syria--more people have been killed in
Syria than all the other Arab nations together that are
involved in the Arab uprising this spring, and yet still with
the sanctions against Syria, it's nothing compared to what the
President has decided to do, unilaterally, on his own with
regard to Libya.
So, I commend the three of you. I'm looking for any and all
solutions so that the United States does not get involved in
these unilateral wars, unless absolutely necessary, and
pursuant to the terms of the War Powers Act.
Chairman Ros-Lehtinen. The gentleman yields back.
Mr. Sherman is recognized for 2 minutes.
Mr. Sherman. Thank you.
The State Department is working hard to bring the blessings
of democracy and the Rule of Law to every country, except ours.
Rome was built with legislative decision making. Rome declined
and failed under an Imperial Executive.
We probably should authorize some action with regard to
Libya. Although I've got a lot of questions the administration
doesn't need to answer, because they view us as irrelevant. But
any authorization should be limited as to time and scope so
that we can then pass additional resolutions with further
review.
Any authorization should be conditioned on the Libyan
rebels expelling from their midst those with American blood on
their hands, those who fought us in Afghanistan and Iraq. And,
particularly, the Libyan Islamic fighting group.
And, finally, I would want to see any resolution require
that this mission be funded by the assets that Ghadafi was
stupid enough to leave in the United States, which have been
seized by the U.S. Treasury.
The administration takes the extremist view that the
Executive can deploy any amount of American force anywhere,
anytime, for any purpose, for any duration, with any effect,
with only the most cursory discussions with a few Members of
Congress.
Worse than that, they won't even articulate that view, they
won't even acknowledge the 60th day, and the day on which they
began violating the law. But as the ranking member points out,
the fault is also here with Congress. So many of us would like
to evade the tough decisions. Democrats and Republicans know
how to vote on contentious issues because they come from
Democratic and Republican districts. But this is one that
crosses party lines, this is one that divides every one of our
districts, and a lot of people would just as soon duck the
issue. That's not our job.
We should put in every appropriations bill that the
expenditure of funds in violation of the War Powers Act
constitutes a theft of taxpayer money.
I tried with a few to get congressional leadership of both
parties to put in the CR that no money could be spent in
violation of the War Powers Act. We got no response. It's time
for Congress to step forward. It's time to stop treading the
U.S. Constitution in a presumed effort to bring democracy and
Constitutional Rule of Law to Libya. I yield back.
Chairman Ros-Lehtinen. Thank you, Mr. Sherman.
Judge Poe, the Subcommittee on Oversight and Investigation
vice chair is recognized for 2 minutes.
Mr. Poe. Thank you, Madam Chair. I appreciate other members
being here, especially those of you who have served in our
military.
There's no question about it, Muammar Ghadafi is a bad guy.
He's an outlaw. But there are a lot of rulers who are bad guys
and outlaws. Now, is it the United States omnipotent power and
decision making that we will trot around the world and
eliminate who we think, more specifically who the
administration thinks, is a bad guy, and has to go?
Abraham Lincoln said, ``Kings have always been involved in
impoverishing people in wars, pertaining generally, if not
always, that the good of the people was the object.''
Madison to Jefferson, ``The Constitution supposes what
history of all governments demonstrates, that the executive is
the branch of power most interested in war, and most prone to
it.'' And accordingly, with study care vested the question of
war with our legislature.
Washington, ``The Constitution vests the power of declaring
war with Congress. There is no offense expedition of importance
can be undertaken until after they've deliberated on the
subject, and authorized such a measure.''
Well, we have not authorized this war. The War Powers Act;
the administration has not complied with the War Powers Act.
Secretary Gates has said, ``This is not in our national
security interest that we drop bombs in Libya. Therefore, there
is no national emergency created by an attack on the U.S., the
territories, or our armed forces.''
So, the Constitution doesn't authorize it, the War Powers
Act doesn't authorize this war in the name of humanity in
Libya, and it is the responsibility of Congress and, I agree
with the ranking member, it is our duty as Members of Congress
to rein this war in and control the purse strings. And I don't
think it's appropriate for Congress to declare war after war
has already started. We should be involved before any war takes
place, including war in the name of humanity.
I will yield back my time.
Chairman Ros-Lehtinen. Thank you so much.
Mr. Chandler of Kentucky yields back. Mr. Rivera of Florida
is recognized for 2 minutes. He's out. Ms. Ellmers of North
Carolina is recognized for 2 minutes.
Ms. Ellmers. Thank you, Madam Chairman.
I just want to say that I'm very much looking forward to
the testimony that my colleagues are offering today. Thank you
so much for being here and for sharing this, and your service
to our country.
Chairman Ros-Lehtinen. Thank you. Ms. Ellmers yields back.
Mr. Burton of Indiana is recognized for 2 minutes.
Mr. Burton. I have the War Powers Act right here, and the
President has not complied with it. It says, ``The President in
every possible instance shall consult with Congress before
introducing United States armed forces into hostilities.''
If you read this thing, you know he violated the War Powers
Act. And today, I was watching television with--a new
conference with the British Prime Minister and the President,
and the President indicated we--he's talking about Libya, he
keeps saying, ``We are all together,'' and ``We are going to
continue to do this. We are involved in this conflict.''
He has received no authorization whatsoever from the
Congress of the United States, and it's in violation of the War
Powers Act and the Constitution.
Why are we not in the Ivory Coast? Thousands of people have
been killed or are being killed there. Why are we not in Syria?
You know, you could pick all kinds of places, as Mr. Poe said,
around the world where we could get involved if we wanted to
for humanity purposes, humane purposes. I mean, why don't we
just get involved everywhere?
The President is not a king, and he shouldn't act like a
king. The legislative branch of the Government of the United
States should be informed and involved in any decision that
involves military action. And we were ignored. We should not be
ignored, and I think that we ought to pull in the purse
strings, cut off the purse strings as quickly as possible
legislatively, and stop this thing, and leave it up to those
who want to fight a war over there.
Chairman Ros-Lehtinen. Thank you, Mr. Burton.
Ms. Schmidt of Ohio is recognized for 2 minutes.
Ms. Schmidt. Thank you, Madam Chair.
I'm glad that Congressman Burton pointed out the
significance of the War Powers Act, because, Madam Chair, as we
all know, on March 21, 2011, without consulting Congress,
President Obama committed troops to combat operations in Libya
as part of a coalition of nations seeking to prevent a
humanitarian crisis.
Today, sitting next to the Prime Minister of England, he
continued to say that we are going to be involved in this
conflict. Madam Chair, you know as well as I do, as well as
this great nation, that it has been 60 days since the President
has committed military action in Libya, and has yet to ask for
our permission.
My concern is three-fold. First, the security and the
safety of our troops. Second, the security and safety of our
nation. And, third, the economic cost of this conflict.
As Congressman Poe so eloquently said, as Congressman
Sherman so eloquently said, as Congressman Burton and everyone
else, practically, so eloquently said, there are many other
conflicts around the world that we could be involved in,
because they are harming their own citizens. Why did we pick
Libya?
We've never been asked for permission to do this. We are a
nation that has economic issues domestically. We have to
tighten our belt, and now are in Libya with no exit plan, no
strategy for winning. And I want to know what the cost is, both
economically, the cost to our military, and the security and
safety of our men and women on the battlefield, and the men and
women here at home. Thank you.
Chairman Ros-Lehtinen. Thank you, Ms. Schmidt.
Mr. Chabot, Subcommittee on the Middle East and South Asia
chairman is recognized for 2 minutes.
Mr. Chabot. Thank you, Madam Chair. First of all, I want to
thank you for holding this hearing. I also want to say
something that I don't say too often in this committee, and I
think the gentleman has just left, but I'd like to associate
myself with most of the remarks that I heard from the gentleman
from California, Mr. Sherman here. I have many of the same
concerns that he did.
One common characteristic that unites, or will unite many
of the questions that will be raised here today is just that,
that they're questions. The fact of the matter is that we're
sitting here today, we know far too little about the nature of
the operation in Libya. Even the most basic questions about
what our objectives are, or how exactly the administration
supposes that we will achieve them are completely unknown, have
been unrelated to the United States Congress.
No plans have been presented here. No time line has been
offered, no contingencies have been discussed. I'm left to
believe one of two possible conclusions; either the
administration has no plans at all, or they have not felt the
need to inform the United States Congress of them. Either way
that you cut it, we have serious problems on our hands.
It's ridiculous that Congress was not consulted before this
operation. But that aside, we need serious answers, and we need
them now.
I just got back from Iraq a couple of days ago, and Saudi
Arabia, and from Egypt about 1 month ago, and Israel, and the
Middle East is far too important an area, Northern Africa, as
well, for the administration to take action as it has in this
particular instance, and not include the United States
Congress.
And I believe that the administration would have gotten
considerable support from the Congress. We are, after all, the
representatives of the people. The people should have been
involved in this decision process. And, as I said, we need
answers, we need them now. And I yield back.
Chairman Ros-Lehtinen. Thank you so much.
Ms. Buerkle of New York is recognized.
Ms. Buerkle. Thank you, Madam Chairman. And thank you for
holding this very important hearing today.
I look forward to hearing the testimony from my three
colleagues. And I thank them for helping us to insure that the
American people are engaged and are consulted before we send
our men and women off in harm's way. So, thank you very much. I
very much look forward to hearing your testimony.
I yield back.
Chairman Ros-Lehtinen. Thank you so much.
Mr. Paul of Texas is recognized.
Mr. Paul. I thank you, Madam Chairman. I appreciate you
holding these hearings.
Since World War II, we've embarked in the wrong direction.
We've been fighting all these wars, and no declaration, so the
War Power issue is a key issue. And, hopefully, we can get to
the bottom of it, and expand this power.
But I think we get a pretty good idea about where the
executive branch comes from, and I'm not so sure it would be
unique for one party over the other. But the current Office of
Legal Counsel to our President has said that it was necessary,
it was okay to go to war to defend the credibility of the
United Nations Security Council.
I think that is an outrage. We're supposed to be defending
the Constitution, not the national--not the United Nations
Security Council. But this is not new. We did it in Korea, we
ignore it sometimes, now we ignore it in Libya. The War Powers
Resolution, which was set up in '73 was supposed to curtail
this.
Technically, it was deeply flawed, but it actually
legalized war for 60 days, which always drifts into 90, and
even our Presidents ignore that. So, this is a mess. And it's
not all that complicated. Why do we complicate this for
ourselves unless it's deliberate? Because we have a law, the
law is called the Constitution.
We're not supposed to go to war unless there's a
declaration. We've been fighting this a long time, and the
American people are sick and tired of it. It's draining us,
it's draining us financially. And now we're into--how many wars
are we in now; Afghanistan, Iraq, Pakistan, now Libya. We don't
even know to the extent to what--how much we're involved in
these countries.
So, we in the Congress demand, or should demand our
responsibilities again. It should be up to us when we go to
war, and not to the executive branch.
I yield back.
Chairman Ros-Lehtinen. I did not know if that was a
pregnant pause to lead up to a crescendo.
Mr. Paul. It was really pregnant.
Chairman Ros-Lehtinen. Thank you, Dr. Paul. And Mr. Smith
yields back his time.
And now we're so pleased to recognize our witnesses. Let me
introduce them. Congressman Justin Amash, who represents
Michigan's Third Congressional District, sits on the Budget
Committee, and on the Committee of Oversight and Government
Reform where he serves as vice chair of the Subcommittee on
Federal Workforce, U.S. Postal Service, and Labor Policy.
Mr. Amash is the author of H.R. 1212, the Reclaim Act,
which he will discuss with us this morning.
Also joining us is my friend, Congressman Tom Rooney from
Florida's 16th District, and he is the author of House
Concurrent Resolution 32.
In addition to his service on the Armed Services and Intel
Committees, Mr. Rooney is chairman of the Agriculture
Subcommittee on Livestock, Dairy, and Poultry. A former
Assistant Attorney General in Florida, Congressman Rooney also
taught constitutional and criminal law at the United States
Military Academy at West Point. Mr. Rooney also served in the
U.S. Army Judge Advocate General (JAG) Corps as an attorney.
And he's a University of Miami Law School grad.
Congressman Chris Gibson, welcome. He represents the 20th
District of New York. He serves on the House Armed Services
Committee, and the Committee on Agriculture. He is the author
of House Resolution 1609, the War Powers Reform Act.
In addition to holding a Ph.D. in government from Cornell
University, Mr. Gibson is a seasoned combat veteran, and a
retired colonel with the U.S. Army, who served four combat
tours in Iraq, was decorated with two Legions of Merit, four
Bronze Star medals, and the Purple Heart.
Thank you so much. It is an honor to have all three of you
with us today. As noted before, all of your statements will be
made a part of the record. And I'll ask you to summarize your
remarks.
And Mr. Amash needs to leave after his remarks, but
Congressmen Rooney and Gibson have agreed to stay and take
questions from our committee members.
So, we will begin with Congressman Amash, because he's got
other duties. Thank you so much.
STATEMENT OF THE HONORABLE JUSTIN AMASH, MEMBER OF CONGRESS
Mr. Amash. Thank you, Chairman Ros-Lehtinen, and committee
members for holding this hearing and inviting me to testify on
this important and timely topic. It's an honor to be here.
The Constitution vests Congress with the power to declare
war. We are at war in Libya. Either Congress must authorize our
strikes against Libya, or Congress must withdraw the use of
force. What Congress cannot do is to continue standing by idly
as our constitutional war powers are disregarded.
The founders distributed the decision to go to war between
the two political branches to assure that the decision will be
made carefully. The founding generation experienced the
hardship of several wars, and they knew wars' human and
financial costs. They understood that a strong Executive, who
is already given the title Commander-in-Chief, might flex the
country's military strength injudiciously.
Giving Congress the essential power to declare war allows
heads to cool, alternatives to be considered, and makes certain
there is consensus if the country is called to fight.
If Congress' authority to declare war has any content, at
minimum it must prevent the Executive from starting an
offensive war without Congress' consent.
President Obama once held this view. As a candidate, he
told the Boston Globe, ``The President does not have power
under the Constitution to unilaterally authorize a military
attack in a situation that does not involve stopping an actual
or imminent threat to the nation.''
In 1973, Congress codified this constitutional
understanding in the War Powers Resolution. The law allows the
President to introduce the armed forces into hostilities in
only three circumstances pursuant to (1) a declaration of war;
(2) specific statutory authorization, or (3) a national
emergency created by attack upon the United States, its
territories or possessions, or its armed forces.
Congress has not declared war or authorized use of force
against Libya. And, of course, Libya has not attacked us. The
undeniable conclusion is that the President is breaking the law
by continuing the unilateral offensive war against Libya.
The administration has tried to paper over its legal
actions by first consulting with Congress. The War Powers
Resolution does require the President to consult with Congress
in every possible instance before introducing the armed forces
into hostilities, and regularly during a military engagement.
I appreciate consultations as much as the next Member of
Congress, but letters and phone calls from the White House
cannot substitute for the constitutional requirement that
Congress act. With pressure from the public and some Members of
Congress building, the President signaled on Friday that he now
supports Congress' authorizing the war.
Anyone concerned about constitutional war powers should
read the President's letter to Congress carefully. The
President voiced support for a Senate resolution on Libya that
was not public at the time. However, the President stated,
``The purpose of the resolution was to confirm that Congress
supports the U.S. mission in Libya.''
Congress has passed almost no legislation regarding Libya.
We have not even approved supplemental funding for the $1
billion war, so I'm not sure why the President believes we
merely should confirm our support for the war.
Whether or not the President actually asked for
authorization of force, the larger question Congress must ask
itself is, why have we waited for the President's request? The
country has been at war for 67 days, and we have neither
authorized force, nor ordered force to be withdrawn. There is
no greater sign that Congress' constitutional muscles have
atrophied than the fact that we only became interested in
authorizing the war after the President told us to do so.
I wrote H.R. 1212, the Reclaim Act, to require the
President to obtain Congress' specific authorization before
continuing military action against Libya. My bill's requirement
of specific authorization tracks language in the War Powers
Resolution, and the Constitution's mandate that the legislature
and Executive agree before the country wages offensive war.
The President's orders to strike Libya are outlawed by the
War Powers Resolution. His unilateral decision to take us to
war violates the Constitution. The tragedy for our system of
self-government would be if Congress continued to do nothing.
Pass the Reclaim Act to require the President to obtain
congressional authorization before continuing the strikes.
Thank you.
[The prepared statement of Mr. Amash follows:]
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Chairman Ros-Lehtinen. Thank you so much, and we are
honored by your presence. We'll look at your legislation. We
understand you have other duties. Thank you so much.
So pleased to recognize my colleague from Florida, Mr.
Rooney.
STATEMENT OF THE HONORABLE THOMAS ROONEY, MEMBER OF CONGRESS
Mr. Rooney. Thank you, Chairman Ros-Lehtinen, Ranking
Member Berman, and members of the committee. Thank you for the
privilege to appear before you today, and for holding this
hearing.
As a former professor of Constitutional Law at West Point,
I have tremendous respect for our founding fathers and the
roles regarding military engagement they assigned to the
executive and to the legislative branches. I am not here to
debate the constitutionality of the War Powers Resolution, and
will leave that to the Supreme Court.
However, before discussing the President's adherence to the
War Powers, or lack thereof, I think it's important to discuss
the general concept of how the United States goes to war.
Article I Section 8 vests in Congress the power to declare
war, raise and support the armies, and to make all laws
necessary and proper for the execution of these powers, while
Article II Section 2 establishes the President's role as
Commander-in-Chief. The framer's intent is clearly for two
branches to work flexibly and in tandem.
Congress' true check on Executive authority is its power of
the purse, and raising of armies. I think it's fair to say the
United States would not have a military for the President to
command without the structure and funding that Congress
authorized to create it.
Now, let's fast-forward to November 1972. The opposition to
the war in Viet Nam was at its height, and that year's election
brought a Democratic Majority to the both chambers. The
following year, Congress passed the War Powers Resolution
overriding President Nixon's veto. Operating under its
constitutional authority, Congress essentially asserted, ``If
you're going to go to war and send our troops into harm's way,
you need us and the American people on board.''
Thus, if the President and Congress must agree on war
fighting, then the United States will enter into fewer wars,
and the conflicts we do enter will only occur after sufficient
reason and deliberation.
The War Powers Resolution requires the President to notify
Congress within 48 hours of committing armed forces to military
action, and forbids armed forces from remaining for more than
60 days without an authorization of the use of military use, or
a declaration of war.
When President Obama first announced his decision to join
our NATO allies and intervene in Libya, he operated within War
Powers, and notified Congress of that decision within 48 hours.
However, on May 20th, 2011, Day 60 of the United States'
engagement in Libya, the President waited until late in the
evening to send a letter to Congress in a futile attempt to
obtain our support for the efforts in Libya. The President
again refused to make his case to Congress, requesting we
simply endorse a carte blanche resolution supporting limited
efforts such as this in Libya.
Obama's intent to engage is clear. Outlined in an April
memo out of the Department of Justice, the administration
argued that the hostilities are of limited nature, scope, and
duration; and, thus, do not rise to the level of war. Instead,
the administration preferred to describe our engagement with a
more redundant euphemism, ``kinetic military action.''
Neither the War Powers Resolution, nor the Constitution
provides any illusion that if an act of war is small, or led by
NATO, then it is not an act of war. This flies in the faces of
Obama's own words, as Representative Amash previously stated
when he said in 2007, ``The President does not have the power
under the Constitution to unilaterally authorize a military
attack in a situation that does not involve stopping an actual
or imminent threat to the nation.'' To date, it has been 65
days since the President has been acting unilaterally without
Congress, 5 days longer than permitted by law.
My bill, House Concurrent Resolution 32, expresses the
sense of Congress that the President should adhere to the War
Powers Resolution, and obtain specific statutory authority--
authorization for the use of United States armed forces in
Libya. My resolution does not speak to whether or not military
action is or is not warranted. It may very well be, but rather
that the President make the case to Congress to allow the
Congress to debate it; and, thus, determine at some point if we
are on board.
What we're asking for is simple, that the President respect
our role in the spirit of the Constitution, the separation of
powers, and the Rule of Law.
Thank you for this opportunity to discuss my legislation,
and I welcome questions the members may have.
[The prepared statement of Mr. Rooney follows:]
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Chairman Ros-Lehtinen. Thank you so much, Mr. Rooney.
Mr. Gibson.
STATEMENT OF THE HONORABLE CHRISTOPHER GIBSON, MEMBER OF
CONGRESS
Mr. Gibson. Well, I'd like to begin by thanking the
chairwoman, the ranking member, and members of the committee
for holding this hearing. I sincerely appreciate the
opportunity to come before the committee to address what I
believe is a pressing issue facing our country today.
While the debate over Presidential war powers has
resurfaced as a result of the ongoing operations in Libya, as
those assembled here today know full well, the ambiguity
surrounding this issue has been the source of controversy for
decades despite, and perhaps in spite of the War Powers Act
passed over the President's veto in 1973.
While it is somewhat encouraging that in recent days the
President has taken steps to obtain congressional approval,
it's unclear why he waited until the 60-day period had passed,
and why he sought approval from several international
organizations prior to the mission, but failed to consult or
seek statutory authorization from Congress.
In view of the War Powers Act, I believe the President's
actions are on dubious constitutional grounds, but I want to be
clear. This is not a new phenomenon. Presidents from both
parties have been on dubious grounds with regard to the War
Powers Act, perhaps not surprising given that no President
since its enactment has acknowledged its constitutionality.
It's time to bring clarity to the situation, and to resolve
the matter of Presidential war powers.
As a student of history and former professor of American
Government, I frequently turn to the Federalists Papers, the
notes on the Constitutional Debate, and the Constitution,
itself, to derive the intent of the founders. It is my belief
that the founders envisioned a shared role between the
executive and legislative branches with regard to war making.
Ever concerned about unchecked power, especially unchecked
Executive power, the founders vested in the Congress the power
to declare war. The American people would have say in the
solemn decision on the use of force through their duly elected
representatives, Federalist Paper 69.
The founders also envisioned energy in the Executive,
Federalist Paper number 70, and the ability to defend the
country, and to lead our armed forces in time of war by
investing in the President the responsibilities of Commander-
in-Chief.
As political scientist and Presidential historian, Richard
Neustadt, noted, ``The founders set up a constitutional design
where separate institutions share power.'' Since World War II,
and in part a result of the Cold War, the existential threat
from the Soviet Union and the specter of nuclear war, over time
these war powers have accumulated in the executive branch, this
recent operation in Libya, being only the latest example of
executive fiat.
It's time to restore balance to the executive-legislative
branch relationship, and bring back in the voice of the
American people on matters of war and use of force. It's time
to reform the War Powers Act.
Recently, I introduced legislation that fundamentally
amends the War Powers Act. My bill, H.R. 1609, which currently
has 12 cosponsors, including two distinguished members from
this committee, Mr. Burton and Mr. Johnson, the War Powers
Reform Act seeks to restore the founders' intent by clarifying
when the President has the authority to deploy our armed forces
into hostile circumstances.
This bill empowers the President to act under the following
circumstances; declaration of war, specific statutory
authorization from Congress, including obligation under treaty,
a national emergency created by attack or imminent threat of
attack upon any of the United States, its territories or
possessions, or its armed forces.
The most significant provision in my bill is a new section
regarding the limitation on the use of funds. In none of these
foregoing--if none of these foregoing circumstances are met,
the President may not obligate or expend funds to deploy the
armed forces of the United States. The 60-90 day provisions in
the current War Powers Act are deleted.
Over the years, these provisions have proven vague,
ineffective, and counterproductive to the intent of the War
Powers Act. This new provision regarding prohibition of funds
provides a much needed enforcement mechanism and reasserts
congressional authority in both authorizing funds, as well as
making war.
As seen in the current operations in Libya, the Executive
currently has the ability to cost-shift with funds already
appropriated, and then subsequently reprogramming or requesting
funds after actions are complete. The administration's ability
to do so denies the American people their voice in authorizing
military action.
Among other new provisions added by my bill, Section 2(c)
of the War Powers Act is amended to allow Presidential action
if the nation is under imminent threat of attack, something
absent in the original bill. In this instance, imminent threat
is defined as credible intelligence that a hostile force is
about to attack our country.
Other changes to the War Power Act include the elimination
of antiquated reporting requirements, which are no longer
needed, because the Executive would be prohibited from acting
without first seeking congressional authorization.
Finally, the War Powers Reform Act contains an exemption
for the State of Israel in the event that they are attacked.
Thus, in essence, a vote for this bill is tantamount to
providing the Executive with the authority to defend one of our
closest and most vulnerable allies.
To date, the United States does not have a Senate confirmed
mutual defense treaty with Israel. While it is virtually
impossible to foresee events and threats in a constantly
evolving world, the need to immediately defend one of our
greatest partners is one we can envision.
In conclusion, while this bill responds to the situation in
Libya, the broader intent is to restore balance to the
executive-legislative branch relationship on matters of war
power.
Regardless of where you stand in relation to the operation
in Libya, you should support this bill to insure the American
people have a say regarding when this nation goes to war.
I look forward to dialoguing with the committee, and I urge
in the aftermath of this hearing that you move to markup on
this bill. I'm certainly open to amendment, and look forward to
your thoughts on that score. Our country needs the War Powers
Reform Act.
Again, thank you for the opportunity to be with the
committee, and I look forward to your questions and comments.
[The prepared statement of Mr. Gibson follows:]
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Chairman Ros-Lehtinen. Thank you very much, Mr. Rooney, and
Mr. Gibson. And I will start the 5-minute question and answer
period.
The U.S. deployment to Libya did not fall within one of the
situations authorized by Section 2 of the War Powers
Resolution. They were not undertaken pursuant to, (1) a
declaration of war; (2) a specific statutory authorization, or
(3) a national emergency created by an attack on the United
States.
Do you agree with those who assert that the Obama
administration is claiming unprecedented prerogatives in the
use of U.S. military force even beyond those asserted by the
prior administration?
And on that same theme, would your position differ if the
President had acted pursuant to either, (a) a declaration of
national emergency due to the threats to U.S. interests posed
by the Libyan regime, or (b) an Executive Order?
Is the concern that he acted to enforce the ``Writ of the
International Community,'' or to implement the pertinent United
Nations Security Council Resolutions? Mr. Gibson.
Mr. Gibson. My concern, very succinctly put, is that the
President did not come here first for authorization for any
kind of military action in Libya.
I would also tell you that, in my view, it is not
unprecedented. In fact, particularly since Korea, we've seen
Presidents do this. And we've seen it on both sides of the
aisle. Take a look at President Bush, Sr., and his actions in
Panama, take a look at the No-Fly Zone after the Persian Gulf
War, when he implemented that without congressional authority.
And, also, President Clinton, in terms of prior authorization
before commencing operations in the former Yugoslavia.
So, I want to be clear that what I'm not looking to do here
is begin a political witch hunt. What I want us to do is, from
the perspective of Congress, is to bring clarity to the
situation. I want to see us reform the War Powers Act so going
forward we can bring clarity to this situation.
This current situation really helps no one. You've got a
situation where the Executive is saying we don't need
congressional authority. It's certainly not helping our
country. I would think that a President, regardless of party,
would welcome bringing clarity to the situation with a bill
that Congress, both sides of the aisle, should work with the
administration to bring that kind of clarity.
I think it's important to note the historical examples.
Look at the founding era. With regard to what the founders said
in those founding documents, certainly, the Constitution, the
Federalist Papers, the notes on the Constitution, and
importantly how they lived their lives in that first generation
after the enactment of these key seminal documents.
Look at 1798, when we were engaged in what President Adams
said was a war with--essentially needed to take military action
against France for what they were doing on the high seas. He
came to the Congress for authority. He requested authority, a
Federalist, somebody who believed in expansive government view.
And then you look at President Jefferson, somebody with a
more limited view. In 1802, when he took action against
Tripoli, he felt it was necessary to come to the Congress to
first get authorization.
I think it's important to note in neither of these cases
did we declare war. So, the notion that only time military
forces can be used is a declaration of war, doesn't comport
with the history of the first generation of our leaders after
the enactment.
So, that's what I would tell you, Madam Chairwoman, that I
think we need to bring clarity to the situation. I don't think
it's unprecedented, but I do think it's the Congress' role now
to take action going forward so we can strengthen our country.
Chairman Ros-Lehtinen. Thank you, sir. Mr. Rooney?
Mr. Rooney. Yes, I would agree. I think that, certainly,
it's not unprecedented. What Congressman Gibson has said with
regard to Kosovo, Haiti, we've heard even similar language that
the President is using right now with welcoming Congress'
suggestions, like we're a suggestion box. As rude as that might
sound, it's the same exact language that President Clinton used
before going into Haiti, or Kosovo, so the question really is,
do we want to keep operating under this, us versus them
mentality where the Supreme Court has had the opportunity to
weigh in before, and really hasn't with this issue. So, it's
really on us, I think, as was said, to clarify.
With regard to the other part of your question, in cases of
emergency, I think in accordance with the War Powers
Resolution, certainly, the courts have said that the Commander-
in-Chief does have a responsibility to act as our point man in
national security issues when it's unreasonable to assemble the
Congress fast enough to deliberate and get a declaration of
war.
You know, there are situations where things happen in the
middle of the night in Abbottabad, Pakistan, where he needs to
send in the seals, and we might not be able to get together
quick enough to successfully pull that off. That's where the
War Powers Resolution comes in saying fine, now you have 48
hours to notify us, 60 days to let us get our arms around it,
debate it, whether or not we're on board, as I said in my
testimony, or not. And it not, then you have 30 days to
withdraw.
So, I think that the emergency provision is fine. I just
think that we're sort of operating in this gray area right now,
and it's our responsibility to figure out if we're going to
keep doing that for the future, or change it.
Chairman Ros-Lehtinen. Thank you very much, gentlemen. I'm
pleased to recognize Mr. Berman for his questions.
Mr. Berman. Thank you very much, Madam Chairman. And I go
back to a point I made in my earlier comments.
There is an aspect of all of us here that's somewhat
hypocritical on this issue. And Mr. Gibson's bill, at least--I
mean, the sense of Congress stuff does not fundamentally
address the issue. I gather Mr. Gibson has a bill that says
we've been acquiescing, we in Congress, since at least the
Korean War, although I'm not sure that we didn't take some acts
of war against the Barbary Pirates off Libya before the
Congress ever approved that, even under Jefferson. In
Jefferson's time, if I recall, there was some later
congressional action. But at the time, I'm not sure he didn't
do some--authorize some of our Navy, and direct them to do
certain things that could be called acts of war before the
Congress spoke. But we certainly have acquiesced since the
Korean War.
And I take it Mr. Gibson's bill is less about Libya than
making sure there are no more Libyas, or Panamas, or Grenadas,
or Haitis, or Koreas, or Vietnams without a process by which
the Congress has spoken at a certain point.
I am curious, so again I go back to this point. I was on
the conference call, my chairman may have been, as well. I'm
trying to recall exactly, when the President in response to a
question from Senator Lugar said prior to the commencement of
operations in Libya, that he thinks the limited role the U.S.
will be playing is within his ``Article II'' powers. Not a lot
of challenge on that call, except perhaps from Senator Lugar to
that assertion. But that's the way he viewed it. And I know
what he and others have said before they became President, and
what they've done since President. And Congress has acquiesced.
We passed a Fiscal Year 2011 appropriations bill that
didn't contain any provision to cut off funding, or to cut off
funding if no authorization is made within 60 days. There is a
DOD bill now on the floor. I'm unaware of any amendment to that
bill that has been made an order that cuts off funding for the
Libya operation. I'm unaware of the people who control the
agenda in the House setting either a resolution to authorize
the use of force, or to cut off funding. So, before we point
too many fingers at anybody else, we have to decide how much we
want to take up.
The question, I guess, I have, I'm intrigued by
Representative Gibson's bill. In effect, are you saying that
where we have a mutual defense pact, we have preauthorized the
use, in a sense, the authority to engage in hostilities without
a congressional action to determine whether the facts of those
hostilities do exist and, therefore, meet the terms of that
treaty? Because you do seem to have an exemption for your
cutoff both for Israel in one section, and for countries with
whom we have mutual defense treaties.
Mr. Gibson. Well, I thank the ranking member.
What I doing is putting a highlight in an area that I don't
think the American people fully recognize, is that between 1947
and 1960, we entered into seven defense agreements where we,
the American people, gave our word.
Now, when you look at the details of the treaties, for
example, NATO, it does say consistent with the individual
country's constitutional provisions. So, one would expect that
the administration would still come back here for
authorization. But what I'm trying to raise our level of
consciousness is that even though we would have a vote in
accordance with our constitutional provisions we, the American
people, gave our word that we were going to be involved in a
defense pact.
Now, this really gets back to the founding. The founders
provided stipulations for treaties and for trade agreements.
They put stipulations in there. Our first President warned
against the entanglements of treaties, but he never questioned
the constitutionality of it.
So, the short answer to your question is that there would
still be an authorization of force, but think about what that
vote would mean. Think about what that vote would mean for a
second, because we, the American people, gave our word. And I
have the seven treaties, if the committee is interested in
hearing--reviewing that for the record. But in previous times,
leaders invested with our powers have given our word, so I'm
just bringing that to light, because I think that needs to go
into the conversation.
You know, I----
Mr. Berman. And the basis for the Israel exemption, where
we don't have that treaty?
Mr. Gibson. Well, here's the thing with regard to that
question, is that when you look at the current situation here
in Israel, among our very closest allies in a precarious
situation, and that we can't foresee all situations in the
world.
What I'm saying is a vote for this bill is tantamount to
the American people telling the Executive that we give our
consent, that if Israel is attacked that you would have the
authorization to move. So, the key point here is process.
MR. Berman. All right. Then let me just follow that up. And
what about the situation where if we don't act, there is a
genocide, there is a massive humanitarian catastrophe, a
disaster that could involve thousands, or tens of thousands, or
hundreds of thousands of people dying, should we pre-approve
that situation? I mean, part of the logic of Israel is the
never-again notion. Should that be incorporated into the
standard?
Mr. Gibson. I would say that the key thing to know about my
bill is to know that it engages the American people in a
conversation, their representatives.
Mr. Berman. That's what I'm trying to do, is have the
conversation.
Mr. Gibson. Well, that's right. So, the only thing I'm
stipulating in this bill is to move to defend the people of
Israel. Beyond that, because that's a discussion we can have at
the same time we're working our way through this bill.
But with regard to any other actions, that's something that
the Congress would need to be involved with, not pre-approving,
but involved in discussions.
MR. Berman. Well, let me make sure I understand then. Your
bill doesn't negate the obligation for the authorization, but
what it does is, in situations not exempted provide for the
automatic cutoff of funds. Is that a----
Mr. Gibson. What this bill----
Mr. Berman. Absent an authorization.
Mr. Gibson. What this bill says, sir, is that only in
certain circumstances may the Commander-in-Chief move. If he
does not have authority, he has to come here for authorization,
or he can't obligate or expend funds.
Mr. Berman. But the War Powers Act, this doesn't--your bill
doesn't repeal the War Powers Act. The War Powers Act gives the
President in certain limited circumstances the authorization to
make war for a limited period of time under those conditions if
he meets certain requirements.
Mr. Gibson. Thank you for asking that question, and to
allow me to clarify. This reform act eliminates those portions
of the War Powers Act. So, the 60-90 day, I think that that's
been counterproductive. I think that's added to the confusion
of the situation.
What this reform act says is the President either has
authority to move, or he's to come here to get that authority.
And if he doesn't have that authority, then he may not obligate
or expend funds.
MR. Berman. And, so, if I want to create some conditions
that you--beyond those where you've already given authority,
then the argument to take your bill and amend it to include
those situations, or if I don't agree with what you've
exempted, to get rid of your exemptions.
Mr. Gibson. That's a discussion we could have, absolutely,
we, the Congress.
Mr. Berman. Yes. Thank you.
Chairman Ros-Lehtinen. Thank you very much. Mr. Rivera is
recognized.
Mr. Rivera. Thank you, Madam Chair, for both panelists. I'm
intrigued particularly because of your military experience to
inquire as to what you think the difference is over history in
terms of the practicality of being able to execute war. Warfare
has changed a lot since the time of Adams and Jefferson, and
what risks possibly could be posed or how you would respond to
those that would critique your proposals by potential risk to
our national security, because of expedited time frames,
perhaps, that could occur in terms of jeopardy to our troops,
in terms of having a drawn out conversation or discussion about
some of these national security matters, or military matters.
How do you respond to those that would raise those issues?
Mr. Gibson. Well, I thank the gentleman for the question.
It's certainly something near and dear to my heart. After
serving our country in uniform for 24 years active, and 29
years total counting the National Guard when I was in high
school and college, it's something I'm firmly committed to, now
and all days forward.
But I would also tell you that what this bill does is we
put in the reform act the clause, the imminent threat of
attack. We put that in there so the President can respond to
emerging situations to protect our country. Now, keep in mind
that the founders also looked at these issues, and they
certainly expected that the Commander-in-Chief would be able to
be empowered to repel attack, to take actions to protect the
homeland. So, I would tell you that.
And I think, also, with regard to the ranking member,
something you mentioned earlier, it's important to note that
when President Roosevelt came here to the Congress on the 8th
of December, when he reported to the Congress he said, ``I have
taken actions already consistent, as the Commander-in-Chief,
and I ask that the Congress declare that a state of war
exists.'' So, I think it's important, because there's a
recognition there that the Commander-in-Chief has a role, but
so does the people, their representatives have a role by coming
and declaring war.
Now, that's the first thing I would say, sir. And then the
second thing I would say is that in particular circumstances,
the Congress comes together to either authorize or not
authorize action. In this case here, in this current conflict,
we have authorized. We have authorized military actions against
those who planned, coordinated, and conducted the attacks
against our country on the 11th of September. So, there's an
authorization already from the American people by way of their
representatives to conduct such operations, such as the one
that occurred in Abbottabad, Pakistan, as we went after Public
Enemy Number One, the mastermind, the commander of the forces
that attacked our country.
Mr. Rivera. Mr. Rooney?
Mr. Rooney. When I was referring to Abbottabad, it was
simply as an example of how things, but you're absolutely
right. I would certainly put that within the jurisdiction of
that authorization. But with things that would occur around the
world that might not fall within the jurisdiction of that
authorization, which I think is what you're sort of referring
to, absolutely.
I have to say to Colonel Gibson, I haven't read his bill,
so I don't want to speak to it. I'm simply speaking from my own
resolution, which I know, sir, that you think that it's
continuing to act hypocritical, or a sense of Congress self is
just acquiescing. I've been here for 3 years. This is the first
time we've gone into this territory since I've been here, and
we're introducing a resolution. So, hopefully, you don't think
that's acquiescing.
We're trying to, I think, do what the people sent us here
to do, and that's to follow the Rule of Law, which as the
Commander-in-Chief, the President of the United States, his
primary goal is the chief law enforcement officer. So, if he
ignores the War Powers Act, as other Presidents have, my
question that I look in the mirror and say, what are you going
to do about it, which results with this resolution? So, I would
get back to also, though, I do believe that the 60--we could
amend 60-90 day however, but I do believe, and this might be
counter to what my colleague here, his proposal is saying, I
think. I do believe that there are circumstances where the
President, as Commander-in-Chief, should have the authority in
the middle of the night to make a decision where he might not
be able to get congressional approval. And I think that the War
Powers Resolution addresses that by saying, but within 60 days
it should be plenty of time to get our authorization to
continue, and to get us on board. And I think that--my
resolution simply says that, to adhere to the Rule of Law as it
exists.
I think that the gentleman from New York goes beyond that,
and I can't speak to that. But I certainly would be open to
that, but I'm simply saying the law that we have now is being
ignored. The Congress' role is basically irrelevant now unless
we do something about it, and that's why I think that my
resolution would request the President to adhere to the Rule of
Law.
Mr. Rivera. Mr. Gibson, did you want to follow-up?
Mr. Gibson. Thank you very much. I do, very quickly. I just
wanted to assert beyond any shadow of a doubt that I absolutely
do believe we need to go further. We have specific limits of
authorization that are in the reform act, and that beyond that,
if the President wants to act, he must come here. And we tie it
to obligation in expending of funds. That's really the point.
The point is that I think that there is enough
authorization here for the Commander-in-Chief to act to defend
us, defend our country. But beyond that, we should be involved.
The American people should have a say, so if it's not an
imminent threat to our country, if the President wants to move
in the middle of the night, he's going to have to wait until he
comes to the American people by way of their representatives
first.
Chairman Ros-Lehtinen. Thank you very much. Thank you, Mr.
Rivera. Mr. Connolly of Virginia.
Mr. Connolly. Thank you, Madam Chairman, and welcome to
both of our colleagues.
Let me ask, our colleague, Mr. Paul, made the point in his
opening statement that the War Powers Act in some ways dilutes
the constitutional role of Congress in exercising its war
powers. Doesn't he have a point?
Mr. Gibson. Sir, to the degree that we have ambiguity on
the 60-90 day colloquy that just occurred moments ago, I'd have
to agree. And that's part of the reason why I'm trying to bring
clarity to the situation.
With regard to the issue, must it be a declaration of war
or an authorization of force, what I would say, sir, is that
you look at the first generation of leaders, those that were
there in Philadelphia in that hot summer, those that came to a
final compromise on what the Constitution would contain, those
leaders who led us, they, themselves in 1798 and in 1802, they
went with an authorization for the use of force rather than a
declaration of war.
And in one case, the President even asked for a
declaration, and the Congress gave him an authorization. So, I
would tell you that I'm comfortable with laying out these
details, which are the declaration of war, the specific
statutory authorization, or an emergency created by an attack
or imminent threat of attack.
Mr. Connolly. The evolution of this issue is a fascinating
one, because the executive branch argues that there are
virtually--well, they argue there are lots of inherent powers,
constitutional inherent powers contained in the reference in
the Constitution to the President's role as Commander-in-Chief.
Are there inherent powers, do you think, in the War Powers
of Congress in the Constitution? I mean, if there are inherent
powers in one, why aren't there inherent powers in the other?
Mr. Gibson. You pose an interesting question. And I think
that the key here is the notion of a countervailing balance
here that this is really meant to be a dialogue between the
legislative and executive branch. So, we really perform checks
on each other by including the legislative branch. And I think
it's important to note on this score that it's not just Adams,
John Adams and President Jefferson, it's also President
Eisenhower in the post World War II period. President
Eisenhower was taking--he foresaw the possibility of having to
react in then Formosa in the Suez, and he came here to the
Congress to ask for authorization for that. So, there is a
sensitivity by President Eisenhower that he could not by fiat
take us to. Just as--so the Congress then had to be
participating in this.
Mr. Connolly. Let me, if I may, Congressman Gibson, because
I'm actually pretty sympathetic to your point of view. But are
there not, as Mr. Rooney indicated, going to be some
circumstances, though, in which practically we've got to allow
the President to deploy troops and come to us after-the-fact? I
mean, I think Mr. Rooney cited, dead of the night, Congress is
not in session, and there's a real threat.
Now, let me pose some hypotheticals to you. The President
decides that we just need to intervene in a civil war in
Central Africa. Under the terms of your proposed legislation,
he would have to come to Congress before he could do that.
Mr. Gibson. That is correct. Unless a country or there was
an imminent threat of attack that was coming from a country
there, then the President would be authorized to move in his
capacity as the Commander-in-Chief.
Mr. Connolly. All right. But let's say there is an imminent
threat to a NATO ally that we're sworn to protect and defend,
Country X decides to invade a NATO ally in Central Europe, is
the President under the terms of your legislation allowed to
respond to that threat and come to Congress subsequently?
Mr. Gibson. He would come here first before responding. And
I would remind the----
Mr. Connolly. Wait, wait.
Mr. Gibson. Go ahead.
Mr. Connolly. That is problematic, it seems to me. I mean,
I understand the intent, and I'm not unsympathetic with the
intent, but practically speaking, we have an ally that can't
wait. Their borders have been breached, perhaps even superior
force brought to bear. The President hasn't got a lot of time
in which to come up to Congress and draft legislation, and have
us debate and pass or not pass a resolution of authorization.
It may be overtaken by events by the time we get around to it.
So, surely, it's reasonable in that set of circumstances,
is it not, that we'd want to give more leeway to the President
to exercise his executive authority?
Mr. Gibson. I would--first of all, very thoughtful
question. I would also bring to the fore here the fact that in
the aftermath of the 11th of September, we had the first draft
for the authorization of use of force on the 13th and the 14th.
The first vote took place in the Senate on the 14th, and by the
18th of September it was the law of the land that the President
was authorized to move.
Having conducted operations, as part of my military
experience, I commanded the Global Response Force for the
United States, for the Army's component of the Global Response
Force, and we were on, essentially, an 18-hour--at the most
heightened state of alert, we were on an 18-hour string
prepared to go wheels up anywhere around the world.
And I will tell you that inside the planning cycles that it
would take to conduct joint operations, there is time for the
Congress to deliberate and to give its consent.
Mr. Connolly. Well, Madam Chairman, I don't know that the
clock is working, and I don't wish to impose. My clock still
says I have 5 minutes. But if I may just say, I really--I want
to thank our two colleagues for a very thoughtful contribution
to this debate. And I find myself on common ground with our
colleague, Mr. Paul, on the fact that, frankly, with whatever
intentions, let's assume they were all good, I think the War
Powers Act, by even acknowledging there's a statutory need to
codify our powers in the Constitution, has had the unintended
effect, perhaps, of enhancing the Executive's powers directly
at the cost of Congress. And that, frankly, for an awful long
time, we have abrogated our responsibilities constitutionally.
And, from my point of view, the Executive has encroached and
expanded beyond the giggle test its powers pursuant to the
Constitution in this regard.
I think there are practical issues we're going to have to
work out, but I think Mr. Gibson, Mr. Paul, and Mr. Rooney all
have a point, and they're going to find me sympathetic as we
move forward.
Thank you, Madam Chair.
Chairman Ros-Lehtinen. Thank you so much. Ms. Ellmers of
North Carolina is recognized for 5 minutes.
Ms. Ellmers. Thank you, Madam Chairman. Thank you, again,
for being here today. This is a wonderful exchange of
information on an issue that I would characterize as being very
gray.
I do want to ask you directly, though. I know we've talked
about the Libyan situation, and we've talked about other
situations where the War Powers Act has been put into effect.
Do you believe that the President had the authority to do what
he did in Libya? And I'll ask both of you that question. Do you
believe that the Libyan situation, basically, adhered to the
War----
Mr. Gibson. No, I do not.
Ms. Ellmers. Okay.
Mr. Gibson. Not only on the front end, but even now. Let's
look at the specific language from Public Law 93148, which is
the War Powers Act. It says this, because this is a matter of
fine point precision. We're talking 60 days here. This is what
Section 5B says:
``Within 60 calendar days after report is submitted or
is required to be submitted pursuant to Section 4A,
whichever is earlier, the President shall terminate any
use of United States armed forces with respect to which
such report was submitted or required to be submitted
unless the Congress has declared war, or has enacted a
specific authorization for such use of United States
armed forces, has extended by law such 60-day period,
or is physically unable to meet as a result of an armed
attack upon the United States.''
Okay. So, it's not so much that the President came here on
the 60th day. According to the letter of the law, if we don't
act within 60 days, the President is to cease operations. And
we're not in compliance.
Ms. Ellmers. And we've already met that 60-day marker right
now, and yet we have nothing going forward.
Mr. Gibson. We have surpassed the 60 days, and Congress has
taken no action to authorize the force. To be in compliance
with the War Powers Act, we would have to cease operations.
Now, if the President requests, we can then provide
stipulations on that withdrawal. We can actually give 30, 60,
we could actually authorize how many days we think are prudent
to make an orderly withdrawal.
Let me also just conclude by saying that this is the
current law. I think we should move--I think we should delete
these portions. I think we should either have authorization,
the President either has authority to move, or he doesn't. And
if he doesn't have authority to move, he comes here. If he
thinks it's that important he comes here, and the American
people give their blessing with stipulations, as the Congress
may see fit, and then we go forward. But to do--but to not do
so really leaves open this ambiguity.
This is what Mr. Connolly is referring to, is that the
current War Powers Act as written really provides so much
ambiguity as to expand the powers of the President. And that's
why we need the reform act, is to bring balance back to the
situation in line with the way the founders intended, for the
legislative and the executive branch to interact on these
solemn matters.
Ms. Ellmers. Thank you, Mr. Gibson. Mr. Rooney?
Mr. Rooney. I, too, am apprehensive about thinking that
Libya was justifiable. But according to my resolution, I can be
convinced that it was the greatest idea in the world. But the
problem is that we've never had the debate.
Ms. Ellmers. Right.
Mr. Rooney. And the President and the administration needs
to come here and say more than just we welcome your support.
So, my predisposition is no, but I'm open to suggestion. But
you're right, the 60 days has come and gone, and just to add on
to--in the past, there's been Members of Congress who have sued
and gone to Federal Court to say that you're in violation of
the War Powers Resolution, and the Constitution, and it's made
its way to the Supreme Court without it being heard directly on
point, that we, or those members that did sue lacked standing.
So, that adds to your idea of we're operating in a world of
gray, and possibly legislation like Mr. Gibson's would clarify
that. But all I'm saying is that if he really thought that
Libya was important, and he would have come here within the War
Powers framework of 60 days, he may very well have gotten the
support of the Congress, but he didn't do that.
Ms. Ellmers. Thank you very much. Yes, please, Mr. Gibson.
Mr. Gibson. Thank you for the opportunity just to follow-
up. I just want to agree with my colleague here that it's
certainly an arguable point, the one that I made. I mean,
that's my read of the current law. It has been debated in other
places, and there have been positions, and there have been some
court cases related to this. This is one of the reasons why I'm
not asking today that we take sanctions against the President.
I think it's our responsibility to fix this. The ambiguity
that exists has been exploited by Presidents on both sides of
the political aisle. And in a time that we need to create jobs,
balance the budget, and protect freedoms, now is not the time
to be diverting into other matters, other matters in terms of
any kind of proceedings on whether or not the President is not
in concert with the law. That is not my purpose here today.
What I want to do is fix this going forward so we don't end up
back here at this very same spot.
Ms. Ellmers. Thank you very much for your testimony, and
thank you for your comments.
Chairman Ros-Lehtinen. Thank you, Ms. Ellmers. I am pleased
to yield to Mr. Burton of Indiana, the chairman of the
Subcommittee on Europe and Eurasia.
Mr. Burton. I think one thing that needs to be clarified is
that an attack on NATO, a member state, has the--a NATO member
state has the right to respond to an attack, and the treaty
obligates the other members to support the attacked member. So,
under the treaty we have right now, NATO, attack on one is, in
effect, attack on all. And we would respond.
Mr. Gibson. Well, sir, there's also a stipulation in there
to make sure that it's in concert with the provisions of the
constitution. And one would expect that just as President
Roosevelt did on the 8th of December, that consistent with all
foregoing understanding of the treaty and current law, that the
President would come here for authorization.
Mr. Burton. Yes, well, I have no problem with that. But the
point is, the President would have the ability immediately, if
necessary, to respond and then get to the Congress as quickly
as possible.
Mr. Gibson. The gentleman raises a good point. And what I
would say to the chairwoman is that this should be something
considered in markup in terms of what kind of clarity.
I happen to have a different view, but it appears that Mr.
Burton and Mr. Connolly have different views. I think the
important thing is that the American people are engaged.
They're engaged right now that we're having this discussion,
that their representatives are having this discussion.
Mr. Burton. I'm a cosponsor of your bill, and that's one of
the questions I have. Maybe you and I can talk and get some
clarifying language that we could put into it in the markup.
The other thing that concerns me is, it says in Section 3
of the War Powers Act, it says, ``The President in every
possible instance shall consult with Congress before
introducing U.S. armed forces into hostilities.''
Now, in Libya it was not something that had to be done like
that. It was something that France, England, and the United
States discussed, NATO was not involved at that point. And the
President had every--had completely enough time to come to the
Congress and discuss this. And Section 3 of the War Powers Act
is very clear, and he did not comply with that.
Now, the question arises what about when we're out of
session? If it's important enough for us to commit troops or
our resources to a conflict, all the President has to do is
contact the Speaker of the House, the Majority Leader of the
Senate and say I need to get these guys back here right away.
And within 24 or 48 hours, we could be back here to discuss in
total the whole issue.
So, I don't think that the President had the authority to
go into Libya, and when I watched the remarks that he made
today with the Prime Minister of England, it sounded like, to
me, that he had made a decision that we were all in this
together, we were committed to this war against Omar Ghadafi,
and we would do what was necessary with American resources to
make sure he was driven from power.
The President, in my opinion, according to the War Powers
Act and the Constitution, does not have that authority. And
yet, he is saying on international television right now, at
least I think everybody that was watching would interpret, that
we are, along with France, and England, and our NATO allies
involved in a conflict to destroy the Omar Ghadafi regime.
So, I think that's just wrong, and I support your efforts.
I really congratulate you, Representative Rooney and
Representative Gibson, for working on this. It's extremely
important, and anything I can do to help you in your endeavors
to get this thing gone, I'll be glad to do. And with that, I'll
yield back the balance of my time.
Chairman Ros-Lehtinen. Thank you very much, Mr. Burton. And
to wrap up our hearing, Dr. Paul is recognized from Texas.
Thank you.
Mr. Paul. Thank you, Madam Chairman.
First, I want to thank Mr. Connolly for his comments, and
his questions, because I believe they were very pertinent, as
well as Mr. Berman, because he had some concerns that I've had,
as well, dealing with the obligations under treaty. And I do
appreciate the fact that Mr. Gibson has come by my office to
discuss these, and we've had our little debates on this, but I
do want to follow-up with it, because I do have the concerns
about this obligation.
Actually, the way I understand, NATO, United Nations is
that it still requires, it doesn't say that we automatically go
to war, we have to live within our Constitution. We have to
come and get the proper authority under NATO and the United
Nations. Matter of fact, I do believe that it was the League of
Nations that failed because it did not require congressional
approval, and that's why the American Government didn't support
it.
But, nevertheless, I agree that there's a lot of
ambiguities, and certainly today the legal opinion that I just
read for the President, that we were obligated in order to
maintain the credibility of the United Nations. So, they're
using this as an authority.
Ambiguities, I believe, are very strong here. But I am not
sure that adding to the bill, and to the War Powers Resolution
that we have obligations under treaties, since our treaties,
though, are so carelessly interpreted. So, I don't want to get
too much into this, because you've already talked about this a
good bit. But let us say that your bill was the law of the
land, what--how would the President have been obligated to act
differently when it came to Libya?
Mr. Gibson. Given that the stipulations, declaration of
war, authorization of force, or national emergency by attack
upon the United States, its possessions, their armed forces, or
imminent threat of attack was not present, the President would
have had to have come here and receive the assent from the
American people by way of their representatives.
Mr. Paul. But could you not have said that without your
phrase ``obligations of treaty?'' That doesn't give you that
information, right?
Mr. Gibson. It's possible. The reason why I have put it in
the bill is because I don't think that--I don't think this has
been discussed enough in our discourse, that we have--the
American people, we have made--we have given our word in seven
different pacts between 1947 and 1960, even though there shall
be a vote consistent with our constitutional procedures.
Let's recognize how weighty that vote would be. We would
be, essentially, voting whether or not we're going to stick by
what we said we were going to do. So, I mean, I think you would
agree that that would a difficult vote to vote no.
Mr. Paul. Well, I have trouble with it, because I think
there's going to be more ambiguities. You know, I stated
earlier that I don't even like the War Powers Resolution,
because I think it undermines the Constitution and
congressional authority, and hasn't done well for us. But the
one part of it that sort of--it was intended to protect the
Congress. And the reason the Presidents all considered the War
Powers Resolution unconstitutional, because they want more
power. And that is the requirement to report back, so I
actually am concerned about removing the fact that they are
required to come back in.
So, if we raise the ambiguity level by saying we can go to
war under an interpretation of a treaty, then all of a sudden
we don't have this extra protection, probably makes my case for
why do we have this War Powers Resolution, but I'm not--I don't
think that strengthens the congressional position by removing
that requirement.
Mr. Gibson. Well, let me clarify. Section 3 of the War
Powers Act is retained. It's Sections 5, 6, and 7 that are
deleted. In Section 3, the President reports within 48 hours
given that he is in compliance. That is not being deleted. It's
the reporting requirements subsequent to that, the 30, the 60,
the 90 day reports that are considered really not relevant any
more. It's Section 3 that's affirmed.
So, let me just offer you one thing, sir, is that my sense
is that you're more concerned with the treaties than you are,
necessarily, about the bill. And that may be a fair point, and
something that a new generation of leaders can discuss, but I
just want to raise the level of consciousness, that the
American people in their former leaders gave their consent to
certain things that certainly would come before a vote. But,
again, the difficulty in that vote, given the fact that the
American people gave their word.
Now, one last thing, sir, I wanted to say, is that just as
it's important that we dialogue here, Democrats and
Republicans, the American people coming together and having
this conversation, this won't work unless we get the President
to sign it. That's part of the reason why we're here today, is
that we need to work with the President to make sure that he
agrees to this. And you may say well, why would the President
agree to this? I mean, this would limit his powers.
The point is that given our current status today, it
benefits no one. Here we are having this hearing because the
administration, it's unclear whether or not they're on
constitutional grounds.
I would think that the President, whomever it is, would be
interested in bringing clarity to the situation. And that's why
I think it's important that we all work together, and we work
with the administration to come to an agreement about where we
should be on War Powers in relation to the founders' intent.
Mr. Paul. Madam Chairman, my time has expired, but may I
have one short question?
Chairman Ros-Lehtinen. Without objection.
Mr. Paul. Thank you. I would like to ask Mr. Rooney this
question. I know you've deferred and didn't want to
particularly discuss Mr. Gibson's bill. But since you've been a
professor of Constitutional Law, I think it would be nice to
have your opinion.
That phrase that he wants to add into about obligations
under treaties, would you care to make any comment about that?
Mr. Rooney. Yes. Certainly, I think that there, obviously,
is mention of that in the Constitution. And with regard to what
you were asking before, one of the concerns that I have,
certainly, with the way that the President--this President has
moved forward, and some of the comments that have come out of
the administration that deal with kind of like the new way that
we're going to go to war in the future under the Obama
doctrine, is if it's small, humanitarian, we have NATO, there's
no need for Congress to get involved. And somehow, to go to
your question, that trumps what our role is, that concerns me
greatly.
But, again, as I said before, those words have been used by
prior administrations. This humanitarian idea was used by
Clinton, so we're not in unchartered territory. And, possibly,
new legislation that trumps the War Powers Resolution might
bring clarity, but I think that what my resolution simply says
is just let's act within accordance of the law.
If the President took the time to follow the law when it
came to notifying us within 48 hours, and obviously has some
interest, as Representative Gibson said, in following the law,
but it's where we go from there that we always sort of have the
wheels come off. So, I would just say that if we don't continue
to assert ourselves, of course, we have the power of the purse
in the end. But I think that we shouldn't stop this fight just
because we do or don't like the War Powers Resolution, and what
it says therein.
Chairman Ros-Lehtinen. Thank you.
Mr. Paul. I thank you, and I yield back.
Chairman Ros-Lehtinen. Thank you, Dr. Paul. And Mr. Berman
is chomping at the bit, just to make a little clerical
clarification to Mr. Rooney's bill.
MR. Berman. Yes. I want to make it--well, make it clear to
Representative Rooney, my comment about hypocrisy was about us
as an institution, and those of us who haven't introduced a
sense of Congress resolution, little less a change in the law,
or an amendment to cut off funding may be in the world of the
hypocrisy meter of higher hypocrisy than those who have.
But, secondly, just to come back to the point Mr. Paul was
making. I'm still trying to understand the treaty issue, Mr.
Gibson, in your bill. I mean, it's good to have a conversation,
but is that the only purpose of that provision? If you still
have to get the authorization, what are you saying about
countries with whom we have treaties? And then just to take Mr.
Connolly's question on Africa, what if it's a civil war in a
country with whom we have a treaty?
Mr. Gibson. I've reviewed in the process of this research,
I've been through all seven defense agreements that we have,
and there isn't one that meets that hypothetical. So, I guess
that's the way I'd answer that response to you.
What I will say is this. Let me answer your question first,
and that is that I put it in there to raise the level of
consciousness really to our body that we have given, we, the
people, have given our word to this. Yes, the stipulation says
we shall take a vote, but I guess what I'm trying to
communicate----
Mr. Berman. You're saying it's sort of, guys, weigh the
fact that they are a treaty partner as you cast your vote.
Mr. Gibson. Right. And I--what I'd also tell you, sir, is
that if we don't think that that's still our position, then we
have a responsibility to move to repeal the treaty. So, I think
it's incumbent upon every generation of leaders to take a look
at the responsibilities that we have attendant to our word
going forward.
Chairman Ros-Lehtinen. Thank you, Mr. Gibson. I'm generous,
but not extravagant. And we will continue this discussion
tomorrow on the War Powers Act, and we'll have another set of
experts.
And with that, the committee is adjourned. Thank you,
ladies and gentlemen.
[Whereupon, at 12:10 p.m., the committee was adjourned.]
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